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Civil Appeal No 757 of 1988.
From the Judgment and Order dated 14.8.1986 of the Allahabad High Court in F.A. No. 448 of 1978.
G. Ramaswamy, Additional Solicitor General, Pramod Swarup and P. Parmeshwaran for the Appellants.
R.P. Gupta for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
The appeal is disposed of by the judgment hereunder.
It appears that on or about 18th September, 1969, four agreements were entered into between M/s. L.K. Ahuja & Co. and Union of India, represented by the Executive Engineer, Northern Railway, Allahabad, for the construction of certain quarters.
It was followed by supplementary agreement entered into sometime in 1972.
It is stated that all the four contracts were executed and completed by the first respondent on diverse dates.
The last one was on 30th May, 1971.
Between 29th May, 1972 to 19th June, 1972, the respondent accepted the four final bills and gave no claim declaration in respect of the four contracts.
The respondent wrote a letter to the Additional Chief Engineer, R.E.N.R. Allahabad, stating that Rs.1,91,137 were due on account of the work executed and requested him to refer the dispute to the Arbitrator.
On 4th June, 1976 a reply was sent to the above letter stating that there was no dispute between the parties and, hence, no question of appointment of any Arbitrator arose.
On 13th December, 1976, an application was filed by the respondent in the Court of Civil Judge, Allahabad, for appointment of an Arbitrator under Section 20 of the (hereinafter called `the Act ').
That application was dismissed on 10th February, 1978 as being barred by limitation.
There was an appeal from the said decision to the High Court of Allahabad and the High Court by its impugned Judgment and Order dated 14th August, 1986 allowed the appeal.
Hence, this appeal.
The sole question, involved in this appeal, is whether the High Court was right in dismissing the application.
In matters of this nature, the main question is whether the application under Section 20 was within time.
Though there was some doubt before but now it is well 405 settled in view of the decision of this Court in Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amson & Beson, Kerala, ; that Article 137 would apply to any petition or application filed under any Act to a Civil Court.
The Words "any other application" this Court held under Article 137, cannot be read on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in part I of the third division.
The aforesaid view has to be harmonised with the view of this Court in Wazirchand Mahajan & Anr.
vs Union of India, ; There this Court found that the second appellant had purchased from the Himachal Pradesh Government the right to extract and collect certain medicinal herbs from the forests of Chamba District.
The period of agreement was one year from September 1, 1960.
Under an arbitration clause in the agreement all disputes between the parties were to be referred to the Deputy Commissioner, Mandi District Himachal Pradesh.
The second appellant transferred all his rights under the agreement to the first appellant with the consent of the State of Himachal Pradesh.
Disputes arose between the parties in October, 1950.
On May 30, 1952 the appellants addressed a letter to the Chief Conservator of Forests, Himachal Pradesh requiring that officer to submit the matters in difference to the arbitration of the Deputy Commissioner, Mandi Distt.
By a letter dated June 23, 1952, the Chief Conservator declined to agree to a reference contending that the matters desired to be referred were outside the arbitration clause.
On June 22, 1955 the appellants applied to the District Court of Chamba for an order that the agreement be filed in Court and the disputes between them and the State be referred to the sole arbitration of the Deputy Commissioner of Mandi Distt.
The State of Himachal Pradesh contended, inter alia that the application for filing the arbitration agreement was barred by law of limitation as the right to apply if any arose in 1950 and not in June, 1952 as alleged.
The Court of First Instance held in favour of the appellants.
In appeal the Judicial Commissioner reversed the order of the Trial Court.
In the view of the Judicial Commissioner an application for filing an arbitration agreement under Section 20 of the Act was governed by Article 181 of the Limitation Act, 1908 and since the period of three years prescribed thereby commenced to run from the date on which the differences arose between the parties from the month of September, 1950 and in any case on September 1, 1951, the application of the appellants was held to be barred.
The Judicial Commissioner was in error, hence, according to this Court in rejecting the application of the appellants for filing the arbitration agreement as barred under Article 181 of the Limitation 406 Act.
It was reiterated that the terms of Article 181, though general and apparently not restricted to applications under the Code of Civil Procedure have always been interpreted as so restricted.
In the aforesaid background this Court directed the arbitration agreement to be filed.
This question was again considered by this Court in Mohd. Usman Military Contractor, Jhansi vs Union of India, Ministry of Defence, There the appellant had entered into a contract with the Government of India.
The contract contained an arbitration clause.
For certain supplies made under the contract the appellant made representations to the Government for payment and for arbitration of disputes.
On or about July 10, 1958 Government refused to refer the matter for arbitration.
On July 11, 1961 the appellant filed an application in the Court of District Judge under Sections 8 & 20 of the Act, for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the Court.
The respondent contended that the application was barred by Limitation.
The learned District Judge allowed the application, holding that there was no limitation for making an application under Sections 8 & 20 of the Act.
The defendant 's appeal was dismissed by the High Court as incompetent insofar as it challenged the order under Section 8 but was allowed insofar as it challenged the order under Section 20 of the Act.
The High Court held that an application under Section 20 was governed by Article 181 of the Indian Limitation Act, 1908.
In coming to this conclusion the High Court took into account the settled judicial view that the operation of Article 181 was limited to applications under the Code of Civil Procedure and reasoned that Article 181 should be construed as if the words `under the Code ' were added in it.
The repealed para 17 of the second schedule to the Code and re enacted it in Section 70 with minor modifications.
That being so Section 8(1) of the applied and the implied reference in Article 181 to para 17 of the second schedule to the Code should be construed as a reference to Section 20 of the Act.
In the appeal by certificate this Court held that by the the Legislature amended Articles 158 and 178 of the Limitation Act and made them applicable to the relevant proceedings under the but no similar change was made in Article 181.
It was manifest that save as provided in Articles 158 & 178 there would not be any limitation for other application.
In the circumstances the Court found it impossible to construe the implied reference in Article 181 as a reference to the , or to hold that Article 181 applied to applications under that Act.
In the premises the Court held that an application under Sections 8 & 20 of 407 the was not governed by Article 181 of the Limitation Act.
In that view of the matter the application was held to be barred by limitation.
The question is now concluded as mentioned hereinbefore vide this Court 's decision in Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amsom & Besom, (supra).
It appears that these questions were discussed in the decision of the Calcutta High Court in Jiwnani Engineering Works P. Ltd. vs Union of India, where (one of us Sabyasachi Mukharji) was a party and which held after discussing all these authorities the question whether the claim sought to be raised was barred by limitation or not, was not relevant for an Order under Section 20 of the Act.
Therefore, there are two aspects.
One is whether the claim made in the arbitration is barred by limitation under the relevant provisions of the Limitation Act and secondly, whether the claim made for application under Section 20 is barred.
In order to be a valid claim for reference under Section 20 of the , it is necessary that there should be an arbitration agreement and secondly differences must arise to which the agreement in question applied and, thirdly, that must be within time as stipulated in Section 20 of the Act.
In the instant case it appears that there was an arbitration agreement as found by the High Court covering the disputes.
It is also obvious that differences existed.
There was an assertion of claim and denial of the same.
It is stated in the judgment of the High Court that under the agreement the appellants had claimed a sum of Rs. 1,91,636 and, as such, the dispute was liable to be referred to arbitration in terms of the agreements entered into between the parties.
Further, for the purpose of getting an arbitrator appointed, a letter dated June 4, 1976 was sent by the appellant to the Additional Chief Engineer, Allahabad.
The respondent did not take any step in time.
The appellant filed an application on 4.6.1976 under Section 20 of the Act.
It was contended before the learned Trial Judge that the work under all the four contracts had been fully executed by the appellant on different dates and the respondents claimed that the appellant had accepted full and final payment of the agreements which had been executed by it and no claim declaration in respect of the same had been given by the appellant.
It was, therefore, submitted that since there was no dispute, the application filed under Section 20 of the Act, was misconceived.
The Trial Court held that the Court had no jurisdiction under Section 20 of the Act.
The respondent came up in appeal before the High Court.
The question, therefore, was whether there was a valid claim under section 20 of the Act to be referred in accordance with law.
408 In view of the well settled principles we are of the view that it will be entirely a wrong to mix up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act and, secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time.
The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making an Order under Section 20 of the , to be barred by limitation.
In order to be entitled to ask for a reference under Section 20 of the Act, there must be an entitlement to money and a difference or dispute in respect of the same.
It is true that on completion of the work, right to get payment would normally arise and it is also true that on settlement of the final bill, the right to get further payment gets weakened but the claim subsists and whether it does subsist, is a matter which is arbitrable.
In this case the claim for reference was made within three years commencing from April 16, 1976 and the application was filed on December 18, 1976.
We are, therefore, of the view that the High Court was right in this case.
See in this connection the observations of this Court in Major (Retd.) Inder Singh Rekhi vs D.D.A., ; In the aforesaid view of the matter this appeal must fail and is accordingly dismissed.
The costs of this appeal would be the costs in the arbitration proceedings.
S.L. Appeal dismissed.
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% Four agreements were entered into between the respondent and the appellant Union of India through the Executive Engineer, Northern Railway, followed by a supplementary agreement.
All the four contracts were executed and completed by the respondent on diverse dates.
The respondent accepted four final bills and gave no claim declaration in respect of the four contracts.
Thereafter, the respondent wrote to the Additional Chief Engineer, R.E.N.R., that Rs.1,91,137 were due on account of work executed and asked for a reference of the dispute to the Arbitrator.
A reply was sent to the respondent that there was no dispute between the parties and no question of appointment of any Arbitrator arose.
The respondent then filed an application in the Court of Civil Judge for the appointment of an Arbitrator under Section 20 of the (`the Act ').
The application was dismissed as being barred by limitation.
An appeal from the decision of Civil Judge was allowed by the High Court.
The appellants then moved this Court for relief by this appeal.
Dismissing the appeal, the Court, ^ HELD: The sole question involved in this appeal was whether the Civil Judge was right in dismissing the application and whether the application under section 20 was within time.
[404H] It is well settled in view of the decision of this Court in Kerala State Electricity Board, Trivendrum vs T.P.K.K. Amsom and Besom, Kerala, ; that Article 137 would apply to any petition or application filed under any Act in a Civil Court.
The words "any other application", this Court held under Article 137, cannot be read on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division.
[405A B] 403 There are two aspects of the matter.
One is whether the claim made in the arbitration is barred by limitation under the relevant provisions of the limitation Act, and secondly, whether the claim made for application under section 20 is barred.
To be a valid claim for reference under section 20 of the , it is necessary that there should be an arbitration agreement and secondly, differences must arise to which the agreement in question applied, and thirdly, that must be within time as stipulated in section 20 of the Act.
In this case, there was an arbitration agreement as found by the High Court, covering the disputes.
It was also obvious that differences had existed.
There was assertion of claim and denial of it.
As such, the dispute was liable to be referred to arbitration in terms of the agreements between the parties.
The question was whether there was a valid claim under section 20 of the Act to be referred in accordance with law.
[407C E, G H] In view of the well settled principles, it would be entirely wrong to mix up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act and, secondly, whether the claim to be adjudicated by the arbitrator was barred by lapse of time.
The second is a matter which the arbitrator would decide unless on admitted facts a claim is found at the time of making an order under Section 20 of the Act, to be barred by time.
To be entitled to ask for a reference under section 20 of the Act, there must be entitlement to money and a difference or a dispute in respect of the same.
It is true that on completion of work the right to get payment would normally arise and it is also true that on settlement of the final bill, the right to get further payment gets weakened but the claim subsists, and whether it does subsist is a matter which is arbitrable.
In this case, the claim for reference was made within three years commencing from April 16, 1976, and the application was filed on December 18, 1976.
[408A D] The High Court was right in this case.
See in this connection the observations of this Court in Major (Retd.) Inder Singh Rekhi vs D.D.A., ; The appeal failed.
[408D] Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amsom and Besom, Kerala, ; ; Wazirchand Mahajan & Anr.
vs Union of India, ; ; Mohd. Usman Military Contractor, Jhansi vs Union of India, Ministry of Defence, ; Jiwnani Engineering Works P. Ltd. vs Union of India, and Major (Retd.) Inder Singh Rekhi vs D.D.A., ; referred to. 404
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Civil Appeal No. 2295 of 1968.
From the Judgment and order dated 3 2 1967 of the Madhya Pradesh High Court in Misc.
Petition No. 26 of 1966.
Harbans Singh for the Appellant.
Raghunath Singh and Manojswarup for Respondent No.1.
S.K. Gambhir for Respondents 3 5 and 7.
U. P. Lalit,B.P.Muheshwari and Suresh Sethi for Respondent No. 6.
The Judgment of the Court was delivered by UNTWALTA, J.
In this appeal by certificate granted by the Madhya Pradesh High Court the question of law which Lalls for our determination is whether conferral of Bhumiswalnli rights on Shri Khushi Lal respondent No. 1 in respect of the lands in question in accordance with Section 190 of the Madhya Pradesh Land Revenue Code, 1959, hereinafter referred to as the M.P. Code of 1959, by the Revenue Authorities is correct and sustainable.
Maulana Shamsuddin, the sole appellant in this appeal, was a Muafidar in the erstwhile State of Bhopal of the disputed lands in accordance with the Bhopal State Land Revenue Act, 1932 (for brevity, the Bhopal Act of 1932) .
The first respondent claimed to be a Shikmi of the appellant in respect of the lands in question.
His case was that the appellant was the occupant of the lands within the meaning of the Bhopal Act of 1932.
On the coming into force of the M.P. Code of 1959.
the appellant became a Bhumiswami under clause (c) of section 158 and the respondent became an occupancy tenant under section 185 (1)(i)(iv)(b).Thus he became entitled to conferment of Bhumiswami rights under Section 490.
He applied before the Tahsildar, Huzur, respondent No. 5 for mutation of his name as a Bhumiswami in the Revenue records.
The Tahsildar by his order dated the 24th June, 1963 directed Khushi Lal to deposit compensation equivalent to 15 times of the land revenue on the payment of which his name was to be recorded as a Bhumiswami of the holdings.
It appears his name was so recorded on the deposit of the compensation money.
The appellant filed an appeal before the Sub Divisional officers Huzur, respondent No. 4 from the order of the Tahsildar.
His appeal was dismissed by the Sub Divisional officer on the 12th of December, 1963.
The appellant failed before the Additional Commissioner, Bhopal, respondent No. 3 on the dismissal of his second appeal on the 25th August 1996.
He went in revision before the Board of Revenue, (respondent No. 2 ) .
The revision was allowed on the 6th of July, 1965.
The 584 Board held that the appellant was not an occupant within the meaning of Section 2(15) of the Bhopal Act of 1932 and consequently the first respondent was not a Shikmi under the said Act.
He did not become an occupancy tenant under the M.P. Code of 1959 and, therefore, conferral of Bhumiswami rights on him was erroneous in law.
The first respondent filed a Writ Petition in the High Court and succeeded there.
The High Court held that the Board was not right in its view of the law.
The appellant was an occupant and the respondent No. 1 was a sub tenant (Shikmi) under the Bhopal Act of 1932.
Conscquently he became an occupancy tenant entitled to conferment of Bhumiswami rights under the M.P. Code of 1959.
The appellant has preferred this appeal in this Court to challenge the decision of the High Court and for restoration of the order of the Board of Revenue.
Mr. Harbans Singh, appearing for the appellant, Advanced a very fair and able argument to advocate his cause.
He could now and did not dispute that if the appellant was an occupant, the first respondent was a Shikmi under the Bhopal Act of l932 and if that be so then the order of the High Court is unassailable.
But he vehemently contended that the appellant was not an occupant.
Learned counsel for the respondents controverted his argument.
Prima facie the argument, as presented, for the appellant appeared to have substance and force but on a close scrutiny we had no difficulty in rejecting it.
Section 2 of the Bhopal Act of 1932 is the definition section and as usual at the outset it uses the phrase "in this Act, unless there is nothing repugnant in the subject or context,".
Sub section (5) defines "Alienated land" to mean "land in respect of which, pursuant to a grant made by His Highness the Ruler, Government has, in whole or in part, assigned or relinquished its right to receive land revenue, and includes such village waste and forest as are mentioned in the sanad of the grant " Thereafter the sub section says: "If the land revenue is assigned the person to whom such assignment is made is called a "Jagirdar".
If the land revenue is relinquished the person in whose favour such relinquishment is made is called "Muafidar";".
Subsection ( l S) provides: " "occupant" means a person who holds land direct from the Government or would do so but for the right of collecting land revenue having been assigned or relinquished.
" It would thus be seen that if pursuant to the grant made by His Highness the Ruler of Bhopal, Government 's right to receive land revenue was assigned to the grantee then he was called a Jagirdar and 585 it was relinquished then the person in whose favour such relinquishment was made was called Muafidar.
Under the first part of the definition of "occupant" given in sub section (IS) a person who holds land direct from Government would be an occupant and being not a person in whose favour the right to receive land revenue has either been assigned or relinquished will be required to pay to the Government land revenue or rent.
We are using both the words revenue ' and 'rent ' on the assumption that such an occupant being neither a Jagirdar nor a Muafidar would be required to pay some money to the Government for being in occupation of the land.
Under the second part of the definition a Jagirdar or a Muafidar would also be holding land direct from Government but because the right of collecting land revenue has either been assigned or relinquished, strictly speaking, he does not hold land direct from the Government in the sense of paying any land revenue or rent to it because the Government has parted with the right to collect land revenue from him.
We are of the opinion, in agreement with the High Court, that on a careful analysis of the definition of the term "occupant" in section 2(15), it is legitimate to conclude that even a Jagirdar or a Muafidar is an occupant.
He holds land under the Government; on the resumption of the Jagir or the Muafirights by the Government the land reverts back to it.
Payment of land revenue or rent for holding land under the Government was not a sine qua non for making the holder of the land an occupant.
"Rent" is defined in sub section (19) of Section 2 of the Bhopal Act of 1932 to mean "whatever is payable to an occupant in money, kind or service by a shikmi for the right to use land.
" This would show that strictly speaking a person holding the land direct from the Government within the meaning of the first part of the definition in sub section (IS) is not to pay any money to the Government in the shape of rent but what he will be required to pay would be the land revenue.
But a Jagirdar or a Muafidar holding the land under the Government is not required to pay any land revenue.
sub section (21) defines "Shikmi" to mean "a person who holds land from an occupant and is, or but for a contract, would be liable to pay rent for such land to that occupant, but does not include a mortgagee or a person holding land directly from Government.
" Respondent No. 1 was inducted upon the land by the appellant in the year 1958.
Since then he had been cultivating the land.
He could not but be a Shikmi within the meaning of sub section (21 ) .
Mr. Harbans Singh was not right in saying that he was a mere cultivator and was cultivating the land not as a sub tenant or a Shikmi but must be doing so under some special arrangement of cultivating the land as a servant of the appellant or the like.
There is no warrant for such a contention.
586 Section 46 of the Bhopal Act of 1932 runs thus .
"(l) All land to whatever purpose applied and wherever situate, is liable to the payment of revenue to the Government, except such land as has been wholly exempted from such liability by a special grant on His Highness the Ruler or by a contract with the Government, or under the provisions of any law or rule for the time being in force.
(2) Such revenue is called "Land Revenue"; and that term includes moneys payable to the Government for land, notwithstanding that such moneys may be described as premium, rent, quit rent, or in any other manner in any enactment, rule, contract or deed." This section lends support to the view which we have expressed above that a person holding land directly under the Government and not being a Jagirdar or a Muafidar will be liable to pay land revenue to the Government in whatever name the payment of money may be described such as premium, rent, quit rent etc.
The High Court in its judgment has adverted to some sections contained in Chapter VI of the Bhopal Act of 1932.
Section 51 provided for disposal of unoccupied land.
Sub section (1) of section 52 says that a person acquiring the right to occupy land under section 51 will be called an occupant of such land and under sub section (2) all persons who, prior to the commencement of this Act, had been entered in settlement records as responsible for the payment of land revenue to the Government, or who, but for a special arrangement, would have been to responsible, would be deemed to be occupants within the meaning of Section 52.
In our opinion this special arrangement mentioned in sub section (2) cannot be squarely equated with the assignment or relinquishment of the right to receive land revenue envisaged by the Bhopal Act of 1932.
We do not feel inclined to agree with the High Court that the appellant became occupant under section 52(2) of the Bhopal Act of 1932 because he was a person who was entered into settlementt records prior to the coming into force of that Act.
Firstly it is not clear whether the facts so stated in the judgment of the High Court are (quite correct, and, secondly, it is admitted on all hands that the appellant was a Muafidar and, therefore, in our opinion he was an occupant within the meaning of Section 2(15).
Section 54 provided that the rights of an occupant, meaning thereby the occupant as mentioned.
in Section 52, were to be permanent, transferable and heritable.
Ordinarily and generally the rights of a Jagirdar 587 or a Muafidar being occupants within the meaning of Section 2(15) A read with Section 167 were neither transferable nor heritable and in that sense the rights were not permanent.
In our opinion, therefore, the type of occupant who is dealt with in Chapter VI of the Bhopal Act of 1932 is not the type of occupant having the same kind of incidence as defincd in Section 2(15).
As we have already indicated it is a well established principle of law that a particular term defined in the definition section is subject to anything repugnant in the contact of the other provisions of the Statute.
The provisions of Chapter VI being at variance with the definition clause cannot make the occupant described in that Chapter the same occupant as defined in Section 2(15).
Our attention was drawn by the learned counsel for the appellant to Section 167 of the Bhopal Act of 1932 dealing With the restriction ill the rights of the Jagirdars and Muafidar to transfer such rights or create encumbrances on them.
According to the said Section no Jagirdar or Muafidar could "transfer his rights as Jagirdar or muafidar, or, except for such period as he is in possession of his jagir or muafi create an encumbrance on the income thereof." But inducting a person as Shikmi on the land was not prohibited under Section 167.
On the other hand, Section 194 provide(l that all occupant could make a lease of his holding and under certain circumstances it could n(lt be for a term of more than 12 years.
It was then argued that the right of a Muafidar being in the nature of a life grant was valid only for the Life time of the Muafidar.
So the Muafidar could not induct a person as Shikmi who ultimately could become an occupancy tenant entitled to conferment of Bhumisavami rights later on.
This argument has to be staled merely to be rejected.
It may well be that the right of a Shikmi would not have lasted beyond the duration of the right of the Muafidar.
But then, his rights were enlarged by operation or the welfare legislation enacted by the State Legislature for the benefit of the cultivators of the soil in the year 1959.
Section 185(1)(iv)(b) of the M.P. Code of 1959 says: "(1) Every person who at the coming into force of this Code holds (iv) in the Bhopal region (b) any land as a shikmi from an occupant as defined in the Bhopal State Land Revenue Act, 1932 (IV of 1932): 588 shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code.
" As held by us above the appellant was an occupant as defined in the Bhopal Act of 1932 and thus under clause (c) of Section 158 on the coming into force of the Code he became a Bhumiswami.
But his Bhumiswami rights were liable to be conferred, under certain conditions, on the occupancy tenant under Section 190.
As a matter of fact in accordance with the said provision the Bhumiswami rights were conferred on respondent No. 1 on payment of compensation being in the amount of 15 times of the land revenue for payment to the appellant.
Our attention was drawn to a recital of facts in the Statement of the case of some of the respondents that the appellant had withdrawn the said amount of compensation.
But we are not resting our judgment on that ground as in our opinion, whether he has withdrawn the amount of compensation or not, he cannot challenge the conferment of his Bhumiswami rights on respondent No. l. which have been validly and legally conferred.
We may now briefly deal with a few more short submissions of the appellant.
In section 185(1)(iv)(a) of the M.P. Code of 1959 it is provided that if a person who at the time of coming into force of tba said Code was holding any land as a sub tenant as defined in the Bhopal State Sub tenants Protection Act, 1952 shall also be called an occupancy tenant.
A copy of this Act could not be made available for our perusal.
But what we get from the order of the Board of Revenue is that a Sub tenant as defined in the Bhopal Act of 1952 means a person who holds a parcel of khud kasta land from a Jagirdar.
Along with this our attention was also drawn to the Bhopal State Sub Tenants (of occupants) Protection Act.
In this Act, section 2(b) runs thus: "The expression "occupant" shall have the same meaning as in the Bhopal State Land Revenue Act, 1932 (IV of 1932) and, for the purposes of this Act, it should also include a muafidar, as defined in Bhopal State Land Revenue Act, 1932 (IV of 1932)".
In other sections of the said Act protection against ejectment was given to the Shikmis.
The argument was that protection to the sub tenants of Jagirdars was given in the Bhopal Act of 1952 and protection to such persons was given in case of sub tenants of Muafidar under the Bhopal Act of 1954 by including Muafidar in the expression 'occupant ' occurring in the said Act.
Counsel, therefore, submitted that if the 589 term 'occupant ' in the Bhopal Act of 1932 had included a Muafidar then there was no necessity of expressly and separately including a Muafidar in the definition of the said expression.
in the Act of 1954.
In our opinion this argument has no substance.
It may be by way of abundant precaution or for putting the matter beyond any shadow of doubt that the expression 'occupant ' was defined in a comprehensive manner in the Bhopal Act of 1954.
Section 3 of the said Act shows that even a Muafidar could sub let a land to a person and induct hi as a Shikmi prior to the coming into force of this Act.
Such a Shikmi got the protection against ejectment by operation of law engrafted in the Bhopal Act of 1954.
After the passing of this Act? he no longer could be said to be a Shikmi only during the life time of the Muafidar but was so even beyond it.
The counsel for the appellant called our attention to a decision of this Court in Begum Suriya Rashid and others vs Stale of Andhra Pradesh(l).
In this case it was held that the muafi grants to the predecessor in interest of the appellants before the Supreme Court were not hereditary or perpetual and the appellants could not claim title as Muafidars even though some contradictory arabic expressions had keen used in the document of grant.
This decision does not advance the case of the appellant any further.
For the reasons stated above, we dismiss this appeal but make no order as to costs.
M.R. Appeal dismissed.
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The appellant was a Muafidar of the disputed land, in the erstwhile Bhopal State, while the first respondent cultivated the said lands as his tenant.
When the M. P. L. R. Code, 1959, came into force, the first respondent claimed that the appellant, as the occupant of the lands within the meaning of S.2 (15) of the Bhopal State Revenue Act, 1932, had become a Bhumiswami u/s 158(C) of the Code of l959, while he himself had become an occupancy tenant u/s 185(1)(iv)(b) and as such, was entitled to conferment of Bhumiswami rights u/s 190 of the same Code.
He ' applied to the Tahsildar, Huzur, for mutation of his name as a Bhumiswarni in the Revenue records.
and was directed to deposit compensation equivalent to 15 times of the land revenue.
Thereafter his name was recorded as a Bhumiswami of the holdings, on the deposit of the compensation money.
The Muafidar appellant 's appeal to the sub Divisional officer, against the Tahsildar 's order, and a second appeal to the additional Commissioner.
were dismissed, but the Board of Revenue allowed his revision application holding that he was not an occupant within the meaning of section 2(15) of the Bop Act of ]932.
and that consequently the first respondent was neither a Chime, nor did he become an occupancy tenant under the M.P. Code of 1959, and therefore conferment of Bhumiswami rights on him was erroneous in law.
, The first respondent filed a writ petition against the Revenue Board 's order, which was allowed by the High Court.
Dismissing the appeal by certificate, the Court ^ HELD: 1.
Under section 2(15) of the Bhopal State Land Revenue Act 1932, a person who holds and direct under the Government would be an ` 'occupant", in whatever name the payment of money may be described such as premium, rent, quit rent etc.
On a careful analysis of the definition, it is legitimate to conclude that a Jagirdar or Muafidar is an occupant.
He holds lands under the Government.
On the resumption of the Jagir or the Muafi rights by the Government, the land reverts back to it.
Payment of land revenue or rent for holding land under the Government was not a sine qua non for making the holder of the land an revenue.
[585 A D, 586 D] Begum Suriya Rashid and Ors.
vs State of Madhya Pradesh [19691] 1 SCR 869 held inapplicable.
The rights of Shikmis were enlarged by operation of tile Madhya Pradesh Land Revenue Code.
Under section 185(l)(iv)(b) a Shikmi became an occupancy tenant, while u/s 190, as an occupancy tenant, he became entitled, under certain conditions, to conferment of Bhumiswami rights of the occupant of he holdings.
A B] 583
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Civil Appeal No. 82 of 1971.
From Judgment and Decree dated 26.2.65 of Allahabad High Court in first appeal No. 457 of 1952.
J.P. Goyal and S.K. Jain for the appellants.
V.C. Mahajan and A. Subhashini for the respondents.
The Judgement of the Court was delivered by SEN, J.
This appeal on certificate brought from the judgment and decree of the Allahabad High Court dated February 26, 1965 reversing the judgment and decree of the Civil Judge, Agra dated August 25, 1952 and dismissing the plaintiffs ' suit for recovery of Rs. 26,000 raises a question of some importance upon s.80 of the Code of Civil Procedure, 1908.
The facts giving rise to this appeal may be shortly stated.
On November 12, 1949, the plaintiffs Ghanshyam Dass and his two minor brothers Shree Ram and Mohan Lal brought the suit out of which this appeal arises, in the Court of the Civil Judge, Agra for recovery of a sum of Rs. 26,000 against the Dominion of India through the Defence Secretary, New Delhi.
It was pleaded that their late father Seth Lachman Dass Gupta entered into a contract with the Governor General in Council for the supply of charcoal to the Military Supply Depot at Agra during the period from April 1, 1943 to March, 31, 1944.
In pursuance thereof, he made necessary supplies and received payments for the same at the contractual rates from time to time.
It was pleaded that tho contract contained an escalation clause viz. clause 8, to the effect that in case the price of charcoal increased by more than 10% of the stipulated rate during the subsistence of the contract, the contractor would be entitled to the price at the higher rate.
It was alleged that from 232 the date of the contract, the rate of charcoal went up continuously to 44.8% in July, August and September 1943, 93.1% in October November and December 1943 and 82.7% in January, February and March 1944.
Accordingly Seth Lachman Dass made a demand for payment of price at the increased rate.
The military authorities paid at the enhanced rate for part of the supplies while for the rest they refused to pay at more than the contractual rate.
Seth Lachman Dass served a notice exhibit A 8 on the Dominion of India through the Defence Secretary under s.80 of the Code of Civil Procedure 1908.
lt appears that before his death,.
On or about September 15, 1948 he received a letter from the military authorities rejecting his claim for payments at the enhanced rate but before he could institute any suit he died on October 28, 1949.
Thereafter, on November 12, 1949 the plaintiffs who ale his three sons, brought the suit as his legal heirs and successors claiming the amount.
The defendants contested the claim inter alia on the ground that the notice exhibit A 8 given by Seth Lachman Dass could not inure for the benefit of the plaintiffs and therefore the suit was bad for want of a notice under s.80 of the Code.
The learned Civil Judge, however, held that no further notice under s.80 was necessary as the notice exhibit A 8 served by the plaintiffs ' father Seth Lachman Dass must enure for their benefit.
He found that the plaintiffs were entitled in terms of clause 8 of the contract to receive a sum of Rs. 20,710.50 p. being the difference between the enhanced rate and the contractual rate for the supplies paid for and accordingly decreed the plaintiffs claim to that extent.
But on appeal the High Court, his decision on the point was reversed upon the view that the notice exhibit A 8 given by the plaintiffs ' father was insufficient and was nota valid notice under s.80 of the Code of Civil Procedure insofar as the plaintiffs were concerned.
The short question involved in this appeal is whether the notice exhibit A 8 given by the plaintiffs ' father Seth Lachman Dass Gupta before his death under s.80 of the Code of Civil Procedure, 1908 would enure for the benefit of the plaintiffs.
Section 80 of the Code as it stood on the date of the institution of the suit, insofar as material, is reproduced below: "80.
Notice: No suit shall be instituted against (the Government) or against a public officer in respect of any act purporting to be done by such public officer in his official 233 capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of (a) in the case of suit against the Central Government . . . a Secretary to that Government: ** ** ** ** and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
" In the celebrated case of Bhagchand Dagadusa & Ors.
vs Secretary of State for India in Council & Ors., the Judicial Committee of the Privy Council held that this section is express, explicit an mandatory and it admits of no implications or exceptions.
The words of Viscount Summer delivering the judgment of the Privy Council have become classical : "Section 80 is express, explicit and mandatory, and it admits of implications or exceptions.
A suit in which (inter alia) an injunction is prayed still "a suit" within the words of the section, and to read any qualification into it is an encroachment on the function of legislation.
Considering how long these and similar words have been read throughout most of the Courts in India in their literal sense, it is reasonable to suppose that the section has not been found to work injustice, but, if this is not so, it is a matter to be rectified by an amending Act.
The Privy Council rejected the contention put forward before them that the section deals with mere procedure and held that the requirements of s.80 are to be strictly complied with and are applicable to all forms of action and all kinds of relief.
It further held that s.80 imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with s.80, the suit was not maintainable, either as to the declaration sought or injunction prayed for.
234 Earlier, in some cases, a liberal construction was put upon the section and it was held that a notice is sufficient if it substantially fulfils its objection in informing the parties concerned of the nature of the suit to be filed, and that a notice is not invalid merely because it is given by two out of three plaintiffs But since the Privy Council judgment in Bhagchand 's case, supra, strict compliance with the terms of s.80 has been enforced and a notice given by one of two plaintiffs has been held to be insufficient.
Again, in a case where the plain tiffs ' father gave notice and then plaintiffs filed a suit after the father 's death, the notice given by the father in respect of the same cause of action was held insufficient : Mahadev Dattatraya Rajarshi vs Secretary of State for India following Buchan Singh vs Secretary of State.
It is plain from the terms of s.80 that the notice must fulfil the requirements set out therein.
It is essential that the notice must state the names, descriptions and places of residence of all the plaintiffs.
A notice must be such as to enable the addressee or the recipient to indentify the claimant.
In Vallayan Chettiar & ors.
vs The Government of the Province of Madras & Anr.
Lord Sumner delivering the judgment of the Privy Council referred to the observations of Lord Sumner in Bhagchand 's case that s.80 is explicit and mandatory and admits of no implications or exemptions, and observed that: "There should be identity of the person who issues the notice and who brings the suit.
To hold otherwise would be to admit an implication or exception for which there is no justification. " .
There, the question was whether a suit brought by two plaintiffs was competent when notice under s.80 was given by only one of them.
The Privy Council having regard to the mandatory requirements of s.80 of the Code held that there was no valid notice and accordingly upheld the judgment of the High Court dismissing the plaintiff 's suit.
So also in Government of the Province Bombay vs Pestonji Ardeshir Wadia & Ors., the Privy Council reiterated the same principles where no notice had been served under s.80 specify 235 ing the names and addresses of all the trustees and therefore the provisions of the section had not been complied with and it was accordingly held that the suit was incompetent.
As to the requirement that the notice must state the cause of action and the reliefs claimed, there is a large body of decisions laying down that a notice under the section should be held to be sufficient if it substantially fulfils its object in informing the parties concerned of the nature of the suit to be filed.
In consonance with this view, this Court in Dhian Singh Sobha Singh & Anr.
vs Union of India, Union of India vs Jeewan Ram, State of Madras vs C.P. Agencies and Amar Nath vs Union of India has held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner or in a manner divorced from common sense.
On this principle, it has been held that notice which states the cause of action and the reliefs described in the annexed copy of the plaint (which forms part of the notice) though defective in form, complies substantially with the section.
The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation.
The relevant passage from the judgment in Dhian Singh Sobha Singh 's case, supra, is set out below: "We are constrained to observe that the approach of the High Court to this question was not well founded.
The Privy Council no doubt laid down in Bhugchand Dagadusa vs Secretary of State that the terms of this section should be strictly complied with.
That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense.
As was stated by Pollock C.B. in Jones vs Nicholls ; "We must import a little common sense into notices of this kind. ' ' Beaumont C.J. also observed in Chandu Lal Vadilal vs Government of Bombay, ILR "one must construe section 80 with some regard to common sense and to the object with which it appears to have been passed 236 The question as to whether notice under s.80 was invalid for want of identity of the plaintiffs directly arose in the case of S.N. Dutt vs Union of India.
There, a notice was served by the appellant who was the sole proprietor of a business styled S.N. Dutt & Co., (in the name of S.N. Dutt & Co.) and thereafter he filed a suit against the Union of India describing the plaintiff as "Surendra Nath Dutt sole proprietor of a business carried on under the name and style of S.N. Dutt & Co.".
This Court upheld the decision of the Calcutta High Court dismissing the plaintiff 's suit holding that the person who issued the notice was not the same as the person who filed the suit.
The contention that the appellant was carrying on business under an assumed name and therefore the notice was valid as S.N. Dutt & Co. was merely the name and style of the business which he was carrying on, was rejected.
The Court held that since no suit could be filed by S.N. Dutt & Co in that name as it was not a partnership firm, it could not give a valid and legal notice in that name, and a valid notice could only be given in the name of S.N. Dutt.
The decision merely reiterates the rule laid down by this Court in Bhagchand that 'section 80, according to its plain meaning, requires that there should be identity of the person who gives the notice with the person who brings the suit".
The Court distinguished the decisions in Dhian Singh Sobha Singh and C.P. Agencies on the ground that the Court was dealing with defect in describing the cause of action and the relief claimed and where it Concerns the relief and the cause of action, it may be necessary to use common sense to find out whether s.80 of the Code has been complied with, and stated: "But where it is a question o f the name of the plaintiff, there is in our opinion (little scope for the use of common sense,) for either the name of the person suing is there in the notice or it is not.
No amount of common sense will put the name of the plaintiff there, if it is not there." In the case of Raghunath Dass.
v Union of India & Anr.
the same question arose but the Court struck a discordant note there.
There, the notice emanated from M/s Raghunath Dass Mulkhraj and in the body of the notice at several places the expression "we" was used.
Further, the plaintiff had purported to sign for M/s Raghunath Dass Mulkhraj but at the same time he signed the notice as proprietor of M/s Raghunath Dass Mulkhraj.
The Court held 237 that was a clear indication of the fact that M/s Raghunath Dass Mulkhraj was a proprietary concern and the plaintiffs was its proprietor.
In repelling the contention that there was no identity of the person who gave the notice with the person who filed the suit the Court observed: "Whatever doubts that might have been possibly created in the mind of the recipient of the notice, after going through the body of the notice as to the identity of the would be plaintiff, the same would have been resolved after going through the notice as a whole.
" There, the plaintiff had averred in the plaint that he was carrying on his business under an assumed name and style of M/s Raghunath Dass Mulkhraj meaning thereby that the concern was a proprietary concern and that the name given to it was only a trade name.
Me had also stated in the plaint that he had given a notice under s.80 of the Civil Procedure Code.
In the written statement filed on behalf of the Dominion of India, the validity of the notice issued was not challenged.
Regarding the notice in question there was only an averment in the written statement that suit was barred by s.80 of the Code as no notice under that section appears to have been served on the Administration.
In repelling the contention That the suit was bad for want of notice under s 80 of the Code, the Court said: "The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation.
The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations.
The purpose of law is advancement of justice.
The provisions in s.80, Civil Procedure Code are not intended to be used as bootstraps against ignorant and illiterate persons.
In this case we are concerned with a narrow question.
Has the person mentioned in the notice as plaintiff brought the present suit or is he someone else ? This question has to be decided by reading the notice as a whole in a reasonable manner.
" 238 In the ultimate analysis, the question as to whether a notice under s.80 of the Code is valid or not is a question of judicial construction.
The Privy Council and this Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice with the person who brings the suit.
This Court has however adopted the rule of substantial compliance in dealing with the requirement that there must be identity between the cause of action and the reliefs claimed in the notice as well as in the plaint.
As already stated, the Court has held that notice under this section should be held to be sufficient if it substantially fulfils its object of informing the parties concerned of the nature of the suit to be filed.
on this principle, it has been held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense.
The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would the recipient to avert the litigation.
In the present case, in the notice exhibit A 8 the name, description and place of residence of the plaintiff Seth Lachman Dass, the father of the plaintiffs, was given but unfortunatory before filing the Suit he died and thereafter within the period of limitation the suit was instituted by his sons on the basis of the said notice.
The notice exhibit A 8 undoubtedly fulfils the requirement of s.80 insofar as the cause of action and the relief claimed are concerned as they are absolutely the same as set out in the plaint.
As stated in Dhian Singh Sobha Singh, the notice must substantially fulfil its work of intimating the parties concerned generally of the nature of the suit intended to be filed and if it does so, it would be sufficient compliance of the section as to the requirement that it should state the name, description and place of residence of the plaintiff, there must be identity of the person who issues the notice with the person who brings the suit Now so far as the name and description of the plaintiff concerned the notice gives the name as Seth Lachman Dass Gupta.
The notice exhibit A 8 duly reached the concerned department and they dealt with the notice.
It is not that the Government had no opportunity to examine the nature of the claim and decide whether its should accept or contest the claim The military authorities served a reply on Seth Lachman Dass before his death that his claim was not acceptable.
There was no other alternative for Seth Lachman Dass but to have brought a suit for the enforcement of his claim.
239 If he could not file a suit due to his death, his right to file the suit A devolved upon his heirs i.e. the plaintiffs.
If the view taken by the High Court is allowed to stand, great injustice would be done to the litigants in the matter of filing suits against the Government.
If fresh notice is insisted upon in such cases, the period of limitation to file a suit may expire in the meantime.
Such a situation is not intended by the Code.
The authorities relied upon by the High Court in non suiting the plaintiffs are of ancient vintage.
In Mahadev Dattattraya Rajarshi 's case, supra, the Bombay High Court relying upon the decision of the Allahabad High Court in Buchan Singh, held that the language of s.424 of the Code of 1882, the predecessor of s.80 of the present Code which was substantially in the same terms, was imperative and absolutely debarred the Courts from entertaining a suit without complying with the provisions of the section.
In Buchan Singh 's case, supra it was observed by the Allahabad High Court at p.191: "If we acceded to this contention, it appears to us that we should be adding words to s.424 which find no place in it.
It would be necessary to add after the words "name and place of abode of the intending plaintiff" some such words as "or of the party through whom such intending plaintiff claims.
" The Court of first instance here tried to distinguish the decision in Buchan Singh on the ground that the word "intending" appearing in s.424 of the 1882 Code had been omitted from s.80 of the present Code, and therefore the word "plaintiff ' j should be construed in a generic sense.
The High Court however following the decision of the Bombay High Court in Mahadev Dattaraya Rajarshi held that the notice must contain the name of the actual plaintiff who could bring the suit adding that "the notice must be given by the person who becomes the plaintiff and by no other".
We are afraid, that is taking too technical a view of the matter.
S.80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the Courts may do justice between the parties.
It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it.
In Sangram Singh vs Election Tribu 240 nal, Kotah & Anr., Vivian Bose, J. in his illuminating language dealing with the Code of Civil Procedure said: "It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up.
Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
Our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defecated on mere technicalities".
Here, all the requirements of s.80 of the Code were fulfilled.
Before the suit was brought, the Dominion of India received a notice of claim from Seth Lachman Dass.
The whole object of serving a notice under 5.80 is to give the Government sufficient warning of the case which is going to be instituted against it was that the Government, if it so wished, settle the claim without litigation or afford restitution without recourse to a court of law.
That requirement of s.80 was clearly fulfilled in the facts and circumstances of the present case.
It is a matter of common experience that in a large majority of cases the Government or the public officer concerned make no use of the opportunity afforded by the section In most cases the notice given under s 80 remains unanswered till the expiration of two months provided by the section.
It is also clear that in a large number of cases.
as here, the Government or the public officer utilised the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section.
It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiffs, the legal heirs of Seth Lachman Dass on the ground that no fresh notice had been given by them.
This was obviously a technical plea calculated to defeat the just claim.
Unfortunately, the technical plea so raised prevailed with the High Court with the result that the plain tiffs have been deprived of their legitimate dues for the last 35 years, 241 The Law Commission in the Fourteenth Report, volume 1 on the Code of Civil Procedure, 1908 at p.475 made a recommendation that s.80 of the Code should be deleted.
It was stated as follows: "The evidence disclosed that in a large majority of cases, the Government or the public officer made no use of the opportunity afforded by the section.
In most cases the notice given under section 80 remained unanswered till the expiry of the period of two months provided by the section.
It was also clear that in a large number of cases, Governments and public officers utilized the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section.
These technical defences appeared to have succeeded in a number of cases defeating the just claims of the citizens.
" The Law Commission in the Twenty Seventh Report on the Code at pp.21 22 reiterated its earlier recommendation for deletion of s.80 and in the Fifty Fourth Report at p.56 fully concurred with the recommendation made earlier.
In conformity with the recommendation of the Law Commission, s.80 has undergone substantial changes.
By s.27 of the Code of Civil Procedure (Amendment) Act, 1976 which was brought into effect from February 1, 1977, the existing s.80 has been re numbered as s.80(1) and sub ss.(2) and (3) have been inserted.
Sub s.(2).
as inserted has been designed to give an urgent and immediate relief against the Government or the public officer with the leave of the Court.
But the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.
Proviso to sub s.(2) enjoins that the Court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub s.(1).
Sub s.(3) as inserted by s.27 of the Code of Civil Procedure (Amendment) Act.
1976 reads as follows : "80(3).
No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be 242 dismissed merely by reason of any error or defect in the notice referred to in sub section (1) if in such notice (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated," By sub.s.(3), Parliament has brought in the rule of substantial compliance.
The present suit would be directly covered by sub s.(3) of s.80 so introduced if the suit had been brought after February 1, 1977.
Unfortunately for the plaintiffs, s.97 of the Amendment Act provides that the amendment shall not apply to pending suit and the suits pending on February 1, 1977 have to be dealt as if such amendment had not been made.
Nevertheless the Courts must have due regard to the change in law brought about by sub s.(3) of s.80 of the Code introduced by the Amendment Act w.e.f. February 1, 1977.
Such a change has a legislative acceptance of the rule of substantial compliance laid down by this Court in Dhian Singh Sobha Singh and Raghunath Dass.
As observed in Dhian Singh Sobha Singh 's case, supra, one must construe s.80 with some regard to common sense and to the object with which it appears to have been enacted.
The decision in S.N. Dutt vs Union of India 's case, supra, does not accord with the view expressed by us and is therefore overruled .
Before parting with the case we consider it necessary to refer to one more aspect.
It has frequently come to our notice that the strict construction placed by the Privy Council in Bhagchand 's case, supra, which was repeatedly reiterated in subsequent cases, has led to a peculiar practice in some Courts.
Where urgent relief is necessary the practice adopted is to file a suit without notice under s.80 and obtain interim relief and thereafter to serve a notice, withdraw the suit and institute a second suit after expiry of the period of the notice.
We have to express our strong condemnation of this highly objectionable practice.
We expect that the High Courts will take necessary steps to put a stop to such practice.
243 The result therefore is that the appeal succeeds and is allowed.
The judgment and decree passed by the Allahabad High Court dated February 26, 1965 are set aside and those of the learned Civil Judge, Agra dated August 25, 1952 are restored with costs throughout.
The plaintiffs shall be entitled to further interest on the decretal amount at 6% per annum from August 25, 1952, the date of the decree passed by the Civil Judge, Agra, till realization.
S.R Appeal allowed.
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The plaintiff 's father Seth Lachhman Dass Gupta entered into a contract with the Governor General in Council for the supply of charcoal to the Military Supply Depot, Agra and received payments for the same at the contractual rate from time to time.
The contract contained an escalation clause viz. cl.8 to the effect that in case the price of charcoal was increased by more than 10% of the stipulated rate during the subsistence of the contract, the contractor would be entitled to the price at the higher rate.
During the period of the contract, the rate of charcoal went up continuously.
The military authorities paid at the enhanced rate for the part of supplies while for the rest they refused to pay more than the contractual rate.
He accordingly served a notice to the Government under section 80 of the Code of Civil Procedure, 1908 making a claim for payment of a sum of Rs. 20,710.50 p. in terms of clause 8 of the contract being the difference between the enhanced rate and the contractual rate for the supplies paid for.
But before he could bring the suit against the Government, he died.
Thereupon, the respondents brought a suit as his legal heirs and successors claiming the amount.
The defendants contested the claim inter alia on the ground that the notice given by Seth Lachhman Dass could not ensure for the benefit of the plaintiff 's and therefore the suit was bad for want of notice under section 80 of the Code.
The Court of first instance held that no further notice under section 80 was necessary as the notice served by the plaintiff 's father Seth Lachhman Dass must inure to their benefit.
on appeal, the High Court reversed his decision on the point and held that the notice given by the plaintiff 's father was insufficient and was not a valid notice under section 80 of the Code insofar as the plaintiff 's were concerned.
Against the judgment, the plaintiff 's preferred an appeal by special leave.
Allowing the appeal, the Court 230 ^ HELD: 1.
The question as to whether a notice under section 80 is valid or not is a question of judicial construction.
section 80 of the Code is but a part of the .
Procedure Code passed to provide the regulation and machinery, by means of which the courts may do justice between the parties.
It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it.
As far as possible, no proceedings in a court of law should be allowed to be defeated on mere technicalities.
This is the principle on which ours laws of procedure are based.
[238A, 239G H, 240A C] 2.
The whole object of serving a notice under section 80 is to give the Government sufficient warning of the case which is going to be instituted against it and that the Government, if it so wished can settle the claim without litigation or afford restitution without recourse to a court of law.
Though the terms of section 80 have to be strictly complied with, that does not mean that the notice should be scrutinised in a pedantic manner divorced from common sense.
The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation.
If the notice substantially fulfills its work of intimating the parties 'concerned generally of the nature of the suit intended to be filed, it would be sufficient compliance of the section.
While interpreting the pre amended section the courts must have due regard to the change in law brought about by sub section
(3) of section 80, which shows legislative acceptance of the rule of substantial compliance instead of strict compliance.
[240D E, 242C E] Sangram Singh vs Election Tribunal Kotah relied on.
In the present case the requirement of section 80 that there must be identity between the cause of action and the relief claimed in the notice as well as in the plaint, 15 fulfilled.
As regards the requirement of identity of the person who issues the notice with the person who brings the suit, in this case the notice contained the name of the original claimant i.e. the father of the plaintiffs.
The . notice reached the concerned department of the Government where the Government had opportunity to ' examine the nature of the claim and decide whether it should accept or contest the claim.
The concerned Government authorities served a reply on the plaintiff 's father that his claim was not acceptable.
There after he died and his right to file the suit for enforcement of the claim having devolved upon his heirs i.e. the plaintiff 's, the plaintiffs filed the suit for enforcement of the same claim.
In the circumstances, if section 80 is held to have not been complied with, as done by the High Court, great injustice would be done to the plaintiffs in the matter of filing suits to the Government inasmuch as in case of insistence on fresh notice, the period of limitation to file the suit would expire in the meantime.
Such a situation is not intended by the Code.
Thus the requirement of section 80 was clearly fulfilled in this case but the High Court having allowed the technical plea of the defendants, the plaintiffs have been deprived of their legitimate claim for at least 35 years.
[238D H, 239A C, 240G H] S.N. Dutt vs Union of India, [1962]1 S.C.R. 560; Mahadev Dattatraya Rajshri vs Secretary of States for India ; and Bachchu Singh vs Secretary of State for India in Council, , overruled.
231 Raghunath Dass vs Union of India, ; ; Union of India vs A Jeewan Ram A.I.R. 1958 S.C. 905; State of Madras vs C.P. Agencies, A.I.R. 1960 S.C. 1309 and Amar Nath Gogra vs Union of India,[1964]1 S.C.R. 651, affirmed.
Bhagchand Dagadusa vs Secretary of State of India in Council, [1927] I.A. 338; Vallayan Chettiar vs Government of the Province of Madras [1947] I.A. 74: and Government of the Province of Bombay vs Pestonji Ardeshir Wadia [1949] 76 I.A. 57; referred to.
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il Writ Petition 747 of 1985.
(Under Article 32 of the Constitution of India).
S.R. Rangarajan and K.B. Rohtagi for the Petitioner.
Manoj Swarup and Miss Lalita Kohli Advocates for the Respondents.
The Judgment of the Court was delivered by PATHAK, CJ.
This writ petition under Article 32 of the Constitution has been filed by Baldev Raj Sharma against an order of the Bar Council of Punjab and Haryana rejecting his application for enrolment as an advocate.
On 4 March, 1972 the petitioner passed the Bachelor of Arts examination from the Punjabi University, Patiala.
In 1978 he joined the Bachelor of Laws (Academic) course in Kurukshetra University.
The course is of two years ' dura tion.
The petitioner completed the course and on 1 January, 1981 he was awarded the degree of Bachelor of Laws (Academ ic) by the Kurukshetra University.
During the year 198 1 the petitioner joined the LL.B. (Professional) course in the third year in Kanpur University as a regular student.
The Kanpur University confers two distinct degrees, LL.B. (General), which is a two year course, and LL.B. (Profes sional), which is a three year course.
A person who has been awarded the LL.B. (General) degree is eligible for admission to the LL.B, (Professional) third year.
The petitioner says that there is no distinction in the Rules and Regulations of the Kanpur University on whether LL.B. (General) course should be pursued by regular attendance or as a non collegi ate student.
It is urged that the LL.B. degree of the Kanpur University is recognised by the Bar Council of India for the purpose of enrolment as an advocate.
The petitioner attended classes as a regular student of the LL.B 864 (Professional) Course third year of the Kanpur University as required by the Rules and Regulations framed by that Univer sity.
He appeared in the final examination and was declared successful.
On 22 July, 1982 the degree of LL.B. (Profes sional) was issued by the Kanpur University to him.
Thereaf ter, on 4 August, 1982 the petitioner applied to the State Bar Council of Punjab and Haryana with the necessary enrol ment fee for enrolment as an advocate under the .
On 26 April, 1983 the Bar Council of Punjab and Haryana denied enrolment to the petitioner as an advocate on the ground that the petitioner has not fulfilled the conditions laid down in Rule 1(1)(c) of the Rules of the Bar Council of India framed under section 7(h) and (i), section 24(1)(c)(iii) and (iiia) and section 49(1)(d).
The detailed grounds of refusal supplied to the petitioner by the Bar Council of Punjab and Haryana state that the petitioner had obtained his Bachelor of Laws degree from the Kurukshetra University as a result of the examination held in April, 1980 as a private candi date.
It was an LL.B. (Academic) degree obtained in two years ' study as a private candidate.
The third year of law was pursued by him as a regular student from V.S.S.D. Col lege, Kanpur of the Kanpur University from which institution he obtained the professional degree.
It was further stated that the petitioner had not fulfilled the conditions laid down in the provisions detailed earlier as he had passed his two years ' law course as a private candidate from Kurukshe tra University and the third year law only by regular at tendance at the V.S.S.D. College, Kanpur.
It appears that the State Bar Council, upon receiving the application of the petitioner for enrolment as an advocate, obtained the opin ion of the Bar Council of India and in conformity with that opinion the State Bar Council has refused enrolment.
Section 24(1)(c) provides as follows: "24.
Persons who may be admitted as advocates on a State roll(1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely: (c) he has obtained a degree in law (i) . . (ii) . . 865 (iii) after the 12th day of March, 1967, save as provided in sub clause (iiia), after under going a three year course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Coun cil of India; or (iiia) after undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academ ic year 1967 68, or any earlier academic year from any University in India which is recog nised for the purposes of this Act by the Bar Council of India.
" Sub clause (iii) of clause (c) of section 24(1) entitles a person to be admitted as an advocate on a State roll if he has obtained a degree in law after 12th March, 1967 after under going three years ' of study in law in any University in India recognised for the purposes of the by the Bar Council of India.
An exception to this is provided by sub cl.
(iii) of cl.(c), under which a person is quali fied for admission as an advocate if he has obtained a degree in law after undergoing a course of study in law, the duration of which is not less than two academic years com mencing from the academic year 1967 68, or any earlier academic year from any University in India recognised for the purposes of the Act by the Bar Council of India.
The petitioner obtained a degree of Bachelor of Laws (Profes sional) from the Kanpur University in the examination of 1981.
He had pursued the third year course only of study pertaining to that degree as a regular student ,of the V.S.S. 'D. College, Kanpur in Kanpur University.
The Bar Council of India has framed Rules under the .
Rule 1(1)(c) of of the Bar Council of India Rules, 1975 provides that except as provided in section 24(1)(c)(iiia) of the a degree in law obtained from any University in the territory of India after 12th March, 1967 shall not be recognised for the purposes of section 24(1)(c)(iii) of the Act unless the conditions specified there are fulfilled, including the condition "that the course of study in law has been by regular, attendance at the requisite number of lectures, tutorials and moot courts in a college recognised by a University".
These rules were replaced by a fresh set of rules in 1984 and the new Rule 1(1)(c) is almost identical.
The Rule clearly requires that the course of study in law should have been by regular attendance for the requisite number of lectures, tutorials and moot courts and practical training.
The Rule envisages that for the entire period of the law course there must be a regular attendance of the student before he can satisfy the conditions necessary for enrolment as an advocate under the .
The Rules amplify what is intended in section 24(1)(c)(iii) 866 of the Act.
The three years ' course of study envisaged by that subclause in the Act intends that the three years ' course of study in law must be pursued by maintaining regu lar attendance.
We are unable to say that there is any inconsistency between the Act and the Rule.
So also in a case falling under cl.
(iii) of section 24(1)(c) of the Act, a course of study in law must be pursued for not less than two academic years in terms of that sub clause and Rule 1(1)(c) will apply to such a case also.
There is a substantial difference between a course of study pursued as a regular student and a course of study pursued as a private candi date.
The policy underlying the relevant provisions of the Bar Council Rules indicates the great emphasis laid on regular attendance at the law classes.
The conditions are specifically spelt out when the Act is read along with the Rules.
When so read, it is plain that a candidate desiring enrolment as an advocate under the must fulfil the conditions mentioned in section 24(1)(c)(iii) or section 24(1)(c)(iiia) read with Rule 1(1)(c) of the Bar Council of India Rules, 1975.
In the present case the petitioner failed to do so.
His application for enrolment was rightly reject ed.
The writ petition is dismissed, but in the circum stances, there is no order as to costs.
P.S.S. Petition dismissed.
|
Sub clause (iii) of cl.
(c) of section 24(1) of the entitles a person to be admitted as an advocate on a State roll if he has obtained a degree in law after 12th March, 1967 after undergoing three years ' of study in law.
Under sub cl.
(iii) of cl.
(c) a person is considered quali fied for admission as an advocate if he has obtained a degree in law after undergoing a course the duration of which is not less than two academic years commencing from the academic year 1967 68 or any earlier academic year.
Rule 1(1)(c) of of the Bar Council of India Rules, 1975 requires that the course of study in law should have been by regular attendance for the requisite number of lectures, tutorials and moot courts and practical training.
The petitioner had obtained his Bachelor of Laws (Aca demic) degree in 1980 as a private candidate.
He then pur sued the third year of law as a regular student from the Kanpur University and obtained the professional degree in 1982.
Thereafter, he applied to the State Bar Council of Punjab and Haryana for enrolment as an advocate under the Act.
The State Bar Council denied enrolment on the ground that he had not fulfilled the conditions laid down in Rule 1(1)(c) of the Rules.
Dismissing the writ petition, HELD: A candidate desiring enrolment as an advocate under the must fulfil the conditions mentioned in section 24(1)(c)(iii) or section 24(1)(c)(iiia) read with Rule 1(1)(c) of the Bar Council of India Rules, 1975.
In the instant case, the petitioner failed to do so.
His applica tion for enrolment was, therefore, rightly rejected.
[866C] Sub clause (iii) of section 24(1)(c) when read along with Rule 1(1)(c) 863 intends that the three years course of study in law must be pursued by maintaining regular attendance.
So also, in a case failing under sub cl.
(iiia) of section 24(1)(c) a course of study in law must be pursued for not less than two academic years and Rule l(1)(c) will apply to such a case also.
The petitioner had passed his two year 's law course as a private candidate and the third year law only by regular attendance.
He was, therefore, not entitled to be enrolled as an advo cate.
[865H 866A, 864E]
|
Appeal No. 104[NT] of 1979.
From the Judgment and Order dated 3.10.1978 of the Punjab and Haryana High Court in 1.]".
Reference No. 60 of 1974.
191 WITH Civil Appeal Nos. 1801 to 1804/89 & 6254 (NT)/90 Dr. V.Gauri Shankar, S.Rajappa, Ms. A. Subhashini and Manoj Arora for the Appellants.
T.A.Ramaehandran and Ms. Janki Ramachandran for the Respond ents.
The Judgement of the Court was delivered by RANGANATHAN, J. These appeals involve a common question and hence can be disposed of by a common order.
The respond ent assessees are steel rolling mills engaged in the manu facture of M.S. (Mild Steel) rods, bars or rounds.
The question for consideration is whether they are entitled to a higher rate of development rebate specified in s.33(1) (b) (B) (i)(a) and to relief under s.80 I (as it stood at the relevant time) of the Income tax Act, 1961.
The answer to this question entirely turns on whether the assessees are engaged in the manufacture or production of any one or more of the articles or things specified in the relevant Schedule to the Act.
They claim that the articles manufactured by them fail under item 1 of the list of articles and things set out in the relevant Schedule which reads: "Iron and steel (Metal), ferro alloys and special steels".
This contention was rejected by Income Tax Officer but has been accepted by the Appellate Assistant Commissioner, the Tribunal and the High Court.
Hence these appeals by the Revenue.
It has been brought to our notice that there is a dif ference of judicial opinion on this issue among the High Courts.
The Calcutta High court in Indian Steel and Wire Products Ltd. vs Commissioner of Income Tax, , and the Allahabad High Court in Commissioner of Income Tax vs Kay Charan Pvt. Ltd., have answered the question in the negative and against the assessee.
On the other hand, the Kerala High Court in C.I. T.v.
Mittal Steel Re rolling and Allied Industries (1 ') Ltd. and CIT vs West India Steel Co. Ltd. , FB.
The Madras High Court in the judgment under appeal, reported as Addl.
Commissioner of Income tax v, Trich Steel Rollling Mills Ltd., , the Punjab & Haryana High Court in C.I.T. vs Krishna Copper and Steel Rolling Mills, (1979) 119 I.T.R. 256; (hereunder appeal) C.I.T.v.
Ludhiana Steel Rolling Mills, ; and the Allahabad High Court in Singh Engineering Works Pvt. Ltd. vs C.I.T., have taken a view in favour of the assessee.
This controversy needs to be resolved.
192 It may be useful, at this stage, to refer to three decisions of this Court, the decisions or observations in which have influenced the High court.
(1) The first of these is State of Madhya Bharat vs Hiralal, (1966) 17 S.T.C. 313.
This case arose under the Madhya Bharat Sales Tax Act.
Under section 5 of the said Act, two notifications had been issued.
The first notifica tion exempted from sales tax certain listed goods, one of which was "iron and steel", while the second notification specified the rates and stages lot levy of sales tax on a number of articles, one of which was"goods prepared from any metal other than gold and silver".
Hiralal, who owned a re rolling mill, purchased scrap iron locally and imported iron plates from outside and, after converting them into bars, flats and plates in his mills, sold them in the market.
He claimed exemption under the first of the above notifications.
This claim was upheld by this Court The judgment of the Court is a short one, the relevant paragraph of which reads as follows: "Learned cournsel for the State contends that the expression "iron and steel means iron and steel in the original condition and not iron and steel in the shape of bars, flats and plates.
In our view, this contention is not sound.
A comparison of the said two Notifica tions brings out the distinction between raw materials of iron and steel and the goods prepared from iron and steel; while the former is exempted from tax, the latter is taxed.
Therefore, iron and steel used as raw material for manufacturing other goods are exempted from taxation.
So long as iron and steel continue to be raw materials, they enjoy the exemption.
Scrap iron purchased by the re spondent was merely re rolled into bars, flats and plates.
They were processed for conven ience of sale.
The raw material were only re rolled to give them attractive and acceptable forms.
They did not in the process lose their character as iron and steel.
The dealer sold "iron and steel" in the shape of bars, flats and plates and the customer purchased "iron and steel" in that shape.
We, therefore, hold that the bars, flats and plates sold by the assessee are iron and steel exempted under the Notification.
The conclusion arrived at by the High Court is correct." (2) The second decision referred to is Devidass Gopal Krishnan vs State of Punjab, (1967) 20 S.T.C. 430.
Here, one batch of appellants before the Court carried on business in rolling steel.
They purchased steel scrap and steel ingots and converted them into rolled steel sections.
They 193 contended that the levy of a purchase tax on the steel scrap and ingots side by side with a sales tax on the rolled steel sections constituted double taxation of the same commodity contrary to the provision of section 15 of the .
This contention was rejected.
It was held that the process by which the steel scrap (or ingot) lost its identity and became rolled steel sections was a process of manufacture and that, since the goods purchased and those sold were different, no question of double taxation arose: (3) The third decision, Hindustan Aluminium Corporation Ltd. vs State of U.P., (1981) 48 S.T.C. 411, involved the interpretation of certain notifications issued under section 3A(2) of the U.P. Sales Tax Act, 1948.
The two notifications with which the Court was concerned prescribed rates of tax at which certain goods were taxable.
item no.6 in the notification of 1973 described the goods as: "All kinds of minerals and ores and alloys except copper, tin, zinc, nickel or alloy of these metals only.
" Item No. 1 of the second notification read: All kinds of minerals, ores, metals, and alloys including sheets and circles used in the manufacture of brass wares and scraps containing only any of the metals, copper, tin, zinc, or nickel except those included in any other notification 'issued under the Act.
" The appellant Corporation, which carried on the business of manufacturing and dealing in aluminium metal and vations aluminium products, claimed the benefit of these notifica tions for its products.
The High Court held that, while aluminium ingots, wire bars and billets would fall in the category of "metals and alloys", rolled products prepared by rolling ingots and extrusions manufactured from billets must be regarded as different commercial commodities from the ingots and billets and therefore outside the category of "metals and alloys".
Such rolled products included plates, coils, sheets, circles and strips.
The extrusions were manufactured in the shape of bars, rods, structurals, tubes, angles, channels and different types of sections.
This conclusion was upheld by this Court The Court referred to the history of the notifications issued by the State Govern ment from time to time in this behalf and came to the con clusion that the inference was irresistible that when such a notification referred to a metal, it referred to the metal in the primary or original form in which it was saleable and not to any subsequently fabricated form.
The Court rejected the contention that the word "all" used in the notification in referring to 194 "all kinds of minerals, ores, metals and alloys" should be given its fullest amplitude so as to include even subse quently fabricated forms of the metal.
The Court felt that this construction was inconsistent with the scheme of the earlier notifications to which reference had been made and observed: "While broadly a metal in its primary form and a metal in its subsequently fabricated form may be said to belong to the same genus, the distinction made between the two constitutes a dichotomy of direct significance to the con troversy before US." After referring to its earlier decisions in State of M.P.v.
Hiralal, (1966) 17 S.T.C. 313, Devi Dass Gopal Krish nan vs The State of Punjab, (1967) 20 S.T.C. 430 and State of Tamil Nadu vs Pyarelal Malhotra, (1976) 37 S.T.C. 3 19, the Court concluded: "We are of the definite opinion that the only interpretation possible is that aluminium rolled products and extrusions are regarded as distinct commercial items from aluminium ingots and billets in the notification issued under the U.P. Sales Tax Act.
" The above decisions were rendered in the context of the Sales Tax Acts and notifications thereunder.
They, however, bring out two points.
First, they make it clear that there is a real and clear dichotomy between "iron and steel" and "products or goods made of iron and steel" and, indeed, between any metal as such and the products or goods fabri cated therefrom.
This is also clear from the various entries in the relevant schedules under the Income Tax Act itself.
For instance, item 2 in the List is: "Aluminium, copper, lead and zinc (Metal).
While ingots and sheets manufactured from scrap have been held to fall under item 2, finished commercial products like alumimum pigments, aluminium arti cles and aluminium caps have been held to tall outside it.
See C.I. T.v.
Rashtriya Metal Industries Ltd., a case under the ; Indian Aluminium Co. Ltd. vs CI.T., ; (1983)140 I.T.R 114 (Cal); Jeewanlal, (1929)Ltd.
vs CI.T. and CI.T. vs Fitwell Caps P. Ltd. 'So also, item 7 refers, inter alia, to "cables" which is only a type of thick copper wire used for the transmission of electricity.
It has been held that insulated copper wires of a type known as winding wires will not fall under item 7 as they are not used for the above purpose and that an industry engaged in its manufacture is not an industry eligible for the reliefs of the kind presently under consideration: See: Hindustan 195 Wire Products vs C.I.T., This deci sion is of no direct relevance here except to point out that no atttempt was made in the case to contend that they will fall under item 2 of the Schedule which covers "aluminium, copper, lead and zinc (metals)".
Item 11 in the Schedule refers to "steel castings and forgings and malleable iron and steel castings".
The expressions "casting" and "forging" refer to processes used in the manufacture or production of articles of iron and steel and also mean, particularly when used in the plural, the articles produced by the process (vide: Glossary of Tenns published by the Bureau of Indian Standards and relating to Iron and Steel: , "Forging").
Item 21 which refers to "Seamless Tubes" also furnishes a similar indication.
There is, therefore, a distinction between the article or thing referred to in the Schedule as "iron and steel (metal)" and articles or things manufactured from "iron and steel".
Secondly, the decision in State of MB.
vs Hiralal, (1966) 17 S.T.C. 313 shows that even the expression "iron and steel" which is wider than the expression we are concerned with as it is not further qualified by the word "metal" was held to mean iron and steel used as raw material for the manufacture of other goods.
The Court held that bars, flats and plates only represented such raw material in attractive and acceptable forms.
Sri Gauri Shankar, for the Revenue, contended that the use of the appellation "metal" in the entry we are concerned with further restricts the nature of the qualify ing industry but we are not inclined to agree.
Obviously it is not used to denote the metal in its pristine form as an ore or as an extraction from the ore.
In the context of a manufacturing industry it is used, we think, for emphasising the distinction between the metal used as a raw material in the manufacture of various articles and the commercial articles made therefrom.
We would, therefore, attach the same meaning to the expression as Hiralal (supra) did.
In that case, the Court held that the bars, flats and pieces turned out by the assessee from the scrap metal were not products manufactured from the raw material but only repre sented the raw material rolled out in attractive and accept able forms.
Per contra, in Devidass Gopal Krishnan, [1962] 20 S.T.C. 430 rolled steel sections were held to be products manufactured from steel scrap and ingots.
But that will not be conclusive here because the relevant provision here contemplates something manufactured out of iron ore or iron scrap.
The question really therefore is: having regard to the nature of the iron and steel industry and its processes, do M.S. bars, rods and rounds represent the raw material for the manufacture of the articles of iron and steel or are they themselves articles made of iron and steel? For deciding the above issue, learned counsel on both sides have placed before us a good deal of literature about the iron and steel industry as well as the glossary of terms used therein: 196 (a) A succinct summary of the processes involved, illus trated by a figurative chart, is given in the very first page of "The Making, Shaping and Treating of Steel", edited by Lankford and others (10th Edition),.
page 1.
It is unnec essary to set out the process in detail here except to note that molten pig iron coming out of the blast furnace and iron scrap are fed into steel making furnaces, wherefrom by a basic oxygen process or electric process or open hearth process, molten steel is ladled out into moulds to form ingots.
There are three stages in the manufacture of the steel: (i) the first stage when ingots are obtained by Lapping and then teeming the molten steel into rectangular moulds; (ii) the second stage where semi finished steel is cast in the form of blooms, billets and slabs by reheating the ingots to an appro priate temperature and rolling or forging them into shapes; and (iii) the production from blooms, billets and slabs again by process of hot rolling, cold rolling, forging, extruding, drawing etc. of finished steel products; bars, plates, structural shapes, rails, wire, tubular products, coated and uncoated sheet steel etc.
all in the many forms required by users of steel.
The third of the processes involves heating the blooms, billets and slabs in heating furnaces and then processing them through various types of mills: (i) Structural mills : for obtaining structural shapes like beams, angles, tees, zees, channels, piling etc.
(ii) Rail mills : for producing standard rails, crane rails and joint bars; (iii) Bar mills : for producing bars which may be flat, round, halfround, triangular, square, haxagonal or octagonal; (iv) Seamless pile mills: for producing pipes and tubes and skelp mills and other tubular products; continuous Butt weld pipe mills (v) Plate mills : for manufacturing plates; and (vi) Hot strip mills : for producing sheets, strips and coils.
and cold reduction mills 197 (b)The Explanatory Not to Chapter 72 (iron and Steel) of the Harmonised Commodity Description and Coding Nomenclature (HCCN) are also on the same lines.
The chapter covers the ferrous metals (pig iron, spilgeleisen, ferro alloys and other materials) as well as certain products of the iron and steel industry (ingots and other primary products and the principal products derived therefrom) of iron or non alloy steel, of stainless steel and of other alloy steel.
It is pointed out that iron ore, waste, scrap metal, pre reduced iron ore and other ferrous waste is converted by reduction in blast furnaces or electric furnaces into pig iron or sponge iron or lump iron.
Electrolysis or other chemical processes are used only when iron of exceptional purity is required for special use.
Most of the pig iron is converted into steel in steel works but some are used in foundries (iron works) for manufacture of ingot moulds, cast iron tubes and pipes and castings and the remainder are cost into the forms of pigs or blocks, m casting machines or sand beds or produced in the form of irregularly shaped lumps (plate iron) or granulated.
Pig iron, cast iron, sponge iron waste and scrap constitute the primary steel making materials.
Steel making processes are either pneumatic or hearth proc esses and the steel produced,by these and other processes are classified in various ways.
Although molten steel may be cast (in foundries) into its final shape in,_ moulds (steel castings), most molten steel is cast into ingots in moulds.
_At the casting, pouring and solidification stages, steel is classified as 'rimming ' or effervescent, 'killed ' or:non effervescent and 'semi killed ' or balanced steel.
After they have solidified and their temperature has been equalised, the ingots are rolled into semi finished productrs (blooms, billets, rounds, slabs, sheet bars) on primary cogging or roughing mills (blooming, slabbing etc.) or converted by drop hammer or on a forging press into semi finished forg ings.
Semi finished products and, in certain cases, ingots are subsequently converted into finished products.
These may be flat products (such as wide flats, universal plates, wild coil, sheets, plates and strip) or long products (such as bars and rods, hot rolled, in irregularly wound coils, other bars, and rods, angles, shapes, sections and wire).
These products are obtained by plastic deformation, hot or cold.
The hot processes are hot rolling, forging or hot drawing and the cold processes.
, are cold rolling, extrusion, wire drawing, bright drawing, centreless grinding or precision turning.
The chapter proceeds to classify the various products in considerable detail. (c) Reference has also been made to the tariff classi fications under the and the Central Excise Tariff Act, 1975.
Our attention was also invited to the Specification and Glossary prepared for the Bureau of Indian Standards by expert Products Sectional Committees on the subject of Iron and Steel.
Extracts were also furnished 198 from the New Encyclopaedia Brittanica Macropaedia (15th Edn., Vol.21), Webster 's Third New International Dictionary, the Encyclopaedia of Chemical Technology by Kirk Othmer (3rd en., Vol.21) and a book on small scale steel making by R.D. Walker.
We do not, however, propose to discuss these ex tracts and definitions as we do not think they can assist us in coming to nay conclusion on the issue before us.
Basically the argument of counsel proceed on the following lines: Sri Ramachandran, learned counsel appearing for the assessee, contends that, in the steel making industry, the manufacture of ingots, billets, blooms, etc. represents only an intermediate stage at which the iron and steel metal becomes semi finished steel.
The semi finished steel is converted into plates, bars or rods which are described as "finished steels.
According to him, the bars, rods and rounds continue to be iron and steel_ m a finished form.
It is only finished steel that is subsequently used to manufac ture, by various processes such as rolling, cutting, shear ing, forging, hammering and so on into various kinds of products, which can be described as products of iron and steel in contrast with 'iron and steel (metal) ', the item covered under the relevant entry of the schedules.
He also draws our attention to a decision of the Calcutta High Court in Indian Aluminium Co. vs CIT, where, while following the earlier decision in Indian Steel and Wire Products Ltd. vs CIT, (1977)108 I.T.R. 802, the court observed that there is really no divergence in view between the Calcutta and Kerala views and that the real question for consideration in each case is whether the articles in ques tion constitute finished products and represent articles of iron and steel or merely represent the raw material viz. iron and steel (metal) in a different form and shape.
On the other hand, Dr. Gauri Shankar, learned counsel for the Department, submits that iron and steel ceases to be a metal when it comes out of the furnace in the primary steel mills in the form of ingots.
At the best, the next stage at which the ingots become semi finished products in the shape of billets, blooms and slabs may also be said only to convert the raw material into a different form or shape.
But, he says, by no stretch of imagination can the next stage during which the billets, blooms and slabs are heated/and passed through various types of mills enumerated earlier be considered as involving not any manufacture but only a conversion of the raw material into other forms or other shapes.
According to the learned counsel, the expres sion "iron and steel (metal)" only comprehends the iron and steel as it emerges in the form of billets, blooms and slabs from the steel mills and that all subsequent products wheth er in the form of 199 rails, rods (including wire rods), bars, angles, channels, tees, zees, pipes, tubes, sheets, strips, plates and coils turned out by the various other types of mills would consti tute articles made of iron and steel.
He also invited our attention to a clarification by the Central Board of Taxes, in response to a query from the Federation of Indian Cham bers of Commerce and Industry, that "rolling mills making bars and rods are not covered by item 1 of the Fifth Sched ule".
We have considered the arguments addressed by both counsel.
In our opinion, Sri Ramachandran is right in con tending that in interpreting the provisions under considera tion, we would do well to keep in mind the background in which concessions to certain basic industries were intro duced in the Income tax Act.
The process started with the introduction of a rebate for exporters under the Finance Act of 1963 which continued till 1966.
The Budget speech of the Finance Minister vide: (1963) 48 I.T.R. (St.) 34 indicates that the incentive was granted to assessees engaged in the manufacture of any articles in an industry specified in the First Schedule to the Industries (Development & Regulation) Act, 1951.
Item 1 of the said Schedule reads: "1.
Metallurgical Industries: A. Ferrous: (1) Iron and Steel (Metal) (2) Feno alloys (3) Iron and Steel castings and forgings (4) Iron and Steel structurals (5) Iron and Steel pipes (6) Special Steels (7) Other products of iron and steel B. Non ferrous (1) Precious metals including Gold and Silver, and their alloys; (IA) Other non ferrous metals and their alloys; (2) Semi manufactures and manufactures.
Again, in 1964,hen the Finance Act of 1964 decided to grant a rebate in the corporation tax payable by companies in order to encourage development of certain industries which occupy an important place in our economy, the list of indus tries named in the Finance Act was similar to and included many of the items, including items 1 to 3, of the list we are concerned with now.
The reliefs were given to strengthen the reserves and augment the capacity of the corporate sector to develop.
This process was 200 continued under the Finance Act of 1965: Vide, (1965) 55 I.T.R. (St.) 57 and 122 which introduced a higher develop ment rebate for machinery or plant installed for the pur poses of construction, manufacture or production of any one or more of the articles or things specified in the list in the Fifth Schedule.
The Finance Act of 1966 substituted a new concession to these priority industries basic to the commercial development of the community.
This historical background reflects the intention of the legislature to grant progressively certain exemptions, reliefs or conces sions for certain types of industries which were considered important for na tional development / The industry in iron and steel and other metals figures in all these lists_) The only relevance of this background to the issue before us is that it gives an indication that the incentive, concession or relief granted under these provi sions has to be construed in a broad and comprehensive manner so as to cover all manufacturing activities legiti mately pertaining to specified core industry with no limita tion save what may be called for by the wording of a partic ular entry.
So far as items 1 and 2 are concerned, as earli er pointed out, the wording points to a distinction between the metal which is used as the base and other articles manufactured therefrom.
We have earlier pointed out that pig iron and iron scrap are fed into furnaces to produce ingots, billets and blooms.
But both are iron and steel in different form, the latter being referred to as "semi finished steel".
Likewise, we think, the bars, rods, rounds, wife rods and the like constitute the second stage in which one gets only "finished" forms of iron and steel.
Having regard to the nature and weight of the metal, it has to be "finished" to assume these forms before manufacturers of iron and steel articles can take over and proceed to manufacture articles from them by drawing wires or converting them into rails or shaping them into tees, zees, pipes, tubes and the like see CI.T. vs Tensile Steel Ltd., or, again, producing articles of iron like ploughs, shovels, pickaxes, lathes, blowers, surface guiders and drills as in C.I.T. vs Ludhiana Steel Rolling Mills, (1989) 180 I.T.R. 155 (P&H).
Whether the article produced is the raw material or an article made of iron and steel has to be decided on the basis of the nature of the article and not the kind of mill which turns it out.
It is significant that these items do not draw distinction between basic steel mills, integrated steel mills and the various other types of mills that are used in the industry which have been referred to earlier.
The Board 's clarification, referred by Dr. Gaurishankar, that the machinery and plant in "rolling mills" will not be eligible for the higher development rebate would not, there fore, seem to be justified if it intends to draw a distinc tion between the same machinery and plant when used in rolling mills and when used in other mills in the industry.
If machinery and plant installed in steel mills where the process 201 includes not merely the production of ingots, billets and the like but also the production of bars and rods are eligi ble for the higher development rebate, it is difficult to see why the same plant and machinery, when installed in rolling mills which proceed, from the stage of ingots or billets, to manufacture bars and rods should not be eligible for the higher rate of development rebate.
In considering the issue before us, we should not be classifications of stages of manufacture that may be carried away by classifi cation of stages of manufacture that may berelevant forother purposes.
We would like to emphasise, at the cost ofrepeti tion, that what we should examine is not the nature of the mill which yeilds the article but the nature of the article or thing that is manufactured and ask ourselves the question whether such article or thing can be considered as raw material for manufactrure of other articles made of the metal or is it itself an article made of the metal.
On this issue our view is, as we have already stated, that the goods in the present case fall in the former category.
We think Sri Ramachandran is right in pointing out that the mild steel rods, bars or rounds which are manufactured by the assessees here are only finished forms of the metal and not articles made of iron and steel.
They only constitute raw material for putting up articles of iron and steel such as grills or windows by applying to them processes such as cutting or turning.
The rod or the wire rods (with which some of the decisions were concerned) are likewise not products of iron and steel but only certain finished or refined forms of the metal itself.
We do not think much assistance can be derived for the interpretation of the provision before us from the Central Excise & Salt Act or the various classifications statutorily or commercially drawn up for that purpose.
They are more refined and intricate classifications for the purposes of excise duty and cannot be imported into the present context.
As we have mentioned earlier, some guidance as to inter pretation of item 1 to the schedule can be derived from item no.11, which refers to "forgings and castings".
These ex pressions obviously refer to articles obtained from the raw material iron and steel by forging and casting.
The argument in some of the decisions referred to before us that item No. 1 should be interpreted strictly because of the existence of item No. 11 seems to proceed on an erroneous basis.
It would be more appropriate to say that forging and castings are not covered by item 1 being articles made of iron and steel but that since the legislature definitely intended to give relief even in respect of such articles, item 11 and (also item 21) were introduced.
In fact, there is some force in the contention urged on behalf of the assessees that even if MS steel rods, bars and rounds cannot be taken as iron and steel (metal), they would fall under the category of "forg ings and castings" referred to in item 11.
We do not, howev er, wish to express any 202 concluded opinion on this aspect because item No. 11 was not relied upon by the assessee at any earlier stage.
In C.A. No. 1404/79, the assessee, Krishna Copper and Steel Rolling Mills, manufactured iron rods and girders out of scrap metal initially converted into billets.
Before the High Court the argument seems principally to have turned on the question whether an assessee manufacturing these arti cles out of iron scrap would be entitled to the higher development rebate.
The assessee cited a circular of the Board that, under item 2 of the schedule, the higher devel opment rebate would be available to an assessee who manufac tured articles from aluminium scrap [vide, circular no.25 D (XIX 16) dated 10th October, 1966].
The High Court, on this basis, answered the question by saying that the assessee before it was also entitled to the higher development rebate though it produced articles only from iron scrap.
This does not really answer the real question but, for the reasons we have already given, we agree with the conclusion drawn by the High Court.
For the reasons stated above we are of the opinion that the view taken by the High Courts in the present cases does not call for any interference.
The appeals, therefore, fail and are dismissed.
But in the circumstances we make no order regarding costs.
V.P.R. Appeal dismissed.
201 includes not merely the production of ingots, billets and the like but also the production of bars and rods are eligi ble for the higher development rebate, it is difficult to see why the same plant and machinery, when installed in rolling mills which proceed, from the stage of ingots or billets, to manufacture bars and rods should not be eligible for the higher rate of development rebate.
In considering the issue before us, we should not be carried away classi fications of stages of manufacture that may be relevant for other purposes.
We would like to emphasise, at the cost of repetition, that what we should examine is not the nature of the mill which yeilds the article but the nature of the article or thing that is manufactured and ask ourselves the question whether such article or thing can be considered as raw material for manufactrure of other articles made of the metal or is it itself an article made of the metal.
On this issue our view is, as we have already stated, that the goods in the present case fall in the former category.
We think Sri Ramachandran is right in pointing out that the mild steel rods, bars or rounds which are manufactured by the assessees here are only finished forms of the metal and not articles made of iron and steel.
They only constitute raw material for putting up articles of iron and steel such as grills or windows by applying to them processes such as cutting or turning.
The rod or the wire rods (with which some of the decisions were concerned) are likewise not products of iron and steel but only certain finished or refined forms of the metal itself.
We do not think much assistance can be derived for the interpretation of the provision before us from the Central Excise & Salt Act or the various classifications statutorily or commercially drawn up for that purpose.
They are more refined and intricate classifications for the purposes of excise duty and cannot be imported into the present context.
As we have mentioned earlier, some guidance as to inter pretation of item 1 to the schedule can be derived from item No. 11, which refers to "forgings and castings" These expressions obviously refer to articles obtained from the raw material iron and steel by forging and casting.
The argument in some of the decisions referred to before us that item No. 1 should be interpreted strictly because of the existence of item No. 11 seems to proceed on an erroneous basis.
It would be more appropriate to say that forging and castings are not covered by item 1 being articles made of iron and steel but that since the legislature definitely intended to give relief even in respect of such articles, item 11 and (also item 21) were introduced.
In fact, there is some force in the contention urged on behalf of the assessees that even if MS steel rods, bars and rounds cannot be taken as iron and steel (metal), they would fall under the category of "forgings and castings" referred to in item 11.
We do not, however, wish to express any 202 concluded opinion on this aspect because item No. 11 was not relied upon by the assessee at any earlier stage.
In C.A. No. 1404/79, the assessee, Krishna Copper and Steel Rolling Mills, manufactured iron rods and girders out of scrap metal initially converted into billets.
Before the High Court the argument seems principally to have turned on the question whether an assessee manufacturing these arti cles out of iron scrap would be entitled to the higher development rebate.
The assessee cited a circular of the Board that, under item 2 of the schedule, the higher devel opment rebate would be available to an assessee who manufac tured articles from aluminium scrap [vide, circular no.25 D (XIX 16) dated 10 th October, 1966].
The High Court, on this basis, answered the question by saying that the assessee before it was also entitled to the higher development rebate though it produced articles only from iron scrap.
This does not really answer the real question but, for the reasons we have already given, we agree with the conclusion drawn by the High Court.
For the reasons stated above we are of the opinion that the view taken by the High Courts in the present cases does not call for any interference.
The appeals, therefore, fail and are dismissed.
But in the circumstances we make no order regarding costs.
V.P.R. Appeals dismissed.
|
The respondents assessees were engaged in the manufacture of mild steel rods, bars or rounds.
They claimed that as the articles manufactured by them fell under item 1 of the list set out in the Fifth Schedule, they were entitled to a higher rate of development rebate specified in section 33(1) (b) (B) (i) (a) and to relief under section 80 1 of the Income Tax Act, 1961.
The Income Tax Officer rejected the claim of the assessees, whereas the Appellate As sistant Commissioner, the Tribunal and High Court accepted their claim.
Hence the Revenue filed appeals before this Court.
The contentions of the appellant Revenue were that iron and steel ceased to be a metal when it came out of the furnace in the primary steel mills in the form of ingots.
In the next stage the ingots became semi finished products in the shape of billets, blooms and slabs.
It was said to be the stage where the raw materi als were converted into.
In different form or shape; that the expression "iron and steel (metal)" meant the iron and steel as it emerged in the form of billets, blooms and slabs from the steel mill and that all subse quent products whether in the form of rails, rods (including wire rods), bars, angles, channels, tees, sees, pipes, tubes, sheets, strips, plates and coils would constitute articles made of iron and steel, and that rolling mills making bars and rods were not covered by item 1 of the Fifth Schedule.
188 On the other hand, the respondents asses sees contended that in the steel industry the manufacture of ingots, billets, blooms, etc.
represented only an intermediate stage at which the iron and steel metal became semi finished steel.
When the semi finished steel was converted into plates, bars or rods, they became finished steel.
The bars, rods and rounds, which were continued to be iron and steel in a finished form, were used to manu facture the products of iron and steel by various processes, such as, rolling, cutting, shearing, forging, hammering, etc.
and that the products of iron and steel were different from that of iron and steel (metal).
Dismissing the appeals filed by the Revenue, this court, HELD: 1.
In interpreting the provisions in S.33(1)(b)(B)(i)(a), S.80 I of the Income Tax Act, 1961, the Court would do well to keep in mind the background in which concessions to certain basic industries were introduced in the Income Tax Act.
The historical background reflects the intention of the legislature to grant progressively certain exemptions, re liefs and concessions for certain types of industries, which were considered important for national development.
The industry in iron and steel and other metals figured in all the lists.
[199 C, 200 B] 2.
The incentive concession or relief granted under the provisions has to be con strued in a broad and comprehensive manner so as to cover all manufacturing activities legitimately pertaining to the specified core industry with no limitation save what may be called for by the wording of a particular entry.
So far as items 1 and 2 are concerned, the wording points to a distinction between the metal which is used as the base and other articles manufactured therefrom.
Pig iron and iron scrap are fed into furnaces to produce ingots, billets and blooms.
But both are iron and steel in different forms, the latter being referred to as "semi finished steel".
Like wise, the bars, rods, rounds, wire rods and the like constitute the second stage in which one gets only "finished" forms of iron and steel.
Having regard to the nature and weight of the metal, it has to be "finished" to assume these forms before manufacturers of iron and steel articles can take over and proceed to manufacture articles from them by drawing wires or converting them into rails or shaping them into tees, zees, pipes, tubes and the like.
[200 C E] 3.
Whether the article produced is the raw material 01, an article made of iron and steel has to be decided on the basis of the 189 nature of the article and not the kind of mill which turns it out.
It is significant that these items do not draw distinction between basic steel mills, integrated steel mills and the various other types of mills that are used in the industry.
[200 G] 4.
The departmental instructions that machinery and plant in "rolling mills" will not be eligible for the higher development rebate would not seem to be justified if it intends to draw a distinction between the same machinery and plant when used in rolling mills and when used in other mills in the industry.
If machinery and plant installed in steel mills where the process includes not merely the production of ingots, billets and the like but also the production of bars and rods are eligible for the higher development rebate, it is difficult to see why the same, plant and machinery, when installed in rolling mills which proceed, from the stage of ingots or billets, to manufacture bars and rods should not be eligible for the higher rate of devel opment rebate.
[200 G 201 B] 5.
In considering the issue, the court should not be carried away be classifications of stages of manufacture that may be relevant for other purposes.
What the court should examine is not the nature of the mill which yields the article but the nature of the article or thing that is manufactured and ask the question whether such articles or things can be considered as raw material for manufac ture of other articles made of the metal or is it itself an article made of the metal.
[201 B C] 6.
The goods in the present case fail in the former category.
The mild steel rods, bars or rounds which are manufactured by the asses sees are only finished forms of the metal and not articles made of iron and steel.
They only constitute raw material for putting up arti cles of iron and steel such as grills or windows by applying to them processes, such as cutting or turning.
The rod or the wire rods are likewise not products of iron and steel but only certain finished or refined forms of the metal itself.
[201 C D] 7.
Forging and castings are not covered by item 1 being articles made of iron and steel but that since the legislature definite ly intended to give relief even in respect of such articles, item 11 and also item 21 were introduced.
Even if MS steel rods, bars and rounds cannot be taken as iron and steel (metal), they would fail under the category of "forgings and castings" referred to in item 11.
[201 G H] 190 8.
The conclusion drawn by the High Court that the assessee was entitled to the higher development rebate, though, it produced arti cles only from iron scrap, does not call for any interference.
[202 C, D] C.I. T. vs Mittal Steel Re tolling and Allied Industries (P) Ltd., ; CI.
West India Steel Co. Ltd., (Kerala); Addl.
Commissioner of Income Tax vs Trichy Steel Rolling Mills Ltd., ; C.I.T.v.
Krishna Copper Steel Roll ing Mills, & Har yana); CI.T.v.
Ludhiana Steel Rolling Mills, & Haryana) and Singh Engineering Works Pvt. Ltd. vs CI.T., , approved.
Indian Steel and Wire Products Lid vs Commissioner of Income tax, and Commissioner of Income Tax vs Kay Charan Pvt. Ltd., ; over ruled.
State of Madhya Bharat vs Hira Lal, (1966) 17 STC 313 (S.C.) Devi Dass Gopal Krishnan vs State of Punjab, (1967) 20 STC 430 (SC); Hindustan A1uminium Corporation Ltd. vs State of (U.P., (1981) 48 STC 411 (S.C.) State of Tamil Nadu vs Pyarelal Malhotra, (1976) 37 STC 319 (SC); C.I.T.v.
Rashtriya Metal Industries Co. Ltd., ; Indian A1uminium Co. Ltd vs
C.I.T, Cal.
and Cal; Jeewanlal vs CI.T., ; C.I.T vs Fitwell Caps P. Ltd., ; Hindustan Wire Products vs CI.T 1 ; Indian Steel and Wire Products Lid vs C.I.T. ; C.I.T.v.
Tensile Steel Lid, and CI.
Ludhiana Steel Rolling Mills, & H) referred to.
Speci 'fication and Glossary By Expert Products Sectional Committee of Bureau of India Standards, New Encyclopedia Brittanica Macropaedia, 15th Edn. Vol.21; Websters, Third New International Dictionary; Encyclopaedia of Chemical Technology By Kirk Othmer, 3rd.
Vol.21;// Book on Small Scale Steel Making By R.D.Walker, The Budget Speech of the Finance Minister, (1968) 48 ITR [Statutes] 34; (1965) 55 ITR [Statutes] 57 and 122 referred to.
|
Civil Appeal No. 325/61.
Appeal from the judgment and decree dated March 6.
1961, of the Allahabad High Court in Writ No. 3116 of 1960.
WITH Petitions Nos. 180, 181 and 205 of 1961.
Petitions Under article 32 of the Constitution of India for enforcement of Fundamental Rights.
section N. Kacker and J. P. Goyal, for the appellant (In C.A. No. 325/61) and the petitioner (In Petn.
No. 205/61).
H.N. Sanyal, Additional Solicitor General of India, K.L. Misra, Advocate General, U. P. H. N. Seth, J. K. Srivastva and C. P. Lal, for the respondents (in C.A. No. 325/61 and Petn.
No. 205 of 1961).
J. P. Goyal, for the petitioners (In petitions Nos. 180 and 181 of 1961).
C. P. Lal, for the respondents (In Petitions Nos. 180 and 181 of 1961).
December II.
The Judgment of the Court was delivered by SHAH, J.
The appeal and the writ petitions practically raise the same points and may be 78 disposed of together.
At the outset we shall briefly state the facts relevant to each of the said proceedings.
The appellant in Civil Appeal No. 325 of 1961 held a permit for plying stage carriage on the Kanpur Bela Bidhuna route via Chaubepur, in the State of Uttar Pradesh.
The entire route is 68 miles long, and a part of the route 16 miles in length i.e., Kanpur to Chaubepur, is a notified route.
This part was common between the said route and the Kanpur Chaubepur Sarai Miran route, which was a nationalised route.
A condition was, therefore, attached to the appellant 's permit that he would not be entitled to pick up passengers or drop them between Kanpur and Chaubepur.
His permit was to expire on June 10, 1960.
Before the said date, he applied for renewal of his permit, and on May 20, 1960 it was published in the U.P. Govt.
Gazette calling for objections.
On the same day, the State Government published a notification in the Gazette proposing to nationalise the said route.
As the application for renewal could not be disposed of before the expiry of the period fixed in the permit a temporary permit for the route was granted to the appellant.
On July 19, 1960 the application for renewal of the appellant 's permit was considered by the Regional Transport Authority, Kanpur, and his permit was renewed for three years with effect from July 23, 1966, only in respect of a part of the old route, namely, Chaubepur Bela Bidhuna; but under the directions of the Transport Commissioner, the Regional Transport Authority made an endorsement on the renewed permit authorizing the appellant to ply his vehicle between Kanpur and Chaubepur for a period of four months commencing from July 23, 1960.
As regards the proposed scheme of nationalization, on June 22, 1960 the appellant filed his objections thereto.
The said objections were heard by the Joint Secretary, Judicial 79 Department, who approved the scheme with some modifications.
The approved scheme was published in the Gazette on October 8, 1960.
Under the notification the scheme was to be put into operation from October 5, 1960 or thereafter.
On November 12, 1960, a notification dated November 4, 1960 was published in the Gazette under section 68F of the cancelling the appellant 's renewed permit with effect from November 27, 1960.
Under the nationalization scheme the stage carriages belonging to the State Transport Undertaking could ply on the said route without obtaining permits.
The appellant filed a petition under Art, 226 of the Constitution in the High Court of Judicature at Allahabad praying for the following reliefs: (a) That a writ in the nature of mandamus may issue to command the respondents not to interfere with the Petitioner 's right to ply on Kanpur Bela Bidhuna Via Chaubepur route under the permit duly renewed in his favour till the entire duration of the permit viz., till July 22, 1963.
(b) That a Writ in the nature of certiorari may issue to quash so much of the Resolution dated July 19, 1960 passed by the Regional Transport Authority, Kanpur, as directs imposition of illegal conditions to the renewed permit of the petitioner.
(c) That a Writ in the nature of mandamus may issue to command respondents No. 2 and 3 not to give effect to the illegal endorsements made on the petitioner 's permit on July 23, 1960 and to treat the petitioner 's permit as having been renewed without the illegal conditions attached thereto by the two endorsements dated July 23, 1960, reproduced in paragraph 15 of the affidavit.
80 (d) That a Writ in the nature of certiorari may issue to quash the notifications dated May 18, 1960 under section 68C of the Act, so also the subsequent notifications under section 68D(2) of the Act dated September 26, 1960 and the notification dated November 4, 1960 under section 68F (2) of the Act in regard to Kanpur Bela Bidhuna route.
(e) That a Writ in the nature of mandamus may issue directing the respondents Nos. 1 to 3 not to give effect to the notifications dated May 18, 1960, September 26, 1960 and November 4, 1960 in regard to Kanpur Bela Bidhuna route.
(f) That an interim direction may issue to the respondents Nos. 2 and 3 not to interfere with the Petitioner 's right to ply on the entire Kanpur Bela Bidhuna route under the renewed permit irrespective of the illegal conditions attached thereto or of the illegal scheme for the nationalization of the said route.
(g) That costs of this petition may be awarded to the Petitioners as against the opposite parties.
On December 2, 1960 the High Court made an interim order directing the State of Uttar Pradesh not to interfere with the petitioner operating his vehicle on Kanpur Bela Bidhuna route in accordance with the terms of his permit.
To that writ petition, the State of Uttar Pradesh, the Regional Transport Authority, and the Secretary to Regional Transport Authority, were made respondents.
The respondents opposed the petition.
On March 6, 1961 a Division Bench of the High Court, accepting the contentions raised by the respondents, dismissed the petition.
Hence the appeal.
81 Writ Petition No. 205 of 1961 is filed in this Court by another operator under article 32 of the Constitution.
He was plying his stage carriage on the Jaunpur Shahganj route in Uttar Pradesh under Permit No. 430, which was valid upto March 15, The State Government published in the Gazette dated July 23, 1960 a notification dated July 15, 1960 under section 68C of the Act proposing to nationalize the said route along with another route.
The petitioner and others filed objections against the scheme within the time prescribed.
The objections were heard by the Joint Secretary, Judicial Department, who approved the scheme.
The approved scheme was published in the U. P. Official Gazette dated February 25, 1961.
Thereafter, the Secretary to the Regional Transport Authority, Allahabad, issued a notification dated July 29, 1961 wherein it was stated that the permits of the operators on the said routes including that of the petitioner would stand cancelled and that the notification would come into force upon the expiry of 15 days from the date of publication of the said notification.
The petitioner has filed the present writ petition asking for the following reliefs: (a) A writ in the nature of certiorari quashing the notification (Annexures A, B and C to this writ petition).
(b) A writ in the nature of mandamus directing the respondents not to give effect to the notifications.
(c) A writ in the nature of mandamus commanding the respondents not to interfere with the rights of the petitioner to ply his stage carriage on the aforesaid route (Jaunpur Shahganj route), due to the aforesaid scheme.
(d) Award the costs of this petition to the petitioner.
82 Writ Petitions Nos.
180 and 181 of 1961 relate to the route Robertasgunj Dudhi Mamhani.
The State Government issued a notification dated July 13. 1960, proposing to nationalize the said route and published the same in the Gazette on July 23, 1960.
The petitioners filed objections against the scheme and the said objections were heard by the Joint Secretary, Judicial Department, and the scheme was finally approved by him.
The approved scheme was notified in the Gazette on May 20, 1961.
Under the said notification, the State Transport Undertaking would commence to operate its stage carriage service on the said route from July 15, 1961 or thereabout.
Aggrieved by the said scheme, the petitioners filed the said petition for writs in this Court for reliefs similar to those in the other petition.
Mr. Kacker, learned counsel for the petitioner in Writ Petition No. 205 of 1961, raised the following points: (1) Under section 68C of the , the State Transport Undertaking has to form its opinion and prepare a scheme for nationalisation and publish it in the manner prescribed thereunder, but in the present cases the State Government initiated the schemes and, therefore, the schemes were not validly made; (2) As neither the objection to the proposed scheme were heard nor were they approved by the State Government as they should be under section 68D of the , the schemes were invalid; (3) The Regional Transport Authority acted illegally in curtailing the period of renewal this question arises only in the appeal; (4) The Regional Transport Authority had not applied its mind in dealing with the renewal application but mechanically followed the provisions in the proposed schemes and, therefore, its order was bad; (5) Even after the approval of the nationalisation schemes, the State owned buses were required to apply for and get permits under the Act and plying of buses 83 by the State without permits was illegal; and (6) The Secretary to the Regional Transport Authority had no jurisdiction to issue an order under section 68F (2) of the , since under the said section only the Regional Transport Authority had the power to do so this question arises only in Writ Petition No. 205 of 1961.
To appreciate the first argument it is necessary to notice briefly the relevant provisions of Ch.
IVA of the (IV of 1939) hereinafter called the Act.
Section 68A(b) defines "State transport undertaking" to mean "any undertaking providing road transport service, where such undertaking is carried on by (i) the Central Government or a State Government.
Section 68C reads: "Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct".
Section 68D reads: "(1) Any person affected by the scheme published under section 68C may, within 84 thirty days from the date of the publication of the scheme in the Official Gazette, file objections thereto before the State Government.
(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme." Section 68E provides for the cancellation or modification of the scheme by the State transport undertaking and in that event the same procedure prescribed for framing a scheme is to be followed.
The effect of the said provisions, in so far as they are relevant to the present inquiry, may be stated thus: The State transport undertaking is an undertaking providing road transport service which is carried on by the State or any other corporation or authority mentioned in section 68A.
The definition creates a statutory authority distinct from authorities which run it.
This is made clear by section 68C whereunder it is the State transport undertaking that will have to form the requisite opinion.
This is further elucidated by the fact that under section 68C of the Act the state transport undertaking is required to publish the proposed scheme in the Official Gazette and also in such other manner as the State Government may direct.
This distinction between the two entities is further made clear by section 68D(2) whereunder the State Government has to hear the representatives of the State Transport undertaking.
Briefly stated, under the said provisions, a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and 85 the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be.
Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government, for, if one is equated with the other, the State Government would become a judge of its own cause, and that, therefore, it was incumbent upon the Government to form a separate and distinct, authority to enable it to initiate a scheme in accordance with law.
Counsel for the State contends that a transport undertaking run by a State Government is a State transport undertaking and, therefore, the scheme initiated by the State Government which runs the State undertaking is a scheme initiated by the said undertaking.
It is true that the provisions maintain a distinction between a State transport undertaking and the State Government.
It is also true that the State Government has to hear the objections of the aggrieved parties and also the representatives of the State transport undertaking before approving or modifying the scheme, indicating thereby that the State Government has to decide the dispute that may arise between the two contestants.
Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations, there is overlapping in the case of an undertaking run by a State Government.
This may lead to anomalous position, but in practice it can be avoided, if the State Government creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without violating the principles of natural justice.
86 A State transport undertaking means, inter alia, an undertaking run by a State.
The statutory authority created is an undertaking run by a State.
The State can only run an undertaking through its officers; it may entrust the conduct of the transport service to a particular officer or to a department of the State; in either event, it is the State Government that runs the undertaking.
The statutory authority, namely, the State transport undertaking, has to form an opinion within the meaning of section 68C of the Act, and the opinion must necessarily be that of the State Government which runs it.
If the State Government running an undertaking forms an opinion, it can legitimately be said that the statutory authority i. e., the State transport undertaking, has formed the opinion.
In Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation (1) before the State of Andhra was formed in November, 1956, the Motor Vehicles (Hyderabad Amendment) Act, 1956 was in force in Telengana area.
Under the said Act the State transport undertaking was defined to mean the road transport department of the State providing road service.
After the Andhra Pradesh State was formed, that department initiated the scheme and this Court held that the said department clearly fell within the definition of state transport undertaking.
This Court observed in that case: "The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking.
" If a state directly runs an undertaking, it can only be through a department.
In law there cannot be any difference between an undertaking run by a department of a State Government and that run 87 by the State Government.
In either undertaking is run by the State and that undertaking is a State transport undertaking within the meaning of section 68C of the Act.
The opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business is entrusted and that opinion, in law, will be the opinion of the State Government.
It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the notification was issued.
It is not denied that the Secretary of the said Department has power under the rules of business to act for the State Government in that behalf.
We, therefore, hold that in the present case the opinion was formed by the State transport undertaking within the meaning of section 68C of the Act, and that there was nothing illegal in the manner of initiation of the said scheme.
The second ground urged by counsel for the appellant that the scheme was invalid because the objections to the scheme were heard and the scheme was approved by the Joint Secretary, Judicial Department, who was not lawfully invested with authority in that behalf is for reasons to be presently stated not open to the appellant.
By the first sub section of section 68D which we have already set out persons affected by a transport scheme are entitled to file objections thereto.
By sub section (2), the State Government is authorised to approve or modify, the scheme after considering the objections, if any, and after giving an opportunity of being heard in the matter to the objector or his representatives and the representatives of the State transport undertaking.
Sub section (3) provides for the publication of the 88 approved or modified scheme in the Official Gazette by the State Government and on such publication the scheme becomes final.
It must at once be observed that neither in the petition under article 226 of the Constitution to the High Court, out of which Civil Appeal No. 325 of 1961 arises, nor in the Writ Petition under article 32 (No. 205 of 1961) presented to this Court, was the plea raised that the Joint Secretary to the Judicial Department was not authorised to hear the objection and to approve the scheme.
In the petition (No. 205 of 1961) under article 32 of the Constitution it was averred by the petitioner in para 10 that "the petitioner filed objections under section 68D(1) of the Act, against the scheme of the State Government, and it also heard its own representatives in opposition to the petition" and again it was averred in the same paragraph "at the time of hearing of the petitioner 's objections under section 68 D, Before the State Government it was argued on behalf of the petitioner that the aforesaid scheme was bad. " In the petition under article 226 of the Constitution it was averred in paragraph 25 "That no State Transport Undertaking having been constituted the State Government initiated the scheme and heard its own representatives on 13.8.1960.
The petitioner has bonafide belief that the Joint Secretary to the Government of Uttar Pradesh (Judicial Department) who heard the objections acted with bias against the petitioner.
" Even in the petition for special leave to appeal to this Court, no such objection was raised.
There is also no reference to any such contention in the judgment of the High Court.
The validity of the scheme on this ground is sought to be raised for the first time in this Court, and, according to the settled practice of this Court the appellant except in exceptional circumstances and there are none such in this case is not entitled to raise this argument for the first time at the hearing in this Court.
It was urged in the course of the 89 argument that by Rule 7 of the State Land Transport Services Development Rules 1958, which at the material time read as follows: "(1) The objections received shall be considered by the judicial Secretary to Government of U.P. or an officer of his department, not below the rank of Joint Secretary nominated by the former for the purpose.
x x x x x x x x x x (5) After hearing of such parties as appear, the officer shall give a decision whether the scheme be approved or modified as he may deem proper", no authority was lawfully conferred upon the Joint Secretary, and the proceedings of the Joint Secretary in purported exercise of powers under section 68D (2) were without jurisdiction.
But this is another facet of the same argument, and it is clear from a perusal of the petitions before the High Court and this Court and the judgment of the High Court that it was never raised.
There is no doubt that the scheme has been duly published under section 68D(3) and if the objection to the invalidity of the scheme on the ground that the objection were not heard by an authority competent in that behalf cannot be permitted to be raised in this Court for the first time during the course of the arguments, the statutory consequences prescribed by section 68F must ensue.
It is necessary to bear certain facts and considerations in mind in dealing with the remaining contentions.
By the scheme (cl. 7) the permit of the appellant was cancelled.
The scheme as approved was published in the U.P. Gazette on October 8, 1960, and was to come into operation on October 15, 1960, or thereafter.
A notification was published on November 4, 1960, under section 68F(2) 90 of the Act cancelling the appellant 's permit with effect from November 27, 1960.
The appellant therefore ceased to have any right to ply his vehicles on the route and he had no right to object to the vehicles of the State transport undertaking plying on that route.
If the scheme was validly promulgated and became final within the meaning of section 68D(3), it had the effect of extinguishing all rights of the appellant to ply his vehicles under his permit.
After cancellation of his permit, he could not maintain a petition for writ under article 226 because a right to maintain such a petition postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested.
It is true that the appellant did at the date of the petition filed in the High Court hold a permit which was to enure till the 27th November, 1960.
But if the permit was validly terminated from the date specified, he will not be entitled to relief even if he had on the date of the petition a subsisting right.
Ground No. 2 must therefore fail.
Grounds 3 and 4 of the appellant that the Regional Transport Authority acted illegally in curtailing the period of renewal and that, in any event, it did not apply its mind in dealing with the renewal application but mechanically followed the provisions of the scheme may now be considered.
The Regional Transport Authority was by the terms of the scheme left no discretion in the matter.
It was by the scheme that the right of the appellant was restricted and if the scheme became final and binding the Regional Transport Authority had no authority to permit the appellant to ply his vehicles.
The order passed by the Regional Transport Authority was purely consequential on the scheme, and if the scheme is not open to challenge, orders consequential thereon will not 91 also be open to challenge.
We are supported in this view by the observations of this Court in Abdul Gafoor: Proprietor, Shaheen Motor Service vs The State of Mysore (1) that: "It appears to us that when deciding what action to take under section 68F(1) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the schemes.
The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme.
The duty is therefore merely mechanical and it will be incorrect to say that there is in these matters any lie between the existing operators and the State Transport Authority.
There is no justification therefore for saying that when taking action under section 68F(2) is really independent of the issue of the permits under section 68F(1).
Once the scheme has been approved, action under section 68F(1) flows from it and at the same time action under section 68F(2) flows from the same scheme".
We are bound by the decision.
We are not called upon to consider whether the State owned buses are being validly plied without obtaining permits under section 68F(1) of the Act.
If the right of the appellant to ply his buses is lawfully extinguished, he is not entitled to maintain an appeal challenging the right of the State Transport undertaking to ply their buses with or without permits.
Nor is any fundamental right of the appellant infringed by the State Transport undertaking plying its buses without permits, and a petition under article 32 of the Constitution cannot be maintained unless a fundamental right of the applicant is infringed.
92 Nor is there any substance in the last contention.
The orders passed under.
sections 68F(2)(a) and (b) flow from the publication of the scheme duly approved and the issue of an order, which is not quasi judicial but administrative, by the Secretary on behalf of the Regional Transport Authority is not open to challenge.
It is not the case of the Petitioner in W. P. 209/61 in which alone this contention is raised that the order unauthorised.
what is contended above this contention is raised that the order is being quasi judicial, power to make it cannot be delegated.
But for reasons already set out the order is not quasi judicial; it is purely administrative.
In our view, therefore, the appeal and the petitions must fail, and are dismissed with costs.
|
The appellant, whose permit for plying stage carriage was shortly to expire, applied for its renewal.
The renewal application was published in the Gazette calling for objections.
The State Government published a notification proposing to nationalise the route.
The permit was renewed for three years for a part of the route but an endorsement was made thereon authorising the appellant to ply on the remaining part of the route for four months.
The appellants filed objections to the proposed scheme for nationalisation.
The objections were heard by the Joint Secretary, Judicial Department, who approved the scheme with certain modifications.
The scheme was published in the Gazette.
Thereafter, a notification was issued under section 68F of the cancelling the appellant 's renewed permit.
Under the Scheme the stage carriages of the State Transport Undertaking could ply on the route without obtaining permits.
The appellant challenged the validity of the scheme and the cancellation of his licence.
^ Held, that the scheme was valid and the appellant 's licence was properly cancelled.
Section 68C of the required the scheme to be initiated by the State Transport Undertaking.
Even though the scheme in the present case was actually initiated by the State Government there was no non compliance with the provisions of section 68C.
There was no difference between an undertaking run by a department of the State Government and that run by the State Government.
In either case the undertaking was run by the State and it was a State transport undertaking within the meaning of section 68C. Initiation of the scheme by the State Government running an undertaking was initiation by the statutory authority i.e., the State Transport undertaking.
The appellant could not be allowed to challenge the validity of the scheme on the ground that the Joint Secretary was not lawfully invested with the authority to hear objections and to approve the scheme as the point was not raised at the proper stage.
77 Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation, [1959] Supp. 1 S.C.R. 319, applied.
The scheme having been validly promulgated and having become final under section 68D(3) it had the effect of extinguishing all rights of the appellant to ply his stage carriage under his permit and he could not maintain a petition under article 226 of the Constitution.
The order passed by the Regional Transport Authority cancelling the appellant 's permit was purely consequential on the scheme and could not be challenged if the scheme was valid.
Once the right of the appellant to ply his stage carriage was validly extinguished he could not question the right of the State transport authority to ply their stage carriages with or without permits.
Abdul Gafoor, Proprietor, Shaheen Motor Service vs State of Mysore, ; , applied.
|
Civil Appeal No. 282 of 1955.
Appeal by special leave from the judgment and order dated March 20, 1953, of the Bombay High Court in Income tax Reference No. 31 of 1951.
A. V. Viswanatha Sastri and I. N. Shroff, for the appellants.
K. N. Rajagopal Sastri and D. Gupta, for the respondent.
April 12.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal against the judgment and order of the High Court of Bombay in a reference under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947), hereinafter termed the 'Act '.
The assessee company was the applicant before the High Court and is the appellant 919 before us and the Commissioner of Income tax, Bombay City, was the respondent in the High Court and is the respondent here also.
Being a reference under section 8(5) of the Act, it was heard and decided by three judges of the High Court.
The assessee company is a private limited company which was incorporated on May 6, 1943, with a paid up capital of Rs. 20 lacs.
It was promoted by two groups of persons who for the sake of convenience may be called the 'Morarka Group ' and the 'Bubna Group '.
The Apollo Mills Co., Ltd. of Bombay with a capital of Rs. 50 lacs divided into 25 lacs shares of Rs. 2 each, had as its Managing Agents M/s. E. D. Sassoon & Co. Ltd., who for the sake of brevity, will be referred to in this judgment as the Sassoons '.
They held 19,76,000 shares out of the 25 lacs.
The promoters of the assessee company entered into an agreement with the Sassoons on April 27, 1943, by which the Sassoons agreed to transfer their Managing Agency in the Mill Co. for Rs. 12 1/2 lacs to the promoters of the assessee company and the whole of their holding of 19,76,000 shares at Rs. 4 4 0 per share, i.e., for Rs. 83,98,000.
These shares were to be transferred to the promoters or to the company which they were proposing to float.
By clause (3) of this agreement the sale of the Managing Agency and the transfer of the shares was to be simultaneously completed and neither party could require the completion of the one without the other.
On November 1, 1943, a tripartite agreement was entered into between the Sassoons as Assignors, the promoters of the company as Confirming Parties and the assessee company as Assignees.
By that agreement the Managing Agency rights were for .ally transferred to the assessee company so also the Share Certificates for the whole of holding of the Sassoons in the Mill Co. and the necessary blank transfer deeds went) Before the agreement of April 27, 1943, and during the course of negotiations with the Sassoons the promoters of the assessee company entered into an arrangement with some share brokers for the sale of a large portion of the total holding of 19,76,000 shares 920 of the Mill Co. The price of these shares varied from Rs. 5 8 0 to Rs. 5 13 0.
In all 10,00,000 shares out of the total holding of the Mill Co. were sold to these brokers and: they in turn sold these block of shares in smaller lots to a number of purchasers.
Some shares were sold later; 1,20,000 shares were transferred to 13 nominees of the Morarka Group at cost price.
As a result of sale of all these 13,74,000 shares the assessee company received a sum of Rs. 16,52,600 as excess over the purchase price.
The remaining shares the assessee company retained.
The assessee company submitted that the profits of the entire holding of the shares had not been worked out and had therefore not been transferred to the profit and loss account.
The assessee company was taxed by the Income tax Officer but the sum of Rs. 16,52,600 which was the excess of the sale price over the purchase price of 13,74,000 shares was held not to be profit and therefore not taxable.
When the Act came into force the case of the assessee company was referred to the Investigation Commission by the Central Government and the Investigation Commission made its report on November 9, 1949, in Case No. 406A.
By this report the Commission directed that appropriate assessment be made under the Indian Income tax Act for the assessment year 1945 46 and the Excess Profits Tax Act for the corresponding chargeable accounting period.
At the instance of the assessee company the Commissioner of Income tax, Bombay City, by his order dated May 1, 1951, referred the following question to the High Court: "Whether on the facts found by the Commission the sum of Rs. 16,52,600 being the excess price realised by the sale of 13,74,000 shares of the Mill Company, was 'profit ' and as such taxable or whether it was either of the nature of a capital appreciation or a casual and non recurring receipt and as such exempt from taxation under Section 4(3)(vii) of the Income tax Act." The High Court reformulated the question as follows: 921 "Whether there were materials to justify the finding of the Tribunal that the transaction of purchase and sale of 13,74,000 shares was an adventure in the nature of trade?" and answered the question so formulated in the affirmative and therefore against the assessee company.
In its application for reference under section 8(5) of the Act the assessee company wanted some other questions also to be referred but the Investigation Commission only referred the question which has been set out above.
The assessee company therefore took out a Notice of Motion on November 8, 1952, which was dismissed by the High Court on the ground that either the questions which were sought to be raised did not arise out of the finding of the Commission or they were included in the question which had been referred and answered by the High Court.
Although the High Court did not so hold, the Notice of Motion was barred by time, being filed after more than six months allowed under section 66(2) of the Indian Income tax Act.
Against this judgment and order of the High Court the assessee company has come in appeal to this Court by special leave.
This appeal is brought against the judgment of the High Court answering the question referred and therefore in its advisory jurisdiction.
The jurisdiction which this Court exercises in appeal is of the same character and therefore any question which was not referred to the High Court cannot be allowed to be raised at this stage.
Consequently the constitutional question in regard to discrimination under article 14 of the Constitution which is now sought to be raised cannot be raised.
The main question which would then survive for decision is the nature of transaction relating to the sale of 13 lacs odd shares and whether or not the sale was an adventure in the nature of trade and therefore the amount of Rs. 16,52,600 the excess of sale price over the purchase price of the share is a Revenue Receipt and therefore taxable profits or is it a Capital Receipt and therefore not liable to tax.
The Investigation Commission by their order dated May 1, 1949, found: 922 (1) that a distinction should be made between the 6 lacs shares which the assessee company intended to and did retain and the 13 lacs odd shares which it intended to and did sell; the former was kept in order to enable the assessee company to make their Managing Agency rights effective.
(2) During the negotiations between the Sassoons and the promoters of the.
assessee company, the promoters of the assessee company had started negotiations with certain brokers for the transfer of 13 lacs odd shares soon after the arrangement between the Sassoons and the assessee company was completed.
(3) From the very beginning the intention of the promoters of the assessee company was to sell all the 13 lacs odd shares and in pursuance thereof they were sold.
(4) The paid up capital of the assessee company was Rs. 20 lacs only and according to the agreement they had to take the whole block of shares belonging to the Sassoons and pay for the shares as well as for the Managing Agency both of which were separately valued in the agreement.
It was therefore necessary and it was intended to sell the 13 lacs odd shares in order to pay off the Sassoons both for the Managing Agency and the shares.
The inference drawn from this by the Commission was that a distinction had to be drawn between the 6 lacs shares which the assessee company intended to retain and did in fact retain and the 13 lacs odd shares which they intended to sell and did sell.
(5) that the intention to sell which the assessee company entertained from the very outset was a complete answer to the argument that the acquisition was in the nature of an investment.
In giving its finding the Commission said: "Aggregating the 121 lakhs paid for the Manag ing Agency right and the full price of 6 lakhs and odd shares at Rs. 4 4 0 per share, the capital investment must amount to 121 lakhs and 251 lakhs, i.e., 38 lacs and odd.
By deducting therefrom the profits of Rs. 16,52,600, the Company showed a capital investment of Rs. 21,54,200 and with the addition 923 of a few sundry items, it was brought up to Rs. 22,06,408 (see para 7 supra).
" From this finding the inference drawn by the Commission was that the sale of 13 lacs odd shares was an adventure in the nature of trade.
The High Court reformulated the question which has already been quoted and it was contended that the High Court was in error in narrowing down the scope of the question referred by the Commission.
It is not necessary to adjudicate upon this argument because in our opinion taking the question as referred to be a proper question arising out of the report of the Investigation Commission the answer to the first part thereof would,still be in the affirmative.
Inconsidering the question whether the transaction is or is not an adventure in the nature of trade we have to take into consideration the intention of the assessee keeping in view the "legal requirements which are associated with the concept of trade or business".
The inference from the facts found by the Investigation Commission, i.e., whether the assessee company 's transaction in purchasing and selling 13 lacs odd shares is or is not an adventure in the nature of trade is a mixed question of law and fact and the legal effect of the facts found by the Investigation Tribunal is a question of law.
See M/s. Ramnarain Sons (Pr.) Ltd. vs Commissioner of Income tax, Bombay (1).
It was argued on behalf of the assessee company that: (1) that the dominant idea with which the whole transaction was entered into was to obtain the Managing Agency of the Apollo Mills; (2) that the assessee company was forced to buy the whole block of shares, i.e., 19,76,000 shares by the Sassoons because they were not prepared to part with the Managing Agency without the whole of their stock in the mill company; (3) that as the assessee company did not not have sufficient amount of money, their capital being only Rs. 20 lacs, it was to implement the tripartite agreement dated November 1, 1943, that the sale was made; and (1) (1961] 2 S.C.R. 904, 908. 924 (4) that the Memorandum of Association of the assessee company showed that it was a holding company and dealing in shares was not one of its objects.
The agreement shows that the Sassoons had separately evaluated the Managing Agency and the shares held in the Apollo Mills Co.
As the Investigation Commission has found, it was never the intention of the assessee company to retain the whole block of shares.
Before the agreement was entered into they had made arrangement for the sale of the bulk of shares which were to be transferred by the Sassoons and therefore division of the shares into two sets was made by the promoters of the assessee company and the assessee company themselves and was not the result of anything done by the Investigation Commission.
In; support of his contention that the amount of Rs. 16,52,600 was in the nature of Capital Receipt, reliance was placed on the judgment of this Court in M/s. Ramnarain 's case (1) but there are certain features and details which distinguish that case from the present case.
It was held in that case that the question had to be decided in the light of the intention of the assessee and the assessee in that case bad purchased the shares of the Dawn Mills not as a business transaction.
That was clear from the fact that the assessee bad purchased the shares at Rs. 2,321 8 0 per share and the market price was only Rs. 1,610, and the purpose of acquisition of such a large block of shares at a price exceeding the market price by a million rupees was the acquisition of the Managing Agency, which yielded the inference that the intention of purchasing the shares in that case was not to acquire them as a part of the trade of the assessee in shares but for obtaining the Managing Agency of the Mills.
There was no separate price paid for the Managing Agency and the shares purchased and the Managing Agency acquired were both assets of a capital nature and the shares did not constitute stock in trade of a trading venture.
In the present case the facts as shown were entirely different.
(1) ; , 908. 925 Counsel for the assessee company also relied on Kishan Prasad & Co. Ltd. vs Commissioner of Income tax, Punjab (1).
In that case the Managing Director of the company which was formed for the purpose of carrying on general business and trade of commercial undertaking and dealing in bills, hundis and other securities, entered into an agreement with a sugar syndicate by which the company was to be given the Managing Agency of a Mill of the sugar syndicate when such mill was erected in lieu of the company subscribing shares worth 3 lacs, and undertaking to sell shares worth 2 lacs.
It was further provided that if the mill was not erected the assessee company was to be paid a commission on the amount invested by them.
The Managing Director died and the assessee company sold the shares and thus received Rs. 2 lacs more than they had expended.
The question was whether Rs. 2 lacs were receipts from business and not a mere appreciation in capital.
It was held that that amount was not a result of an adventure in the nature of trade but was merely the result of an investment.
It was found as a fact that the object of the company was merely to obtain the Managing Agency of the mill which would have been an asset of an enduring nature bringing profits but there was from the very inception no intention on the part of the company to resell the shares either at profit or otherwise.
It appears that it was not contested that the conclusion to be drawn from those facts was that the investment in the purchase of shares in the circumstances of the case of a capital nature, and profits arising therefrom were an accretion to the capital.
In that ease the court was trying to find out the intention of the assessee (the company) and taking all the circumstances into consideration it, came to the conclusion that it was a case not of profits arising out of an adventure in the nature of trade but the, intention of the assessee company was to invest its monies and therefore the excess arising out of sale of the shares was an accretion to the capital.
That case must be taken to have been decided on its facts as (1) 926 indeed was the decision in M/s. Ramnarain Son 's case (1).
Counsel for the assessee company referred to other cases: Tata Hydro Electric Agencies, Bombay vs The Commissioner of Income tax, Bombay Presidency & Aden (2); Commissioner of Income tax, Central and United Provinces, Lucknow vs Messrs. Motiram Nandram (3), Jones vs Leeming (4) and Commissioner of Inland Revenue vs Reinhold (5).
It is unnecessary to re view these cases in any detail because they are clearly distinguishable in material respects and were decided on their own special facts.
In Tata Hydro Electric Agencies ' case (2) the question for decision was whether 25% of the commission earned which was paid to the two financiers was expenditure deductible under section 10(2)(ix) and it was held that it was not because the obligation to make the payment was in consideration of acquiring the Managing Agency and the right to conduct business and not for the purpose of producing profits in the conduct of business.
Similarly in Commissioner of Income tax vs Messrs. Motiram Nandram (3) the expenditure was for securing the agency which was to carry on business.
Sir George Rankin said at p. 81: "The question in such a case a,% the present must be "what is the object of the expenditure?" and it must be answered from the standpoint of the assessees at the time they made it that is, when they were embarking upon the business of organizing agents for the company." Jones vs Leeming (4) was a case of an isolated transaction.
The finding was that it was not in the nature of trade.
Commissioner of Inland Revenue vs Reinhold(5) was ' decided on its own facts.
Another case decided by this court upon which counsel for the appellant relied was Saroj Kumar Mazumdar vs Commissioner of Income tax, West Bengal, Calcutta (6) but that case was also decided on its own facts and it was held that there was no clear evidence in support of (1) [1961] 2.C.R. 004, 908 (3) (1939) L. R. 67 I. A. 71 (5) (1953) 34 T C. 389.
(2) (1937) L. R. 64 I. A. 215.
(4) (6) [1959] SUPP.
2 S C.R. 846.
927 the inference of the Appellate Tribunal that the land was purchased with the sole intention of selling it later at a profit.
The English and Scottish cases on which the appellant relied were considered by the House of Lords in Edwards vs Bairstow (1).In that case the assessees who were the respondents embarked on a joint venture to purchase and complete a spinning plant agreeing between themselves not to hold it but to make a quick resale.
With that object in view they approached and there were diverse negotiations and the whole plant was sold in about two years ' time at a profit of about pound 18,000 and for that purpose incurred commission for help in effecting sales, for insurance and other expenses.
The General Commissioners found that it was not an adventure in the nature of trade to justify an assessment to income tax under Case 1 of Schedule D to the Income tax Act, 1918.
It was held that the facts led inevitably to the conclusion that the transaction was an adventure in the nature of trade and that the Commissioner 's inference to the contrary should be set aside.
Counsel for the respondent next relied on a Judgment of this Court in G. Venkataswami Naidu & Co. vs The Commissioner of Income tax (2) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against.
What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction.
All these cases are illustrative.
As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital.
In the instant case (1) ; (2) [1959] SUPP.
1 S.C.R. 646.
928 the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature of trade.
The two groups, Morarka and Bubnas, put Rs. 20 lacs into the assessee company which was floated for the acquisition of the Managing Agency and shares of the Mill Company which were beyond the holding capacity of the assessee company.
That company never intended to hold the whole block of shares.
It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact ion could not have been completed by the assessee company.
The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares.
This inescapably was a transaction of a commercial nature.
It had all the attributes of an adventure in the nature of trade.
The contention that dealing in buying and selling of shares was not one of its objects is without substance.
The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question.
All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court.
The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative.
It was contended that the question should not have been reframed and we have therefore proceeded to answer the question as framed by the Investigation Commission.
In our opinion the question even as framed must be answered in the affirmative.
929 The Notice of Motion to raise other questions in the High Court was rightly dismissed.
Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all.
The constitutional question under article 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal.
This appeal must therefore be dismissed with costs.
Appeal dismissed.
|
The assessee company was promoted with the idea of obtaining the Managing Agency of the Appollo Mills from M/s. Sassoon total of 25 lakhs shares of RS.
2 each.
According to the agreement the assessee company bad to take the whole of the block of shares belonging to the Sassoons and pay at Rs. 4 4 0 per share Rs. 12 1/2 lakhs for the managing agency.
As the assessee company had only RS.
20 lakhs as its paid up capital, it was necessary to sell 13 lakhs odd shares in order to pay off the Sassoons both for the Managing Agency and the shares.
Therefore during the course of negotiations the promoters of the assessee company entered into an agreement with some brokers for the sale of Rs. 19,76,000 shares.
As a result of the sale of shares the assessee company received a sum of Rs. 16,52.600 as excess over the purchase price which amount on taxation was held by the Income tax Officer not to be profits and therefore not taxable.
The case of the assessee company was referred to the Investigation Commission.
The Commission found that it was not the intention of the assessee company to retain the whole block of shares and that the sale of 13 lakhs odd shares was an adventure in the nature of trade, and directed that appropriate assessment be made, under the Indian Income tax Act and Excess Profits Tax Act.
At the instance of the assessee company the question was referred to the High Court under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947, which held that there were materials to justify the finding of the Commission that the purchase and sale of about 13 lakhs odd shares was an adventure in the nature of trade.
An appeal was taken to the Supreme Court against this order.
Held, that in considering the question whether the transac tion was or was not an adventure in the nature of trade, the court had to take into consideration the intention of the assessee 918 keeping in view the "legal requirements which are associated with the concept of trade or business" In the present case, the transaction that consisted of buy ing the managing agency of the Mill Company and the block of shares held by Sassoons was inescapably one of a commercial nature and had all the attributes of an adventure in the nature If of trade.
Held, further, that the jurisdiction which this Court would exercise in appeal was of the same character that a High Court would exercise.
Thus the question under article 14 of the Constitution could not be raised in these proceedings because this Court like the High Court was exercising its advisory jurisdiction and its power was confined to the question which arose before the High Court.
M/s. Ramnarain Sons (Pr.) Ltd. vs Commissioner of Income tax, Bombay; , , Tata Hydro Electric Agencies, Bombay vs The Commissioner of Income tax, Bombay Presidency & Aden, (1037) L.R. 64 I.A. 215, Commissioner of, Income tax, Central and United Provinces, Lucknow vs M/s. Motiram Nandram, (1939) L.R. 67 I.A. 71, Jones vs Leeming, [1930) A.C. 415, Commissioner of Inland Revenue vs Reinhold, and Saroj Kumar Mazumdar vs Commissioner of Income tax, West Bengal, Calcutta, [1959] SUPP.
2 S.C.R. 846, distinguished.
Kishan Prasad & Co. vs Commissioner of Income tax, Punjab, , Edwards vs Bairstow, ; and G. Venkataswami Naidu & Co. vs The Commissioner of Income tax, [1959] SUPP.
1 S.C.R. 646, discussed.
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The Roster of Sitting of the Hon’bl e Judges of this Court effec tive from 28.11.2022 is as under:-
Division Benches
Hon’ble Mr. Justice Satish Chandra
Sharma (Chief Justice)
Hon’ble Mr. Justice Subramonium
Prasad
1. All PIL matters.
2. Letters Patent Appeals (other than service matters) for the
years 2021 and 2022.
3. Letters Patent Appeals (pertainin g to service) of the year
2021 and 2022.
4. Writ Petitions challenging th e constitutional validity of
any Act, Statutory Rule, Regulation or Notification other
than tax for the year 2021 and 2022.
5. Writ Petitions challenging Constitutional validity of any
Act, Statutory Rule, Regulation or Notification impacting
Criminal Investigation, Trial, Prosecutions etc.
6. Writ Petitions (Tender).
7. Misc. Writ Petitions invoking constitutional provisions
and Writ Petitions other than the specified categories.
8. Matters to be heard b
y Commercial Appellate Division.
9. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Siddharth Mridul
Hon’ble Mr. Justice Talwant Singh 1. Matters relating to street vendors/Tehbazari.
2. First Appeals from Orders (Ori ginal Side) of the year 2022
3. Criminal Contempt Petitions.
4. Criminal Contempt References.
5. Criminal Writ Petitions includ ing those relating to Habeas
Corpus and Preventive Detention.
6. Criminal Appeals for the years 2020, 2021 & 2022.
7. Matters to be heard by Commercial Appellate Division.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Manmohan
Hon’ble Mr. Justice Saurabh Banerjee
1. Writ Petitions challen
ging the constitutional validit y of an y
Act, Statutor y Rule, Re gulation or Notification other than tax
upto the year 2019.
2. Writ Petitions challenging orders passed b y the Hi gh Court
on Administrative Side.
3. IPR Appellate Division to hear all categories of matters
relating to IPR.
4. Matters to be heard by Commercial Appellate Division .
5. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Rajiv Shakdher
Hon’ble Ms. Justice Tara Vitasta
Ganju 1. Writ Petitions challen ging Constitutional validit y of an y
Act, Statutor y Rule, Re gulation or Notification pertainin g
to Tax (including Municipal Tax).
2. Income Tax References, Wealth Tax and Gift Tax cases.
3. Income Tax Appeals.
4. Writ Petition (Tax) other than those listed before DB-IV.
5. Matters to be heard by Commercial Appellate Division.
6. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Suresh Kumar
Kait Hon’ble
Ms.Justice Neena Bansal
Krishna 1. Writ petitions (Service) relating to Armed Forces.
2. Contempt Appeals.
3. Regular First Appeals (Original Side) .
4. Matters to be heard by Commercial Appellate Division. 5. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Mukta Gupta
Hon’ble Ms. Justice Poonam A. Bamba
1. Writ Petitions challenging Constitutional validity of any
Act, Statutory Rule, Regulation or Notification impacting
Criminal Investigations, Tria ls, Prosecutions etc.
2. Criminal Appeals upto the year 2019.
3. Death Sentence References.
4. Criminal Leave Petitions.
5. Criminal Revision Petitions.
6. Matters to be heard by Commercial Appellate Division.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Najmi Waziri
Hon’ble Mr. Justice Sudhir Kumar
2. Writ Petitions relating to MTNL, MCD & NDMC.
3. Letters Patent Appeals upto the year 2017.
4. First Appeals from Orders (Ori gl. Side) upto the year 2018
5. Letters Patent Appeals (pertainin g to service) of the year
2018, 2019 and 2020.
6. Execution First Appeals (Original Side).
7. Matters to be heard by Commercial Appellate Division.
8. Regular hearing matters of the above categories.
Hon’ble Mr.Justice Sanjeev Sachdeva
Hon’ble Mr.Justice Rajnish Bhatnagar 1. Misc. Appeals (PMLA).
2. RERA Appeals.
3. Writ Petitions challenging Constitutional validity of any
Act, Statutory Rule, Regulation or Notification pertaining
to Service.
4. Appeals against the orders of the Family Courts.
5. Matters to be heard by Commercial Appellate Division .
6. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Vibhu Bakhru
Hon’ble Mr. Justice Purushaindra
Kumar Kaurav 1. Writ Petitions challenging the constitutional validity of any
Act, Statutory Rule, Regulation or Notification other than
tax for the year 2020.
2. Letters Patent Appeals (other than service matters) for the
years 2018, 2019 and 2020.
3. Sales Tax cases and GST cases + ST Ref. 4. First Appeals from Orders (Original Side) of the years
5. Company Appeals.
6. Service Tax cases, Central Excise Act cases, Custom Act
cases and VAT Appeals.
7. Writ Petitions pertaining to Service Tax, Central Excise Act,
Custom Act and Value Added Tax (VAT) cases. 8.
Regular First Appeals from orders of Copyright Board.
9. Matters to be heard by Commercial Appellate Division.
10. Regular hearing matters of the above categories.
Hon’ble Mr. Justice V.Kameswar Rao
Hon’ble Mr. Justice Anoop Kumar
Mendiratta 1. Writ Petitions (Service) arisin g out of the orders of CAT.
2. Writ Petitions (Co-op. Societies)
3. Writ Petitions (Land Acquisition).
4. Writ petitions pertaining to Service Matters required to
be listed before the Division Bench.
5. Appeals under the Chartered Accountants Act.
6. Matters to be heard by Commercial Appellate Division.
7. Regular hearing matters of the above categories.
Single Benches (Civil Jurisdiction)
Hon’ble Ms. Justice Rekha Palli 1. Civil Misc. Main (MV Act).
2. MACT Appeals from the year 2016 onwards.
3. Land Acquisition Appeals upto the year 2018.
4. Civil Writ Petitions relating to Nationalized Banks and
Financial Institutions.
5. Civil Writ Petitions (Labour) from the year 2011 onwards
6. Transfer Petitions (Civil).
7. All categories of Matrimonial Cases.
8. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Prathiba M.
Singh 1. Civil Writ Petitions Misc. including those involving
statutory authorities, DT C, Urban Arts Commission,
Airport Authority of India etc. from the year 2018, 2019,
2020, 2021 and 2022.
2. Civil Writ Petitions (RTI).
3. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Jyoti Singh
1. Civil Writ Petitions (Service) from the year 2016 onwards
2. Regular First Appeals of the years 2020, 2021 and 2022.
3. First Appeals from Orders (MACT).
4. Civil Revision Petitions.
5. Regular hearing matters of the above category.
Hon’ble Mr. Justice Manoj Kumar
Ohri
1. Civil Writ Petitions (Railways, Cantonment Board,
Electricity, DJB, and MTNL.
2. Civil Writ Petitions (MCD)
3. Civil Writ Petitions (NDMC)
4. Civil Writ Petitions (Waqf Board)
5. Civil Writ Petitions (STA)
6. First Appeals from Orde rs (other than MV Act).
7. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Mini Pushkarna 1. Civil Writ Petitions relating to Land Reforms including
matters relating to allotment of alternative land.
2. All categories of case s under the P.P. Act.
3. Civil Writ Petitions (Servi ce) upto the year 2015.
4. Regular First Appeals upto the year 2014.
5. Regular First Appeals for the year 2022.
6. Civil Writ Petitions (Education ) relating to admissions in
schools, CBSE matters, evaluation/totaling of marks in examination and matters relating to Managing Committee of aided schools.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Vikas Mahajan 1. Civil Writ Petitions (Education).
2. Civil Writ Petitions (Election)
3. Civil Writ Petitions (S.H. at Work place and mines).
4. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Tushar Rao
Gedela
1. Civil Writ Petitions Misc. including those involving
statutory authorities, DT C, Urban Arts Commission,
Airport Authority of India, etc. upto the year 2012.
2. Civil Misc. Main (other than MV Act, PP Act and
matrimonial cases)
3. Land Acquisition Appeals of 2019, 2020, 2021 & 2022.
4. Regular First Appeals of the years 2017, 2018 and 2019.
5. Regular Second Appeals.
6. Execution First Appeals.
7. Execution Second Appeals.
9. Original Reference.
10. Regular hearin g matters of the above cate gory.
Hon’ble Ms. Justice Manmeet Pritam
Singh Arora 1. Civil Writ Petitions (DDA)
2. Civil Contempt Petitions.
3. Rent Control Revisions.
4. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Gaurang Kanth
1. Civil Writ Petitions Misc. includin g those involvin g
statutory authorities, DT C, Urban Arts Commission,
airport Authority of India etc. from the year 2013 to 2017.
2. Regular First Appeals of the years 2015, 2016 and 2022.
3. Civil Writ Petitions (Labour) upto the year 2010.
4. MACT Appeals upto the year 2015.
5. Regular hearing matters of the above categories.
Single Benches (Criminal Jurisdiction)
Hon’ble Mr. Justice Yogesh Khanna
1. Bail matters.
2. Criminal Appeals of the year 2022.
3. Criminal Revision Petition of the year 2017 & 2022.
4. Crl. Misc. Main cases of the year 2021 and 2022.
5. Criminal Leave Petitions of the year 2019 and 2022.
6. Writ Petitions (Crl) of years 2016, 2017, 2018, 2019 & 2022.
7. Cases relating to sexual harassment.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Anup Jairam Bhambhani 1. Bail matters.
2. Criminal Appeals of the years 2015 , 2016 & 2022
3. Crl. Misc. Main cases of the years 2017 and 2022.
4. Crl. Revision Petitions of the year 2022.
5. Crl. Leave Petitions of the year 2022.
6. Writ Petitions (Criminal) of the year 2020 and 2022.
7. Cases relating to sexual harassment.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Jasmeet Singh 1. Bail Matters.
2. Criminal Appeals upto the year 2006, 2020 & 2022.
3. Criminal Misc. Main cases of the year 2022.
4. Criminal Revision Petition s of the years 2014 & 2022.
5. Writ Petitions (Crl) of the years 2021 & 2022
6. Criminal Leave Petitions of the years 2018 and 2022.
7. Cases relating to sexual harassment.
8. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Dinesh Kumar Sharma 1. Bail Matters.
2. Crl. Appeals of the years 2007, 2008, 2019 & 2022.
3. Criminal Misc. Main cases of the year 2019 and 2022.
4. Criminal Revision Petition of the year 2015, 2016 & 2022.
5. Writ Petitions (Crl) of the year 2022.
6. Crl. Leave Petitions of the year 2021 and 2022.
7. Criminal cases relating to sitting/former MPs/MLAs.
8. Cases relating to sexual harassment.
9. Regular hearing matters of the above categories.
Hon’ble Ms. Justice Swarana Kanta Sharma 1. Bail Matters.
2. Crl. Appeals of the years 2009, 2010, 2011 and 2022.
3. Criminal Misc. Main cases upto the year 2010 and of the
years 2020 and 2022.
4. Crl. Revision Petitions of the years 2018 and 2022.
5. Writ Petitions (Crl) upto the year 2015 and 2022.
6. Cases relating to sexual harassment.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Amit Mahajan
1. Bail Matters.
2. Writ Petitions (Crl) of the year 2022.
3. Criminal Appeals of the years 2012, 2013 , 2014 & 2022.
4. Criminal Misc. Main cases of the years 2015, 2016 and 2022.
5. Criminal Revision Petition of the years 2020 and 2022.
6. Cases relating to sexual harassment.
7. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Anish Dayal
1. Bail Matters.
2. Criminal Appeals of the years 2021 & 2022
3. Criminal Revision Petition of the year 2021 & 2022.
4. Criminal Leave Petitions upto the year 2017, 2020 & 2022.
5. Criminal Misc. Main cases of the years 2018 and 2022.
6. Writ Petitions (Crl) of the year 2022.
7. Transfer Petitions (Criminal).
8. Cases relating to sexual harassment.
9. Regular hearing matters of the above categories.
Hon’ble Mr. Justice Amit Sharma 1. Bail Matters.
2. Criminal Appeals of the years 2017, 2018 & 2022.
3. Criminal Misc. Main cases of the years 2011, 2012, 2013,
4. Criminal Revision Petitions up to the year 2013 and of the
years 2019 & 2022.
5. Writ Petitions (Crl) of the year 2022.
6. Cases relating to sexual harassment.
7. Regular hearing matters of the above categories.
Original Jurisdiction (Civil)
Hon’ble Mr.Justice Yashwant Varma
(Judge-in-Charge)
(‘C’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (includi ng Finals) of the years 2019,
3. Matters under the Arbitration Act, 1940 and Arbitration
and Conciliation Act, 1996 of the year 2021 & 2022.
4. All Execution Petitions includ ing the petitions under the
Arbitration Act, 1940 and Arbi tration & Conciliation Act,
1996 of the year 2021 and 2022.
5. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Navin Chawla
(‘F’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (inclu ding Finals) of the years 2014,
3. Matters under the Arbitration Act,1940 and Arbitration &
Conciliation Act, 1996 (including Finals) of the years
3. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Chandra Dhari
Singh
(‘G’ Court) 1. Matters to be heard by the Commercial Division.
2. Matters under the Arbitration Act,1940 and Arbitration &
Conciliation Act, 1996 (including Finals) of the years 2019,
3. Original Side Matters (includi ng Finals) upto the year 2013
and of the years 2021 & 2022.
4. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Prateek Jalan
(‘A’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (including Finals) of the years
3. Matters under the Arbitration Act,1940 and Arbitration &
Conciliation Act, 1996 (including Finals) of the years 2015,
2017, 2018, 2019, 2020, 2021 and 2022.
4. Execution Petitions under the Arbitration Act, 1940 and
Arbitration & Conciliation Act, 1996 upto the year 2020.
5. Regular hearing matters of the aforesaid categories.
Hon’ble Mr. Justice Sachin Datta
(‘D’ Court) 1. Matters to be heard by the Commercial Division.
2. Original Side Matters (includi ng Finals) of the years 2018,
3. Matters under the Arbitration Act, 1940 and Arbitration
& Conciliation Act, 1996 (inc luding Finals) upto 2014 and
of the years 2020, 2021 & 2022.
4. Regular hearing matters of the aforesaid categories.
IP Division
Hon’ble Mr. Justice C. Hari Shankar
(‘E’ Court) 1. Matters to be heard by the Commercial Division relating
to IPR disputes.
2. Matters relating to Intellectual Property Rights.
3. IPR Suits of the years 2021 and 2022.
4. Regular hearing matters of the above category.
Hon’ble Mr. Justice Sanjeev Narula
(‘I’ Court) 1. Matters to be heard by the Commercial Division relating
to IPR disputes.
2. Matters relating to Intellectual Property Rights.
3. IPR Suits upto the year 2014 and of the years 2019, 2020
and 2022.
4. All Company Matters.
5. Regular hearing matters of the above category.
Hon’ble Mr. Justice Amit Bansal
(‘H’ Court) 1. Matters to be heard by the Commercial Division relating
to IPR disputes.
2. Matters relating to Intellectual Property Rights.
3. IPR Suits of the years 2015, 2016, 2017, 2018 and 2022.
4. Regular hearing matters of the above category.
General Notes:
1. All fresh PILs shall be listed before the Be nch presided over by the Chief Justice.
2. Mentioning of urgent matters will be before DB-I.
3. Matters other than part-heard, pr esently pending before various Benches, shall stand transferred to
the respective Benches as per the above roster.
4. Regular/final hearing matters would be listed chro nologically so that old matters can be given
priority in disposal.
5. Specially directed matters may be assigned by the Chief Justice to any of the above Benches or any
of the Hon’ble Judges sitting singly or to specially constituted Benches.
6. ‘Commercial Appellate Division’ has been constitu ted with ten Division Benches, namely, DB-I,
members of said Division Benches, as per the pr esent roster, have been nominated to be the Judges
of the Commercial Appellate Division.
7. Matters to be heard by the Commercial Appellate Di vision shall be assigned by the Chief Justice
amongst the seven Commercial Appellate Divisions.
8. ‘Commercial Division’ consists of eight benches of a Single Judge each. Hon’ble Mr. Justice
Yashwant Varma, Hon’ble Mr. Justice Navin Chaw la, Hon’ble Mr. Justice C. Hari Shankar, Hon’ble
Mr. Justice Chandra Dhari Singh, Hon’ble Mr. Justice Prateek Jala n, Hon’ble Mr. Justice Sanjeev
Narula, Hon’ble Mr. Justice Amit Bansal and Hon’ble Mr. Justice Sachin Datta have been
nominated to be the Judges of the ‘Commercial Division’.
9. Hon’ble Mr. Justice C. Hari Shank ar, Hon’ble Mr. Justice Sanjeev Narula and Hon’ble Mr. Justice
Amit Bansal have been nominated to function as ‘IP Division’.
10. Matters to be heard by the IP Division shall be assigned by Hon’ble Judge In-charge (Original Side)
amongst the three IP Divisions.
11. In the event of change in the Judges nominated by the Chief Justice constituting the ‘Commercial
Division’ and ‘Commercial Appellate Division’, pa rt-heard matters shall stand transferred to the
Hon’ble Judge who will have the power of ‘Co mmercial Division’ and ‘Commercial Appellate
Division’, limited to that case only.
12. Hon’ble Judge-in-Charge, Original Side will distribute fresh Arbitration Matters including
Commercials Matters under the Arbitration Act, 1940 and the Arbitratio n and Conciliation Act,
13. Hon’ble Judge-in-Charge, Original Side will mark matters other than Arbitration Matters including
14. All the Hon’ble Judges on the Original Side are empowered to deal with suits/petitions arising
under the Arbitration and Conciliation Act,1996 fa lling under Section 20-B of the Specific Relief
Act,1963.
15. All fresh Bail Applications shall be equally distri buted amongst all the Single Bench Judges sitting
on the Criminal Roster.
16. Fresh Criminal Leave Petitions shall be equally distributed between Hon’ ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma and Hon’ble Mr. Justice Anish Dayal.
17. Fresh Criminal Appeals shall be equally distribu ted amongst Hon’ble Mr. Justice Yogesh Khanna,
Hon’ble Mr. Justice Anup Jairam Bhambhani, Ho n’ble Mr. Justice Jasmeet Singh, Hon’ble Mr.
Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Daya l and Hon’ble Mr. Justice Amit Sharma.
18. Fresh Criminal Writ Petitions sh all be equally distributed amon gst Hon’ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Da yal and Hon’ble Mr. Justice Amit Sharma.
19. Fresh Criminal Revision Petition s shall be equally distributed am ongst Hon’ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Da yal and Hon’ble Mr. Justice Amit Sharma.
20. Fresh Criminal Misc. Main Cases shall be equally distributed amon gst Hon’ble Mr. Justice Yogesh
Khanna, Hon’ble Mr. Justice Anup Jairam Bhambhani , Hon’ble Mr. Justice Jasmeet Singh, Hon’ble
Mr. Justice Dinesh Kumar Sharma, Hon’ble Ms. Ju stice Swarana Kanta Sharma , Hon’ble Mr. Justice
Amit Mahajan, Hon’ble Mr. Justice Anish Da yal and Hon’ble Mr. Justice Amit Sharma.
21. Fresh cases relating to sexual harassment shall be distributed category wise according to roster.
22. All the pending Bail Applications filed upto 24. 11.2022 shall be equally distributed amongst all
Single Bench Judges sitting on the Criminal Roster.
23. All Criminal Appeals of the year 2022 pending on the Board of Hon’ble Mr. Justice Sudhir Kumar
Jain shall stand transferred to the Court of Hon’ble Mr. Justice Jasmeet Singh.
24. All Criminal Misc. Main cases of the year 2022 pend ing on the Board of Hon’ ble Mr. Justice Sudhir
Kumar Jain shall stand transferred to the Court of Hon’ble Mr. Justice Dinesh Kumar Sharma.
25. All Criminal Revision Petitions of the year 2022 pending on the Board of Hon’ble Mr. Justice
Sudhir Kumar Jain shall stand transferred to th e Court of Hon’ble Mr. Justice Amit Sharma.
26. All Writ Petitions (Criminal) of the year 2022 pend ing on the Board of Hon’ble Mr. Justice Sudhir
Kumar Jain shall stand transferred to the Court of Hon’ble Mr. Justice Anup Jairam Bhambhani.
27. All Original Side Matters (inclu ding finals) of the years 2016, 2017 and 2022 pending on the Board
of Hon’ble Ms. Justice Mini Pushkarna shall stand transferred to the Court of Hon’ble Mr. Justice
Prateek Jalan.
28. All Original Side Matters (including finals) of th e year 2019 pending on the Board of Hon’ble Ms.
Justice Mini Pushkarna shall stand transferred to the Court of Hon’ble Mr. Justice Yashwant
Varma.
29. All Original Side Matters (including finals) of th e year 2018 pending on the Board of Hon’ble Ms.
Justice Mini Pushkarna shall stand transferred to the Court of Hon’ble Mr. Justice Sachin Datta.
30. Cases of the convicts/appellants in jail, whose sent ence is about to be completed or have completed
the substantial period of the maximum sentence of the offence charged against them, shall be taken
up on priority basis and every en deavor should be made to disp ose of the same expeditiously.
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The Delhi High Court's Intellectual Property (IP) Division has had a change in its roster.
With effect from November 28 (Monday), Justices C Hari Shankar, Sanjeev Narula and Amit Bansal will deal with the IP cases.
Earlier, Justices Prathiba M Singh, Navin Chawla and Jyoti Singh were sitting on the IP Division.
Apart from the IP division, rosters of several other judges have also changed.
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1. CRL.M.C. 533/2021 has been filed for quashing FIR No.239/2017
dated 12.05.2017, registered at Police Vasant Kunj(North), New Delhi for
offences under Sections 509, 506, 323, 341, 354, 354A and 34 IPC. The
complainant/respondent No.2 in the said FIR has alleged that on 12.05.2017,
when she was going to drop her children to school, the accused who reside
in the neighbourhood beat her and outraged her modesty and also committed
act of sexual harassment. The contents of FIR are not being repeated here.
2. CRL.M.C. 534/2021 has been filed for quashing FIR No.238/2017
dated 12.05.2017, registered at Police Vasant Kunj(North), New Delhi for
offences under Sections 509, 506, 323, 341, 354, 354A and 34 IPC.
3. The complainant in the said FIR is the accused in CRL.M.C.
533/2021. The allegation in this FIR is that the petitioners herein have
committed offences punishable under Section 354 IPC i.e. assault or use of
criminal force to woman with intent to outrage her modesty. The parties in
all the FIRs are residents of 95/9, Kisangarh, Vasant Kunj, Delhi, and are
4. It is stated that with the intervention of some common friends,
relatives and family members, the parties have settled their dispute and an
oral settlement has been reached between the parties. It is stated that both
the parties, the petitioners and respondents in CRL.M.C. 533/2021 and
CRL.M.C. 534/2021, have realised their mistake and they had decided to
compromise the matter.
5. As per the said oral settlement, the parties have agreed that they will
approach this Court for the quashing of the abovementioned FIRs. It is
stated that they had agreed that they will maintain harmonious relations with
each other. It is requested that the FIRs be quashed as the dispute has been
amicably resolved.
6. The parties have also filed their respective affidavits affirming the fact
that the matter has been settled amicably. It is also stated that the
complainants in both the petitions do not have any objection if the instant
FIRs and the proceedings emanating therefrom are quashed.
7. Unfortunately, it is now becoming a trend to register FIRs alleging
offences under Sections 354, 354A, 354B, 354C, 354D IPC either to force a
party from withdrawing a complaint instituted against them or to arm twist a
party. Offences under Sections 354, 354A, 354B, 354C, 354D IPC are
serious offences. Such allegations have the effect of tarnishing the image of
the person against whom such allegations are made. Allegations regarding
these offences cannot be made at a drop of a hat. This practice is an abuse of
the process of law. The instant case is a classic example as to how frivolous
allegations of Section 354 and 354A have been levelled by the parties
against each other. A small fight regarding parking has been escalated by
levelling allegation of outraging modesty of women. This court can take
judicial notice of the fact that the police force is very limited. Police
personnel have to spend time in investigating frivolous cases. They have to
attend court proceedings, prepare Status Report etc. The result is that
investigation in serious offences gets compromised and accused escape
because of shoddy investigation. Time has come to initiate action against
persons who file frivolous complaints under Sections 354, 354A, 354B,
354C, 354D IPC etc. only for ulterior purpose. Some of the petitioners in
these instant petitions are students who should understand not to take courts
and the police for granted and assume that anything and everything can be
settled and they can get away by filing false cases.
8. In view of the mutual settlement arrived at between the parties, this
Court is satisfied that no useful purpose will be served in prosecuting with
the present proceedings. Resultantly, the FIR No.238/2017 and FIR
No.239/2017 dated 12.05.2017, under Sections 509, 506, 323, 341, 354,
354A and 34 IPC registered at Police Vasant Kunj(North), New Delhi and
the proceedings emanating therefrom are hereby quashed. The parties shall
remain bound by the mutual settlement and the undertaking given to the
9. Since the Police has had to spend valuable time in investigating the
offence and considerable time has been spent by the Court in the criminal
proceedings initiated by the parties, this Court is inclined to impose cost on
the petitioners with a warning not to file false and frivolous cases. The
petitioners in CRL.M.C. 533/2021 are directed to deposit a sum of
Rs.30,000/-(Rupees Thirty Thousand Only) with ‘DHCBA Lawyers Social
Security and Welfare Fund’ within three weeks from today and the
petitioners in CRL.M.C.534/2021 are directed to deposit a sum of
Rs.30,000/-(Rupees Thirty Thousand Only) with ‘DHCBA Lawyers Social
Security and Welfare Fund’ within three weeks from today. Details of the
Copy of the receipts be also filed with the Registry to show compliance of
the order.
8. The petitions stand disposed of in above terms.
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Ruling that time has come to initiate action against persons who file frivolous complaints under Sections 354, 354A, 354B, 354C, 354D IPC etc. only for an ulterior purpose, the Delhi High Court recently imposed a cost of Rs.30,000 on the petitioners with a warning not to file false and frivolous cases. The Bench of Justice Subramonium Prasad sternly remarked that it is now becoming...
Ruling that time has come to initiate action against persons who file frivolous complaints under Sections 354, 354A, 354B, 354C, 354D IPC etc. only for an ulterior purpose, the Delhi High Court recently imposed a cost of Rs.30,000 on the petitioners with a warning not to file false and frivolous cases.
The Bench of Justice Subramonium Prasad sternly remarked that it is now becoming a trend to register FIRs alleging offences under Sections 354, 354A, 354B, 354C, 354D IPC either to force a party from withdrawing a complaint instituted against them or to arm-twist a party.
It may be noted that S. 354 of IPC deals with the offence of Assault or criminal force to woman with intent to outrage her modesty, S. 354-A relates to the offence of Sexual harassment and punishment for sexual harassment, S. 354B is related to the offence of Assault or use of criminal force to woman with intent to disrobe, S. 354C deals with the offence of Voyeurism and S. 354D deals with Stalking.
The matter before the Court
CRL.M.C. 533/2021 & 534/2021 were filed for quashing FIR No.239/2017 and 238/2017 (both registered alleging offence under Sections 509, 506, 323, 341, 354, 354A and 34 IPC) respectively and the Complainant in FIR No. 238/2017 happened to be the accused in FIR No.239/2017.
It was submitted that with the intervention of some common friends, relatives and family members, the parties have settled their dispute and an oral settlement has been reached between the parties.
It was also stated that both the parties, the petitioners and respondents in CRL.M.C. 533/2021 and CRL.M.C. 534/2021, have realised their mistake and they had decided to compromise the matter.
As per the said oral settlement, the parties agreed that they would approach the Court for the quashing of the abovementioned FIRs and thus, it was requested that the FIRs be quashed as the dispute had been amicably resolved.
Court's observations
At the outset, the Court noted that offences under Sections 354, 354A, 354B, 354C, 354D IPC are serious offences and that such allegations have the effect of tarnishing the image of the person against whom such allegations are made.
Further, the Court opined that allegations regarding these offences cannot be made at a drop of a hat. This practice is an abuse of the process of law.
About the instant case, the Court noted that it is a 'classic example' as to how frivolous allegations of Section 354 and 354A have been levelled by the parties against each other.
The Court observed that a small fight regarding parking was escalated by levelling allegation of outraging the modesty of women.
"This court can take judicial notice of the fact that the police force is very limited. Police personnel have to spend time in investigating frivolous cases. They have to attend court proceedings, prepare Status Report etc. The result is that investigation in serious offences gets compromised and accused escape because of shoddy investigation", remarked the Court.
However, in view of the mutual settlement arrived at between the parties, the Court was satisfied that no useful purpose will be served in prosecuting with the present proceedings.
Resultantly, the FIR No.238/2017 and FIR No.239/2017 and the proceedings emanating therefrom were quashed.
Significantly, noting that the Police had to spend valuable time in investigating the offence and considerable time was spent by the Court in the criminal proceedings initiated by the parties, the Court thought it fit to impose a cost on the petitioners with a warning not to file false and frivolous cases.
Thus, the petitioners in both CRL.M.C. 533/2021 & CRL.M.C.534/2021 were directed to deposit a sum of Rs.30,000/-(Rupees Thirty Thousand Only) with 'DHCBA Lawyers Social Security and Welfare Fund' within three weeks.
Read Order
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ivil Appeal No. 4031 of 1988.
From the Judgment and Order dated 14.4.1988 of the Patna High PG NO 867 PG NO 868 Court in C.W.J.C. No. 1923 of 1988.
R.K. Jain, R.P.Singh and Y.D.Chandrachud for the Appellant.
U.S. Prasad for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
The order dated 25th March, 1988 of the Collector is under challenge in this appeal.
The same reads as follows: "Shri Raghu Nath Thakur S/o Late Gorakh Thakur, Village Repura, P.S. Puksha, District Samastipur had bid for Rs.11,900 (Rupees eleven thousands only) per month Dak in an auction of Beni Country liquor shop held on 27.3.88 and he as given the shop of Beni Country liquor but after signing in Bandobasti Register he did not deposit dak amount.
The name of Shri Raghu Nath Thakur S/o Late Gorakh Nath Village Repura, P.S. Pusa, Distt.
Samastipur is therefore placed in the black list for future under the orders passed by the Collector, Samastipur.
" This order was passed pursuant to the order of the Collector.
The letter dated 25th March, 1988, states as follows: "The Collector of the district after perusal of the said office note passed order on 25.3.88 which is produced in verbatim below: Ist bidder chunki defaulter hai atah security prapt kar len tatha bhavishya ke liae Black list karen.
" Indisputably, no notice had been given to the appellant of the proposal of black listing the appellant.
It was contended on behalf of the State Government that there was no requirement in the rule of giving any prior notice before black listing any person.
In so far as the contention that there is no requirement specifically of giving any notice is concerned, the respondent is right.
But it is an implied principle of the rule of law that any order having civil consequence should be passed only after following the PG NO 869 principles of natural justice.
It has to be realised that black listing any person in respect of business ventures has civil consequence for the future business of the person concerned in any event.
Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard and making representations against the order.
In that view of the matter, the last portion of the order in so far as it directs black listing of the appellant in respect of future contracts, cannot be sustained in law.
In the premises, that portion of the order directing that the appellant be placed in the black list in respect of future contracts under the Collector is set aside.
So far as the cancellation of the bid of the appellant is concerned, that is not affected.
This order will, however, not prevent the State Government or the appropriate authorities from taking any future steps for blacklisting the appellant if the Government is so entitled to do so in accordance with law, i.e. giving the appellant due notice and an opportunity of making representation.
After hearing the appellant, the State Government will be at liberty to pass any order in accordance with law indicating the reasons therefor.
We, however, make it quite clear that we are not expressing any opinion on the correctness or otherwise of the allegations made against the appellant.
The appeal is thus disposed of.
Appeal disposed of.
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The appellant has bid in an auction of Beni Country Liquor Shop in the District of Samastipur and was given the shop being the highest bidder but he failed to deposit the bid money in time.
The Collector, Samastipur by an order cancelled the bid and black listed the appellant.
He then moved the High Court against the order of the Collector.
The High Court upheld the order of the Collector.
The appellant appealed to this Court by special leave.
Disposing of the appeal, the Court, HELD: 1.
It is an implied principle of the rule of law that any order having civil consequences should be passed only after following the principles of natural justice.
Black listing any person in respect of business ventures has civil consequences for the future business of the person concerned in any event.
[868H; 869A] 2.
Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard and making representations against the order.
[869B] In the instant case, that portion of the order directing that the appellant be placed in the black list in respect of future contracts under the Collector is set aside.
So far as the cancellation of the bid of the appellant is concerned, that is not affected.
[869B C]
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AL APPELLATE JURISDICTION: Criminal Appeal No. 450 of 1987 From the Judgment and order dated 26.3.1987 of the Allahabad High Court in Habeas Corpus Petition No. 17849 of 1986.
D.K. Garg for the Appellant.
Dalveer Bhandari for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
Special leave granted.
Arguments heard.
This appeal by special leave is directed against the judgment and order of the High Court of Allahabad dated 26th March, 1987 in Habeas Corpus Petition No. 17849 of 1986 dismissing the writ petition and confirming the order of detention passed against the appellant by the District Magistrate, Allahabad.
The respondent No. 2, District Magistrate, Allahabad clamped upon the appellant an order of detention under section 3(2) of the and the appellant was detained at Central Jail, Naini on October 10, 1986.
On the same day the grounds of detention were served on the appellant.
Two grounds of detention mentioned in the grounds of detention are stated hereinbelow: (1) That the appellant on 2.10.1986 threatened the shopkeepers of Khalasi Line locality in order to extort money anc} was saying that appellant could not come for the last auction because the police were present on that occasion and that the shopkeepers bad not given the appellant the money received in the above auction.
Further that the shopkeepers should collect money and give it to the appellant or else the appellant would shoot all of them.
As a result of this the place was terror stricken and the shops and houses closed down.
A report of this incident was made by the picket employed at police station Kydganj, i.e. report No. 38 time 20.
10 dated 2. 10.86.
This was investigated by Dev Shankar, S.I. Of police station Kydganj and the details written in report No. 2 time 00.30 dated 3.
10.86 in the general diary as Case crime No. 248/86, Section 307 I.P.C. and case crime No.249/86, Section 4/5 Explosives Act, Police Station, Kydganj, Allahabad.
131 (2) On 3. 10.
1986, the appellant armed with illegal bombs went towards Uttam Talkies.
Kydganj, Allahabad with the intention of committing serious offence.
On information being received, the police went to arrest the appellant.
That the appellant with the intention to kill lobbed a bomb but the police party escaped it by a hair 's breadth and the bomb exploded.
As a result of this there was a stampede in the public, the doors and windows of the houses and shops closed down, the traffic stopped and the people were terror stricken.
The police arrested appellant on the spot and recovered 3 illegal bombs from the appellant.
The appellant has also been supplied with a copy of a confidential letter written by the Superintendent of Police, Allahabad to District Magistrate, Allahabad dated 9.10.1986.
The said letter was written by the Superintendent of Police on the recommendation of the Station officer, Kydganj, Allahabad on 5.
The appellant has also been supplied with the copy of the report No. 38 in which it is alleged that the appellant threatened the shopkeepers of Khalasi Line in an attempt to extort money.
He was also supplied with the copy of the report which was registered as case crime No. 248 of 1986 under section 307 I.P.C. and case crime No. 249 of 1986 under section 4/5 of the Explosives Act.
The appellant made representation against the grounds of detention before the authorities concerned but his representation was rejected and the order of detention was confirmed.
E The appellant challenged the order of detention by a writ of Habeas Corpus before the High Court of Allahabad on the ground inter alia that the grounds of detention are absolutely vague and there is complete non application of mind by the detaining authority in coming to the subjective satisfaction, that the order of detention passed on the appelant while he was in custody is wholly arbitrary and unwarranted and the two cases disclosed in the grounds of detention relate to law and order problem and not to the disturbance of public order.
The criminal proceedings pending in respect of the case should not have been by passed by taking recourse to the order of detention of the appellant who is already in custody and there was no likelihood nor any possibility of his indulging in activities prejudicial to the maintenance of public order as the appellant has not made any application for bail in the said case.
The detention order has, therefore, been assailed as illegal and bad and so the same is invalid in law.
The High Court after hearing the appellant, by its judgment and H 132 order dated 26th March, 1987 dismissed the writ petition No. 17849 of 1986 holding that the order of detention passed by the detaining authority while the appellant was in jail could not be held to be illegal in the facts and circumstances of the case.
Aggrieved by the said order the instant appeal by special leave was filed in this court.
An affidavit in counter verified by one O.P. Ojha, Station officer, Police Station, Kydganj, Allahabad has been filed.
It has been stated in paragraph 4(iii) of the counter affidavit that the appellant 's history starts from 1955 and he involved himself in a large number of criminal cases.
His name in the history sheet was included by the police.
It has been further stated that out of fear the shopkeepers of the village dare not disclose their names and the people of Khalasi Line dare not depose against the appellant since he is a goonda of the locality and people are afraid of him.
It has been further stated that this is the reason for non appearance of the shopkeepers and others as witnesses.
The first incident dated October 2, 1986 was registered in G.D. No. 38 of the said date and the second incident which occurred on October 3, 1986 was registered as case crime No. 368 of 1986 under section 302/307/120 B, I.P.C.
It has been further stated that these two incidents created terror to the shopkeepers and the people of the locality.
This resulted in a great problem of public order.
It has been stated further that after being convinced of the gravity of the situation created by the appellant and his accomplice, the District Magistrate after fully satisfying himself about the state of affairs, passed the order of detention of the appellant.
It has also been stated that the detention order was passed mainly on the basis of two criminal acts committed by the appellant on October 2 and 3, 1986.
Before passing the detention order the District Magistrate fully satisfied himself of all the conditions for passing a detention order under the .
It has also been stated that it is wrong that the allegations made in the reports dated October 2 and 3, 1986 are false.
The District Magistrate fully satisfied himself after perusing all the records before he passed the order of detention against the appellant.
The cases which have been reported on October 2 and 3, 1986 are pending trial before the Court.
It has also been stated that the order of detention was passed by the District Magistrate on the basis of the information gathered by him from the reports submitted by the police.
It has also been stated that the appellant has already applied for bail in crime case No. 248/86 under section 307 I.P.C. and crime case No. 249/86 under section 4/5 of Explosives Act.
Notices of bail applications in connection with these 133 two cases were served on the State Government prior to the passing of the detention order by the District Magistrate.
The District Magistrate passed the detention order dated October 10, 1986 when the appellant was already in jail on the apprehension that the appellant is likely to be released on bail in the near future and that if the appellant is bailed out, the public order problem will become worse.
The detention order was passed with the object of preventing the appellant from acting in a manner prejudicial to the maintenance of public order.
Hence the detention order is legal in all respects.
The history sheet of crime cases against the appellant has been annexed to the said affidavit.
Before proceeding to consider the case on merits it is relevant to quote the provisions of Section 3 sub section (2) of National security Act, 1980.
3(2):The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State.
Or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
On a plain reading of Section 3(2) of the said Act it becomes clear that the Central Government or the State Government or the District Magistrate authorised by the State Government in writing may pass an order of detention against a person on being satisfied that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing that such person be detained.
In the instant case the order of detention has been made by respondent No. 2, District Magistrate, on the basis of two criminal cases in respect of two incidents which occurred on October 2 and 3, 1986.
So far as the case being G.D. No. 38 is concerned, allegation was that the appellant was threatening the traders of Khalasi Line who participated in the auction at the fort and he was saying that he could not collect money from them on the last occasion because the police were posted there but in case they did not collect money and give it to him he would shoot all of them.
Because of this terror the shopkeeprs closed the doors and windows of their shops and houses.
The report of 134 this incident was made by the picket employed at police station, Kydganj.
It appears from this report that there are no particulars about the shopkeepers who have been terrorised and threatened for payment of money nor the names of any of the witnesses in whose presence the threat or terror was given and money was demanded, are mentioned at all.
The report is absolutely vague and it is not possible for the detenu to give an effective representation against the aforesaid ground which is one of the constitutional requirement enjoined in Article 22(5) of the Constitution of India.
The second ground which leads to crime case No. 248/86 under section 307 I.P.C. and case crime No. 249 under section 4/5 of Explosives Act and which occurred on October 3, 1986 at about 10 A.M.
On the complaint of Sub Inspector Yatendra Singh through special court, Allahabad also does not disclose any particulars as to the shopkeepers in whose presence the alleged bombs were thrown by the appellant and his associate and who were terrified and panic stricken and put down their shutters, nor the names of any of the witnesses have been mentiond in respect of the said incident.
The meaning of the word 'public order ' has been determined by this Court in the case of Kanu Biswas vs State of West Bengal.
[1972] 3 SSC 83 1.
In this case it has been held that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society.
Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order.
In the case of Haradhan Saha vs The State of West Bengal and others, [19751 3 SCC 198 this Court has observed that the following principles emerge from the judicial decisions: First: merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act.
Second: the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention.
135 Third: where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order.
Fourth: the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order.
Fifth: the order of detention is a precautionary measure.
It is based on a reasonable prognosis of the future behaviour of a person based on his part conduct in the light of the surrounding circumstances.
This has been followed in Kanchanlal Meneklal Chokshi vs State of Gujarat and others, [ ; wherein it has been observed that: "The ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention.
But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention.
Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad.
However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention.
Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that question too was borne in mind before the order of detention was made.
If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu.
" 136 In the case of Dr. Ram Manohar Lohia vs State of Bihar and others, [1966] l SCR 709 it has been observed by this Court that: "The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
There are three concepts according to the learned Judge (Hidayatullah, J) i.e. ' 'law and order ' ', "public order" and "security of the State ' .
It has been observed that to appreciate the scope and extent of each of them, one should imagine three concentric circles.
The largest of them represented law and order, next represented public order and the smallest represented the security of the State.
An act might affect law and order but not public order just as an act might affect public order but not the security of the State. ' ' As observed in the case of Arun Ghosh vs State of West Bengal, "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.
Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility.
It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order.
Take for instance, a man stabs another.
People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act.
Take another case of a town where there is communal tension.
A man stabs a member of the other community.
This is an act of a very different sort.
Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order.
An act by itself is not determinant of its own gravity.
In its quality it may not differ from another but in its potentiality it may be very different.
" This has been followed in the case of Nagendra Nath Mondal vs 137 State of West Bengal; , and Nand Lal Roy alias Nonda Dulal Roy vs State of West Bengal, [ Thus from these observations it is evident that an act whether amounts to a breach of law and order or a breach of public order solely depends on its extent and reach to the society.
If the act is restricted to particular individuals or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large and or the even tempo of the community that it becomes a breach of the public order.
In the case of S.K. Kedar vs State of West Bengal, this Court has observed that : "The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society.
An act by itself is not determinative of its own gravity.
In its quality it may not differ from another but in its potentiality it may be very different.
Similar acts in different contexts affect differently law and order on the one hand and public order on the other.
It is always a question of degree of the harm and its effect upon the community.
Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.
It is the degree of disturbance upon the life of the community which determines whether the disturbance amounts only to a breach of the law and order." This Court has further observed in the case of Ashok Kumar vs Delhi Administration, [ while dealing with the distinction between 'public order ' and 'law and order ' to which one of us is a party that: "The true distinction between the areas of 'public order and 'law and order ' lies not in the nature of quality of the act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of 'law and order ' and 'public order ' is a fine one but this does not mean that there can be no overlapping.
Acts similar in nature but committed in different contexts and circumstances might cause different reactions.
In one case it might affect specific individuals only and therefore touch the problem of law and order.
The act by itself therefore is not determinant of its own gravity.
It is the potentiality of the 138 act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.
" On a conspectus of all these decisions it has been observed by this Court in the case of State of U.P. vs Hari Shankar Tewari, [ ; that conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order.
One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle.
An act which may not at all be objected to in certain situations is capable of totally disturbing the public tranquility.
When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community.
An order of detention made in such a situation has to take note of the potentiality of the act objected to.
Thus whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order.
In the present case so far as the first incident which occurred on 2.
10.1986 is concerned, the ground is vague in as much as neither the names of the witnesses in whose presence the threat was given and the incident occurred, have been mentioned.
As regards the second incident which occurred on 3.
10.1986, case crime No. 248 86 under Section 307 I.P.C. and No. 249/86 under Section 4/5 Explosives Act respectively are pending trial.
It is also pertinent to remember in this connection that a case crime No. 200 of 1986 under section 323/504/506/426 I.P.C. read with section 2 3 of the U.P. Gangsters and Anti Social Activities Act No. 4 of 1986 by the police of the police station, Naini, a copy of which was annexed as annexure I to this appeal, was registered against the appellant.
The said case was challenged by an application under section 482 Cr.
P.C. in the High Court.
The said application was admitted on 2.6.1986 and it is pending as Criminal Misc.
Application No. 6638 of 1986.
The High Court while admitting the case had granted stay of arrest of the appellant.
Furthermore, the appellant was taken in custody and he was in jail as an under trial prisoner on October 10.
1986 when the impugned order of detention was clamped upon him by the detaining authority, the respondent No. 2.
The appellant has 139 stated in his appeal before this Court that till date he had not applied for bail in case crime No. 248 1986 under section 307 I.P.C. and case crime No. 249 1986 under section 4/5 of the Explosives Act as well as the case registered in report No. 38 dated October 2, 1986 at police station, Kydganj.
The question is whether there is possibility of the detaining authority to be satisfied that the appellant is likely to indulge in activities prejudicial to the maintenance of public order as there is no likelihood of his being released from jail custody immediately.
This specific question arose in the case of Masood Alam vs Union of India, AIR 1973 (SC) 897 wherein it has been observed that: "The order of detention served upon the detenu while he was in jail is not invalid rendering the petitioner 's detention as void.
There is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if freed, the person concerned is likely to indulge in activities prejudicial to the security of the state or maintenance of public order.
" In the case of Rameshwar Shaw vs District Magistrate, Burdwan & Anr., [ 1 it has been observed that: "The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner.
If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention.
If this question is answered against the petitioner, then the detention order can be properly made.
It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time.
If a person is already in jail custody, how can it rationally be postulated that if he is not detained, h would act in a prejudicial manner? At the point of time when an order of detention is going to be 140 served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention.
The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under section 3(1)(a), and this basis is clearly absent in the case of the petitioner.
" In the instant case there is nothing to show that in consideration of his previous conduct and acts there.
is a likelihood of the appellant indulging in activities prejudicial] to the maintenance of public order if he is set free and/or released from custody.
It has been observed in the case of Merugu Satyanarayana etc.
vs State of Andhra Pradesh and others, [ ; by this Court that before making an order of detention in respect of a person already confined to jail "it must be present to the mind of the detaining authority that keeping in view the fact the person is already indetention a preventive detention order is still necessary.
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity.
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated.
But as stated by this Court it will depend on the facts and circumstances of each case.
It has further been observed as follows: "We are completely at a loss to understand how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act.
If the power of preventive detention is to be conferred on an officer of the level and standing of a Sub Inspector of Police, we would not be far from a Police State.
Parliament has conferred power primarily on the Central Government and the State Government and in some specific cases if the conditions set out in sub section (3) of section 3 are satisfied and the notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as 141 District Magistrate or Commissioner of Police.
In this case the District Magistrate, the detaining authority has not chosen to file his affidavit.
The affidavit in opposition is filed by a Sub Inspector of Police.
Would this imply that Sub Inspector of Police had access to the file of the District Magistrate or was the Sub Inspector the person who influenced the decision of the District Magistrate for making the detention order? From the very fact that the respondents sought to sustain the order by filing an affidavit of Sub Inspector of Police, we have serious apprehension as to whether the District Magistrate completely abdicated his functions in favour of the Sub Inspector of Police.
" In a recent case of Ramesh Yadav vs District Magistrate, Etah and others, AIR 1986 (SC) 3 15 it has been observed that: "It is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area.
If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the should not ordinarily be passed.
We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention.
The impugned order, therefore, has to be quashed.
In the instant case the detaining authority, respondent No. 2 has not come forward to file an affidavit stating whether he has taken into consideration the fact that the appellant was already in judicial custody and on considering his past activities he was subjectively satisfied that if set free or released from jail custody on bail, there was likelihood of the appellant indulging in criminal activities endangering public order.
On the other hand, the Station officer of the Police Station, Kydganj, Shri O.P. Ojha has filed a counter stating that the District Magistrate passed the impugned detention order when the appellant was already in jail on the apprehension that the appellant is likely to be released on 142 bail in the near future and if the appellant is bailed out, the public order problem will become worse.
This clearly goes to show that the Sub Inspector has arrogated to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act.
The District Magistrate, the detaining authority in this case has not chosen to file his affidavit.
The affidavit in opposition filed by the Station officer of Police implies that he has access to the file of the District Magistrate or he influenced the decision of the District Magistrate for making the detention order.
This is also clear from the confidential report submitted by the Senior Superintendent of Police, Allahabad to the District Magistrate, Allahabad as well as from the report of the Sub Inspector of Police annexed with the said report wherein it has been specifically stated that it was apprehended that the appellant, Gulab Mehra who is at present in Naini jail and who has applied for bail, if enlarged on bail, public order will be disturbed.
There is nothing to show that there was awareness in the mind of the District Magistrate, the detaining authority of the fact that the appellant was in jail at the time of clamping of the order of detention, and the detaining authority was satisfied in considering his antecedents and previous criminal acts, that there is likelihood of his indulging in criminal activities jeopardizing public order if he is enlarged on bail and that there is every likelihood that the appellant will be released on bail within a short time.
On this ground alone, the order of detention is invalid.
It may also be stated in this connection that the respondents can very well oppose the bail application when it comes for hearing and if at all the appellant is released on bail the respondents are not without any remedy.
They can also file application in revision for cancellation of the bail application.
In such circumstances, we cannot but hold that the passing of the order of detention of the appellant who is already in custody is fully bad and as such the same is invalid in law.
We have already said hereinbefore that the respondents can very well proceed with the criminal case under section 307 of I.P.C., execute it against the appellant and can get him punished if the case is approved beyond doubt against the appellant.
It is pertinent to mention in this connection the case of Abdul Gaffer vs State of West Bengal, AIR 1975 (SC) 1496 wherein the order of detention was passed in respect of three cases registered against the petitioner.
These are as follows: (1) The petitioner along with his associates on 18.7.1971 being armed with deadly weapons like daggers etc.
committed thefts in respect of D.O. plates from the railway yard and on being challenged, pelted stones causing injury to the R.P.F. party.
The R.P.F. party had 143 to open fire but the petitioner and his associates fled away.
A (2) On 25.11.1971 the petitioner along with his associates being armed with deadly weapons committed theft in respect of batteries from empty rakes standing on the railway track.
Being challenged by the R.P.F. party the petitioner and his associates pelted stones.
The R.P.F. party fired two rounds whereby one of his associates was injured and arrested at the spot.
(3) On 20.2.
1972, at Howrah Goods Yard near Oriapara Quarters, the petitioner along with his associates being armed with deadly weapons viz. bombs, iron rods etc.
committed theft of wheat bags from a wagon and on being challenged by the R.P.F. party the petitioner and his associates pelted stones and hurled bombs.
As a result of this act train services on Howrah Burdwan line was suspended for a considerable period.
Three cases were registered in respect of these offences and order of detention was made by the District Magistrate.
The detaining authority, however, did not file an affidavit but his successor in office in response to Rule Nisi issued by the High Court filed the counter.
It has been observed firstly that the detaining authority has not filed the counter affidavit and the return filed in his place by his successor in office does not satisfactorily explain why the prosecution of the petitioner for the substantive offence in respect of which he was arrested and named in the F.I.R. was not proceeded with.
According to the counsel the so called explanation given in the counter that the witnesses being afraid were not coming forward to give evidence was too ridiculous to be believed by any reasonable person.
The Sub Inspector of Police who made the panchnama could certainly not be afraid of giving evidence.
The other material witnesses who could give evidence were the members of the R.P.F. party.
It is a para police organisation.
The bald but sweeping allegation in the counter that these witnesses were also afraid of giving evidence in court against the petitioner is a version which is too incredulous to be swallowed even by an ultra credulous person without straining his credulity to the utmost.
The order of detention was therefore held invalid.
In the instant case the police officers who withnessed the hurling of bombs and the Sub Inspector of Police who recorded the F.I.R. can come forward to give the evidence.
Therefore, in such circumstances, the open statement made in the affidavit of the Sub Inspector of Police that the witnesses are afraid of disclosing their names and coming H 144 forward to give evidence is wholly incredulous and it cannot be accepted.
The prosecution of the appellant for the substantive offences can be properly proceeded with in this case In the case of Sudhir Kumar Saha vs Commissioner of Police, Calcutta & Anr., ; the petitioner along with his associates committed various acts of crime on three occasions.
On the first occasion he attacked the people of a locality with a knife and by hurling bottles at them.
On the other two occasions he attacked the people of another locality, by hurling bomes at them.
It was held that the incidents were not interlinked and could not have prejudiced the maintenance of public order.
On considering these decisions, we are constrained to hold that the clamping of the order of detention is not in accordance with the provision of the Act.
Furthermore, the history sheet does not at all link to the proximity of the two incidents on the basis of which the o order of detention was made.
It has been vehemently urged before us by the learned counsel appearing for the appellant that in none of the cases mentioned in the history sheet the appellant has been convicted and moreover these cases related to a period much earlier than the period in which the two cases have occurred.
It has also been submitted in this connection by the learned counsel for the appellant that the appellant had not been convicted in any of the cases and the submission of the Sub Inspector of Police that the witnesses are afraid of disclosing their names and coming forward to give evidence is wholly incorrect and false in as much as witnesses in fact gave the evidence in a criminal case which ended in acquittal.
It has also been submitted by the learned counsel that the shopkeepers of the locality where the alleged hurling of bombs took place have made an application in this case that no such incident occurred on the said dates.
In the premises, aforesaid, we hold that the impugned order of detention is illegal and invalid and we allow the appeal setting aside the judgment and order of the High Court without any order as to costs.
S.L. Appeal allowed.
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HELD: The order of detention was passed by the respondent No. 2.
District Magistrate, on the basis of two Criminal Cases in respect of two incidents which had occurred on October 2 and 3, 1986.
So far as the case being G.D. No. 38 was concerned, the report of this incident was made by the picket employed at police station, Kydganj.
It appeared from this report that there were no particulars about the shopkeepers who had been terrorised and threatened for payment of money, as alleged in the grounds of detention, nor were mentioned at all the names of any of the witnesses in whose presence the threat or terror was used and money was demanded.
The report was absolutely vague and it was not possible for the detenu to give an effective representation 127 against the ground, which is one of the Constitutional requirements enjoined in Article 22(5) of the Constitution of India.
The second ground, which led to crime case No. 248/86 under section 307, I.P.C., and crime case No. 249/86 under section 4/5 of the Explosives Act and which occurred on October 3, 1986, registered on the complaint of Sub/Inspector Yatendra Singh through special court, Allahabad, also did not disclose any particulars as to the shop keepers in whose presence the bombs alleged were thrown by the appellant, and who were terrified and panic stricken, etc., nor were mentioned the names of any witnesses in respect of the said incident.
[133F, 134A D] The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon the Society, as held by this Court in Kanu Biswos vs State of West Bengal, ; , while determining the meaning of 'public order '.
Public order is what the French Call "order Publique" and is something more than ordinary maintenance of law and order.
From the observations of this Court made in many cases, it is evident that whether an act amounts to a breach of law and order or a breach of public order, solely depends upon its extent and reach to the society.
If the act is restricted to particular individuals or a group of individuals, it breaches the law and order problem, but if the effect and reach and potentiality of the act are so deep as to affect the community at large and/or the even tempo of the community, then, it becomes a breach of the public order.
An act, which may not at all be objected to in certain situations is capable of totally disturbing the public tranquillity.
When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community.
An order of detention made in such a situation has to take note of the potentiality of the act objected to.
Thus, whether an act relates to law and order or the public order depends upon the impact of the act on the life of the community, or, in other words, the reach and effect and potentiality of the act, if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect the public order .
[134D E,137A B. 138B D] In this case, so far as the first incident which occurred on 2.10.1986 was concerned, the ground was vague inasmuch as the names of the witnesses in whose presence the threat was given and the incident occurred, had not been mentioned.
As regards the second incident which occurred on 3.
10.1986, the Crime Case No. 248/86 under section 307, I.P.C. and the Crime Case No. 249/86 under section 4/5 of the Explosive Act, were pending trial.
[138E F] 128 A case crime No. 200 of 1985 under sections 323/504/506/426, l.
P.C., read with section 2/3 of the U.P. Gangsters and Anti Social Activities Act No. 4 of 1986 was registered against the appellant by the police.
That case was challenged by an application under section 482 Cr.
P.C. in the High Court.
The said application was admitted on 2.6.1986 and had been pending.
The High Court had, while admitting the case, granted stay of arrest of the appellant.
The appellant had been taken into custody and was in jail as an undertrial prisoner on October 10, 1986, when the impugned order of detention was clamped upon him.
The appellant stated in this Appeal that till date he had not applied for bail in case crime No. 248/86 and case crime No. 249/86 as well as the case registered in report No. 38 dated October 2, 1986 at the police station Kydganj.
The question was whether there was a possibility of the detaining authority to be satisfied that the appellant was likely to indulge in activities prejudicial to the maintenance of public order as there was no likelihood of his being released from the jail custody immediately.
There was nothing in the case to show that in consideration of his previous conduct and acts, there was a likelihood of the appellant 's indulging in activities prejudicial to the maintenance of public order if he was set free and/or released from custody.
[138F H, 139A B, 140B C] The detaining authority District Magistrate respondent No. 2, had not filed an affidavit stating whether he had taken into consideration the fact that the appellant had already been in the judicial custody and on considering his past activities he had been subjectively satisfied that if set free or released from jail custody on bail, there was a likelihood of his indulging in criminal activities endangering public order.
On the other hand, the Station officer of Kydganj police station, had filed a counter stating that the District Magistrate had passed the impugned detention order when the appellant was already in jail, on the p apprehension that the appellant was likely to be released on bail in the near future and if he was bailed out, the public order would become worse.
This clearly showed that the police officer had arrogated to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act.
The affidavit filed by the station officer of police implied that he had access to the file of the District Magistrate or he influenced the decision of the District Magistrate for making the detention order.
There was nothing to show that there was awareness in the mind of the District Magistrate, the detaining authority, of the fact that the appellant was in jail at the time of the clamping of the order of detention, and the detaining authority was satisfied, in considering his antecedents, that there was a likelihood of his indulging in criminal activities, jeopardising public order if he 129 was released on bail and that there was every likelihood of his being A enlarged on bail within a short time.
On this ground alone, the detention order was invalid.
It might be said in this connection that the respondents could very well oppose the bail application when it came up for hearing, and if at all the appellant was released on bail, the respondents were not without a remedy.
They could file an application for cancellation of the bail.
In the circumstances, it could not but be held that the passing of the order of detention of the appellant who was already in custody was fully bad and invalid in law.
The respondents could very well proceed with the criminal case under section 307, I.P.C., and get the appellant punished if the case was proved beyond doubt against him.
The police officers, who witnessed the hurling of the bombs and the Sub Inspector of police who recorded the F.I.R., could come forward to give evidence.
In the circumstances, the open statement in the affidavit of the Sub Inspector that the witnesses were afraid of disclosing their names and giving evidence, was wholly incredulous and could not be accepted.
[141G H, 142A G, 143G 144A] The clamping of the order of detention was not in accordance with the provisions of the Act.
The history sheet did not at all link to the proximity of the two incidents on the basis of which the detention order had been passed.
[144C D] The impugned order of detention was illegal and invalid.
[144G] E Kanu Biswas vs State of West Bengal, [1972] 3 S.C.C. 831; Haradhan Saha vs The State of West Bengal and Anr. ; ; Kanchanlal Maneklal Chokshi vs State of Gujarat & ors.
; , ; Dr. Ram Manohar Lohia vs State of Bihar & ors.; , ; Arun Ghosh vs State of West Bengal, ; Nagendra Nath Mondal vs State of West Bengal, 11972] 1 S.C.C. 498; Nand Lal Roy alias Nonda Dulal Roy vs State of West Bengal, ; S.K. Kedar vs State of West Bengal, ; Ashok Kumar vs Delhi Administration, ; State of U.P. vs Hari Shankar Tewari, ; ; Masood Alam vs Union of India, A.I.R. 1973 S.C. 897; Rameshwar Shaw vs District Magistrate Burdwan State of Andhra Pradesh & ors.
; , ; Ramesh Yadav vs District Magistrate, Etah and others, A.I.R. 1986 S.C. 315; Abdul Gaffer vs State of West Bengal, A.I.R. 1975 S.C. 1496 and Sudhir Kumar Saha vs Commissioner of Police, Calcutta, ;
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impugned order passed in Cr.M.P.No.1721 of 2021 in Spl.C.C.No.9 of 2020
on the file of the learned Special Court for POCSO Cases, Tirunelveli and
set aside the same and allow the set aside petition.
2. The learned counsel for the petitioner submitted that the petitioner
is the accused in Spl.C.C.No.9 of 2020 on the file of the learned Special
Court for POCSO Cases, Tirunelveli. He was charged for the offences under
Sections 366 (A) of IPC and Section 5(1), r/w 6 of POCSO Act. In this case,
so far 12 witnesses have been examined. P.W.2 is the victim girl and P.W.3
is the mother of the victim girl. Even though P.W.2 and P.W.3 were
examined in chief and cross-examined on 07.10.2021, in the cross
examination, some important defence with regard to the contradictions that
have been mentioned in the chief examination of P.W.2 and P.W.3 could
not be raised. Hence, the petitioner filed an application to recall P.W.2 and
P.W.3 under Section 311 Cr.P.C in Cr.M.P.No.1721 of 2021. By the
impugned order, dated 13.04.2022, the learned Judge, permitted to recall
P.W.3, mother of the victim girl for further cross-examination on payment
of cost and with regard to the victim P.W.2, dismissed the said petition. This
petition is partly allowed, on payment of cost of Rs.3,000/- on or before
29.04.2021 and permitted to recall for further cross-examination on
payment of batta and process to P.W.3 and with regard to P.W.2, the said
petition is dismissed. Aggrieved by this order, this petition has been filed.
3. The learned Government Advocate (Criminal Side) appearing for
the respondent submitted that so far, the trial Court examined P.W.1 to
P.W.12 and posted the matter on 01.07.2022 for further proceedings.
Already P.W.3 was permitted to recall, for further cross-examination and
P.W.2 being a victim girl, in order to avoid harassment to victim girl, the
petition was dismissed by the trial Court and there is no reason to interfere
with the order passed by the trial Court.
4. I have considered the rival submissions and on perusal of the
records, it is seen that the petitioner is an accused in Spl.C.C.No.9 of 2020
on the file of the Special Court for POCSO Cases, Tirunelveli. The
respondent police prosecuted the petitioner for having sexually harassed the
victim girl and the accused committed the offence punishable under
Sections 366(A) I.P.C, and Section 5(1) r/w 6 of POCSO Act. At the time of
occurrence, the victim girl was studying in the College, B.A. II year and the
occurrence took place in the year 2018 and at that time, the victim girl was
aged about 17 years.
5. On perusal of the impugned order passed by the learned trial Judge,
in view of the Section 33 (5) of POCSO Act, to avoid repeatedly harassing
the victim, the trial Court dismissed the petition with regard to P.W.2 and
with regard to P.W.3, the petition was allowed with cost of Rs.3,000/- to be
paid on or before 29.04.2021.
6. The learned counsel for the petitioner in support of the argument
relied upon the judgment of the Karnataka High Court in Crl.O.P.No.4449
of 2022, dated 06.06.2022 and submitted that once the victim crosses
18 years of age, the rigor of Section 33 (5) of the Act get diluted and in
order to give a fair chance to the petitioner/accused, the victim may be
recalled.
7. I have considered the submission made by the learned counsel for
the petitioner in this aspect. Admittedly, the victim was aged about 17 years
at the time of occurrence in the year 2018. Now, she becomes major and
also this incident happened due to the love affair between the petitioner/
accused and the victim girl. The father of the victim gave a complaint
against the accused. The statement was given by the victim under Section
161 Cr.P.C before the respondent police. He wants to expose the
contradictions in the statement of the victim before the trial Court. An
opportunity must be given to an accused to place his defence. Further
illustration Section 33 (5) of the Act is only to ensure that the child should
not be repeatedly called for the Court for examining as it would affect the
mind of the child. Now, the victim is not a child, and becomes major.
Therefore, by invoking Section 33 (5) of Act, to recall a victim for the
purpose of cross examination by the accused and in order to give a last
chance to the accused to place his defence to make prosecution of criminal
proceedings against him, P.W.2 may be recalled and the petitioner may be
permitted to cross-examine.
8. Therefore, the impugned order passed by the trial Court dismissing
the petition filed by the petitioner to recall P.W.2 for cross examination is
set aside and this petition is allowed. The trial Court is hereby directed to
recall P.W.2 for further cross examination and the petitioner is hereby
directed to cross-examine the P.W.2 and P.W.3 on the same day. It is further
directed to pay cost of the witnesses.
9. In the result, this Criminal Original Petition is allowed as above.
Consequently the connected Miscellaneous Petition is closed.
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Observing that the accused must be given an opportunity to place his defence, the Madras High court recently allowed a POCSO accused's plea for recall of the victim for cross examination. The court explained that Section 33 (5) of the Act was introduced only to ensure that the child should not be repeatedly called to the Court for examining as it would affect the mind of the child. In the...
Observing that the accused must be given an opportunity to place his defence, the Madras High court recently allowed a POCSO accused's plea for recall of the victim for cross examination.
The court explained that Section 33 (5) of the Act was introduced only to ensure that the child should not be repeatedly called to the Court for examining as it would affect the mind of the child. In the present case, the victim was no longer a child and had attained majority. Hence, the victim could be called for cross examination to give a last chance to the accused to give his defence.
Justice V.Sivagnanam
observed as follows: Further illustration Section 33 (5) of the Act is only to ensure that the child should not be repeatedly called for the Court for examining as it would affect the mind of the child. Now, the victim is not a child, and becomes major. Therefore, by invoking Section 33 (5) of Act, to recall a victim for the purpose of cross examination by the accused and in order to give a last chance to the accused to place his defence to make prosecution of criminal proceedings against him, P.W.2 may be recalled and the petitioner may be permitted to cross-examine.
In the present case, the Petitioner was charged for the offences under Sections 366 (A) of IPC and Section 5(1), r/w 6 of POCSO Act. He had filed application under Section 311 Cr.P.C to recall the victim and her mother to bring forward certain contradictions in their statements which could not be addressed at the time of cross examination. The trial court allowed recalling of the mother of the victim and at the same time dismissed the petition for recalling the victim.
The State submitted that the order of the trial court was only passed to avoid further harassment of the victim girl and hence no interference warranted.
The court remarked that the complaint was filed by the father of the victim due to an alleged love affair between the petitioner and the victim. It was also admitted that the petitioner who was 17 year old at the time of the incident was now become major. Therefore, the accused should be given a chance to prove his case.
Thus, the order of the trial court dismissing the petition for cross examination was set aside. The court directed that the accused could cross examination the victim and her mother on the same day and also directed him to pay the cost to the witnesses.
Related Read: POCSO Act | Bar U/S 33(5) To Recall Minor Victim Not Applicable After Her Attaining Majority: Madras High Court
Case Title: Sankar v. State
Case No: CRL.O.P (MD) No.11427 of 2022
Counsel for the Petitioner: Mr.R.Karunanidhi
Counsel for the Respondent: Mr.R.Suresh Kumar, Government Advocate (Crl.Side)
|
ivil Appeal No. 859(NM) of 1988.
From the Judgment and Order dated 12.1.1987 in the High Court of Delhi at New Delhi in C.W. No. 355 of 1985.
A. Subba Rao, P. Parmeshwaran and Mrs. Sushma Suri for the Petitioners.
M. Chandrasekharan, N.M. Popli and V.J. Francis for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by special leave from the judgment and order of ,the High Court.
of Delhi dated 12th January, 1988.
The respondent company manufactured wireless receiving sets, tape recorders, tape players which were assessable under Tariff Items ' 1026 33A and 37AA of the Central Excise Tariff and it had filed classification list and price lists in respect of the said goods.
On verification of the said lists, it was found that goods were unbranded and on investigation it was alleged to have come to the notice of the Department that the respond ent company was engaged in the manufacture Of wireless receiving sets and tape recorders in the brand name of "Bush".
From the documents filed by the respondent, accord ing to the appellants, it was revealed that the respondent manufactured their entire products in the brand name of "Bush" from the very beginning and were selling the same exclusively to M/s Bush India Limited or its authorised wholesale dealers only.
This fact was nowhere mentioned by the respondent in its price list or its classification lists and this, according to the appellants, amounted to wilful suppression of facts with the intention to evade payment of central excise duty.
Certain enquiries were made and to safeguard the interest of revenue the respondent was re quested time and again to observe the provisions of rule 9B of the Central Excise Rules, 1944 and execute B 13 surety bond.
However, it is stated that respondent evaded the execution of the said bond which was, according to the appellants, done deliberately.
Thereafter, on 4th January, 1985, a Show Cause Notice was issued for the period 1st April, 1983 to 30th November, 1984 requiring the respondent to show cause as to why M/s Bush India Limited should not be treated as a related person and a favoured buyer of the respondent company for the purpose of determination of wholesale cash price and as to why the concessional rate of duty under notification No. 358/77 CE should not be denied to the respondent and as to why the differential duty in respect of the goods cleared during the period should not be recovered.
While the adjudication on the basis of the Show Cause Notice was pending, the respondent company was again requested to execute the surety bond in July, 1984.
Respond ent company thereafter filed a writ petition in the High Court of Delhi under Article 226 of the Constitution praying for quashing of the Show Cause Notice and the communication dated 11th July, 1984 and for mandamus to allow it to clear the goods on the basis of the price at which the goods were sold by it allowing the benefit of the relevant notifica tion.
The High Court by the order dated 12th January, 1987 held that the value of the goods manufactured by the re spondent company was the price charged by it from M/s Bush India Ltd. and not the market value at which M/s Bush India Ltd. sold the goods to its wholesalers.
In the premises, it was held that there was no misdeclaration of the value and the Show Cause Notices were quashed.
In passing the impugned order, the High Court followed its decision in C.W. 197/85.
It is, therefore, necessary to refer to the said decision of the High Court.
The said decision challenged 1027 the notice dated 31st December, 1984 and a demand notice of the same date.
It was contended on behalf of the petitioner in that case, who is the respondent in the instant appeal that the said respondent merely manufacture the aforesaid items for Bush India and after manufacturing those, it sells those to M/s Bush India Ltd. It was contended that for the purpose of finding out the price for payment of excise duty, only the price which was charged by the respondent from Bush India Limited could be taken into account and the price at which M/s Bush India Ltd. further sold those goods in the market was not the price which was to be taken for the excise duty.
It was contended that Bush India Ltd. was not a related person of the respondent within the meaning of Section 4(4)(c) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') and reliance was placed on the decision of this Court in Union of India vs Bombay Tyre International, ; On the merits of the case, reliance was also placed on certain decisions of this Court as well as the decision of the Delhi High Court.
The High Court found that the case of the respondent was directly covered by all these decisions.
In the prem ises, the High Court quashed the said Show Cause Notices and the demand notice.
The question, therefore, is whether the High Court was right in the view it took.
Unfortunately, in the instant case, apart from the facts recorded hereinbefore, there is no other fact.
Learned Counsel appearing for the revenue, Shri A. Subba Rao con tended before us that the High Court was in error in not realising that in the facts and the circumstances of this case, it was an arranged affair and really M/s Bush India Ltd. was a related person and as such the price charged from it could not represent the correct assessable value for the purpose of excise duty.
As noted hereinbefore, the events in this case happened from 1985 onwards.
In the premises, the amended provisions of Section 4 of the Act, as amended by the Amendment Act of 1973, would be applicable.
Section 3 of the said Act enjoins that there shall be levied and collected in such manner as might be prescribed duties of excise on all excisable goods other than salt which are produced and manufactured in India.
Section 4(1)(a) of the Act provides: "4.
(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this sec tion, be deemed to be (a) the normal price thereof, that is to 1028 say, the price at which such goods are ordi narily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: Provided that (i) where, in accordance with the normal practice of the wholesale 'trade in such goods, such goods are sold by the asses see at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each class of buyers ;" Proviso (iii) to section 4(1)(a) of the Act enjoins that: "where the assessee so arranges that the goods are generally not sold by him in the course of wholesale trade except to or through a related person, the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related per sons) or where such goods are not sold to such dealers, to dealers (being related persons) who sell such goods in retail.
" According to clause (c) of sub section (4) of section 4 of the Act, "related person" means a person who is so asso ciated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee, and any sub distributor of such distributor.
The Explanation to Section 4(4)(c) further provides that in this clause "holding company", "subsidiary company" and "relative" have the same meanings as in the ( 1 of 1956).
It is in this context that the validity or otherwise of the High Court 's view has to be judged.
In Union of India vs Bombay Tyre International, (supra), this Court had to examine this question.
This Court examined the scheme of Section 4(1)(a) before the Amendment Act, 1973 and also the position after the amendment.
It was contended in that case before this Court that the definition of the expression "related person" was 1029 arbitrary and it included within its ambit a distributor of the assessee.
This Court however held that in the definition of "related person" being a relative and a distributor could be legitimately read down and its validity upheld.
The definition of related person should be so read, this court emphasised, that the words "a relative and a distributor of the assessee" should be understood to mean a distributor who was a relative of the assessee.
The Explanation to section 4(4)(c) provides that the expression "relative" has the same meaning as in the .
The definition of "related person", as being "a person who is so associated with the assessee that they have interest, directly or indirectly, in the business of each other and includes a holding company, a subsidiary company . . ", shows a sufficiently restricted basis for employing the legal fic tion.
This Court reiterated that it is well settled that in a suitable case the court could lift the corporate veil where the companies share the relationship of a holding company and a subsidiary company and also to pay regard to the economic realities behind the legal facade.
The true position, it was explained by the aforesaid decision, under the said Act is the price at which the excisable goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of remov al as defined in sub section (4)(b) of section 4 of the Act is the basis for determination of excisable value provided, of course, the buyer is not a related person within the meaning of sub section (4)(c) of section 4 and the price is the sole consideration for the sale.
This aspect was further examined by this Court in Union of India & Ors.
vs Atic Industries Ltd., ; This Court referred to the decision of Bombay Tyre International (supra) and also referred to the first part of the definition of "related person" in clause (c) of section 4(4) which defines "related person" to mean "a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other".
It was not enough, it was held, that the person alleged to be a related person had an inter est, direct or indirect in the business of the assessee.
To attract the applicability of the first part of the defini tion, the assessee and, the person alleged to be a related person must have interest direct or indirect in the business of each other.
Each of them must have a direct or indirect interest in the business of the other.
The quality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct while the interest of the latter in the business of the former may be indirect.
That would not make any difference so long as each has got some inter est, direct or indirect in the business of the other.
In that case, this Court found that Atul Products Ltd. has interest in the business of M/s Atic Industries Ltd. since it held 50% of 1030 the share capital of that assessee and had interest as shareholder in the business carried on by the assessee.
But this Court was of the view that it could not be said that the assessee, a limited company, had any interest, direct or indirect in the business carried on by one of its sharehold ers, namely, Atul Products Ltd., even though the sharehold ing of such shareholder might be 50%.
Secondly, it was noted that Atul Products Ltd. was a wholesale buyer of the dyes manufactured by the assessee but even then, since the trans actions between them were as principal to principal, it was difficult to appreciate how the assessee could be said by virtue of that circumstances to have any interest, direct or indirect, in the business of Atul Products Ltd. The asses see, it was observed, was not concerned whether Atul Products sold or did not sell the dyes purchased by it from the assessee nor was it concerned whether Atul Products Ltd. sold such dyes at a profit or at a loss.
In those circum stances, the first part of the definition of related persons in clause (c) of sub section (4) of section 4 of the amended Act was, therefore, clearly not satisfied both in relation to Atul Products Ltd. as also in relation to Crescent Dves and Chemicals Ltd., a subsidiary company of Atic Industries Ltd., and neither of them could be said to be a "related person" vis a vis the assessee within the meaning of the definition of that term in clause (c) of sub section (4) of section 4 of the amended Act.
In those circumstances, the assessable value, it was held, of the dyes manufactured by the assessee could not be determined with reference to the selling price charged by Atul Products Ltd. and Crescent Dyes and Chemicals Ltd. to their purchasers but must be determined on the basis of the wholesale case price charged by the assessee to Atul Products Ltd. and Crescent Dyes and Chemicals Ltd. In that case, the assessee at all material times sold the large bulk of dyes manufactured by it in wholesale to Atul Products and Imperial Chemical Industries (India) Pvt. Ltd. which subsequently came to be known as Crescent Dyes & Chemicals Ltd. at a uniform price applicable alike to both these wholesale buyers and these wholesale buyers sold these dyes to dealers and consumers at a higher price which inter alia included the expenses incurred by them as also their profit.
It was noted that the transac tions between the assessee .on the one hand and Atul Products Ltd. and Crescent Dyes and Chemicals Ltd. on the other were as principal to principal and the wholesale price charged by the assessee to Atul Products Ltd. and Crescent Dyes and Chemicals was the sole consideration for the sale and no extra commercial consideration entered in the deter mination of such price.
For appreciating how the wholesale price could be the basis of the determination of the assess able value, a reference may be made to the decision of this Court in Union of India & Ors.
vs Cibatul Limited, [1985] Supp.
3 SCR 95.
In 1031 that case, the respondent Cibatul Ltd. entered into two agreements with Ciba Geigy of India Ltd. for manufacturing resins by the seller.
The joint manufacturing programme indicated that the resins were to be manufactured in accord ance with the restrictions and specifications constituting the buyer 's standard and supplied at prices to be agreed upon from time to time.
The buyer was entitled to test a sample of each batch of the goods and after its approval the goods were to be released for sale to the buyer.
The products were to bear certain trademarks being the property of the foreign company Ciba Geigy of Basle.
Tripartite agreements were also executed between the buyer, the seller and the foreign company, recognising the buyer as the regis tered or licensed user of the trade marks, authorising the seller to affix the trade marks on the products manufactured "as an agent for and on behalf of the buyer and not of his own account" and the right of the buyer being reserved to revoke the authority given to the seller to affix the trade marks.
The respondent in that case filed declaration for the purposes of levy of excise under the said Act show ing the wholesale prices of different classes .of goods sold by it during the period May, 1972 to May, 1975.
The declara tion included the wholesale prices of the different resins manufactured under the two aforesaid agreements.
The Assist ant Collector of Custom revised those prices upwards on the basis that the wholesale price should be the price for which the buyer sold the product in the market.
According to the Assistant Collector the buyer was the manufacturer of goods and not the seller.
The Collector of Central Excise allowed the appeals of the respondent and accepted the plea that the wholesale price disclosed by the seller was the proper basis for determining the excise duty.
The Appellate orders were, however, revised by the Central Govt.
under sub section (2) of section 36 of the Act and the orders made by the Assistant Collector were restored.
According to the Central Govt.
the buyer was the person engaged in the production of the goods and the seller merely manufactured them on behalf of.the buyer and that under the agreements the seller was required to affix the trade marks of the buyer on the manufactured goods and that indicated that the goods belonged to the buyer.
There is a ring of similarity between the facts of that case and the facts of the instant appeal before us.
The orders of the Central Govt.
were challenged under Article 226 of the Constitution.
The High Court held that the goods were manufactured by the seller as its own goods, and there fore, the wholesale price charged by the seller must form the true basis for the levy of excise duty.
On appeal.
this Court held that the High Court was right in concluding that the wholesale price of the goods manufactured by the seller was the wholesale price at which it sold those goods to the buyer, and it was 1032 not the wholesale price at which the buyer sold those goods to others.
The relevant provisions of the agreements and the other material on the record showed that the manufacturing programme was drawn up jointly by the buyer and the seller and not merely by the buyer, and that the buyer was obliged to purchase the manufactured product from the seller only if it conformed to the buyer 's standard.
For this purpose, the buyer was entitled to test a sample of each batch of the manufactured product and it was only on approval by him that the product was released for sale by the seller to the buyer.
It was apparent that the seller could not be said to manufacture the goods in those facts, it was held, on behalf of the buyer.
It was further found that it was clear from the record that the trade marks of the buyer were to be affixed on those goods only which were found to conform to the specifications or standard stipulated by the buyer.
All goods not approved by the buyer could not bear those trade marks and were disposed of by the sellers without the advan tage of those trade marks.
This question was again examined by this Court in Joint Secretary to.the Govt.
of India & Ors.
vs Food Specialities Ltd., [1985] Supp.
3 SCR 165.
There the respondent used to manufacture certain goods for sale in India by M/s Nestle 's Products India Ltd. (for short Nestle 's) under certain trade marks in respect of which the latter was registered as the sole registered user in India.
The goods were supplied to Nestle 's at wholesale price on rail at Moga or free on lorry at factory.
The respondent disputed the value of the goods determined by the excise authorities for the purpose of the levy under the said Act and ultimately the respondent filed writ petitions in the High Court.
The High Court allowed the writ petitions holding that the value of the trade marks could not form a component of the value of the goods for the purpose of assessment of excise duty.
In appeal to this Court, the appellant contended that the value of the goods sold by the respondent to Nestle 's should, for the purpose of levy of excise duty, include the value of the trade marks under which the goods were sold in the market and that the value of such trade marks should be added to the wholesale price for which the goods were sold by the respondent to Nestle 'section Dismissing the appeal, it was held that the value of Nestle 's trade marks could not be added to the wholesale price charged by the respondent to Nestle 's for the purpose of computing the value of the goods manufactured by the respondent in the assessment to excise duty.
In that case, it was held that what were sold and supplied by the respond ent were goods manufactured by it with the trade marks affixed to them and it was the wholesale cash price of goods that must determine the value for the purpose of assessment of excise duty.
It 1033 was immaterial that the trade marks belonged to Nestle 'section What was material was that Nestle 's had authorised the respondent to affix the trade marks on the goods manufac tured by it and it was the goods with the trade marks af fixed to them that were sold by the respondent to Nestle 'section There could, therefore, be no doubt, it was held, that the wholesale price at which the goods with the trade marks affixed to them were sold by the respondent to Nestle 's as stipulated under the agreements would be the value of the goods for the purpose of excise duty.
That was the price at which the respondent sold the goods to Nestle 's in the course of wholesale trade.
Similarly in the instant case, it appears that the brand name "Bush" was affixed to the goods produced by the re spondent.
In M/s Sidhosons and Others vs Union of India and others, [1987] 1 SCC 25, it was held that the excise duty was payable on the market value fetched by the goods, in the wholesale market at the factory gate manufactured by the manufacturers, i.e., the price charged by the manufacturers to the buyer under the agreement.
It could not be assessed on the basis of the market value obtained by the buyers who also add to the value of the manufactured goods the value of their own property in the goodwill of the 'brand name '.
In view of the facts that have emerged in this case, the High Court came to the conclusion that the market value of the goods of the respondent herein was the price charged from M/s Bush India Ltd. and not the market value at which price M/s Bush India Ltd. sold to its whole sellers for the purpose of payment of excise duty.
The High Court, there fore, quashed the Show Cause Notice and the Demand Notice.
Shri A. Subba Rao on behalf of the Revenue tried to contend before us that the facts of this case revealed that it was a device to under charge.
The respondent herein was brought in to divide the sale price of M/s Bush India Ltd. to be the basis of the assessable value.
It is true that the facts of this case do warrant a great deal of suspicion.
But it is not possible to hold otherwise than what has been held by the High Court in this case.
It is true, as Shri Rao drew our attention, that even though the Corporation might be a legal personality distinct from its members, the Court is entitled to lift the mask of corporate entity if the concep tion is used for tax evasion, or to circumvent tax obliga tion or to perpetrate a fraud.
In this connection, reference may be made to the observations of this Court in Juggi Lal Kamlapat vs Commissioner of Income tax, U.P., In the background of the facts 1034 found we, however, need not get ourselves bogged with the controversy as to judicial approach to tax avoidance devices as tax pointed out in McDowell and Co. Ltd. vs Commercial Tax Officer, , where this Court tried to discourage colourable devices.
It is true that tax planning may be legitimate provided it is within the framework of the law.
Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods.
It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges.
It is also true that in order to create,the atmosphere of tax compliance, taxes must be reasonably collected and when collected, should be utilised in proper expenditure and not wasted.
(See the observations in Commissioner of Wealth Tax vs Arvind Narottam; , , It is not necessary, in the facts of this case to notice the change in the trend of judicial approach in England: (Sherdeley vs Sherdeley, While it is true, as observed by Chinnappa Reddy, J. in McDowell and Co. Ltd. vs Commercial Tax Offi cer, (supra) too much to expect the legislature to intervene and take care of every device and scheme to avoid taxation and it is up to the court sometimes to take stock to deter mine the nature of the new and sophisticated legal devices to avoid tax and to expose the devices for what they really are and to refuse to give judicial ' benediction, it is necessary to remember as observed by Lord Reid in Greenberg vs IRC, that one must find out the true nature of the transaction.
It is unsafe to make bad laws out of hard facts and one should avoid subverting the rule of law.
Unfortunately, in the instant case, facts have not been found with such an approach by the lower authori ties and the High Court had no alternative on the facts as found but to quash the Show Cause and the Demand Notices.
In that view of the matter, the appeal fails and is accordingly dismissed.
But there will be no order as to costs.
We dismiss this appeal with reluctance.
Our reluc tance is not to be ascribed to any hesitation to accept the inference flowing from the facts found but reluctance is due to the fact that the facts were not properly found.
T.N.A. Appeal dismissed.
|
The respondent company was engaged in the manufacture of wireless receiving sets, tape recorders, tape players.
These products were assessable under Tariff Items 33A and 37AA of the Central Excise Tariff.
In the classification list and price lists filed by the respondentassessee company these goods were shown as unbranded goods.
Subsequentiy it was found that the respondent assessee company was manufacturing their products in the brand name of "Bush" and were selling the same exclusively to M/s Bush India Ltd. or its autho rised wholesale dealers only.
The appellants Revenue alleged that there was wilful suppression of facts by the respondent company with intention to evade excise duty because this fact was not mentioned by the company in the price list or classification list, filed.
A show Cause Notice was issued requiring the respondent company to show cause as to why, (i) M/s Bush India Limited should not be treated as .a 'related person ' and a favoured buyer of the respondent company for the purpose of determi nation of wholesale cash price, (ii) the concessional rate of duty under notification No. 358/77 CE should 1024 not be denied to the respondent and, (iii) the differential duty in respect of the goods cleared should not be recov ered.
Instead of executing the surety bond the respondent assessee company filed a writ petition in the High Court praying for quashing of the Show Cause Notice and for a mandamus to allow it to clear the goods on the basis of the price at which the goods were sold by it to Bush India Limited allowing the benefit of the relevant notification.
The High Court following its earlier decision held that for the purpose of payment of excise duty the market value of the goods of the respondent assessee company was the price charged by it from M/s Bush India Ltd., and not the market value at which price M/s Bush India Ltd. sold the goods.
It further held that there was no misdeclaration of the value by the assessee company, and it accordingly quashed the Show Cause Notice and the Demand Notice for recovery.
In this appeal by the Revenue it was contended that in the facts and circumstances of the case the High Court committed an error in not realising that M/s Bush India Ltd. was a related person and as such the price charged by the respondent company from M/s Bush India could not represent the correct assessable value for the purpose of excise duty.
Dismissing the appeal, HELD: 1.
Tax planning may be legitimate provided it is within the ' framework of the law.
But colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by dubious methods.
It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges.
In order to create the atmosphere of tax com pliance, taxes must be reasonably collected and when col lected, should be utilised in proper expenditure and not wasted.
It is too much to expect the legislature to inter vene and take care of every device and scheme to avoid taxation and it is up to the court sometimes to take stock to determine the nature of the new sophisticated legal devices to avoid tax and to expose the devices for what they really are and to refuse to give judicial benediction.
[1034A B, D] 2.
One must find out the true nature of the transaction.
Even though the corporation might be a legal personality distinct from its members, the court is entitled to lift the mask of corporate entity if the conception is used for tax evasion, or to circumvent tax obligation perpetrate a fraud.
[1034E, 1033G] 1025 3.
It is unsafe to make bad laws out of hard facts and one should avoid subverting the rule of law.
In the instant case, facts have not been found with such an approach by the lower authorities, and the High Court had no alternative on the facts as found but to quash the Show Cause and Demand Notices.
It appears that the brand name "Bush" was affixed to the goods produced by the respondent.
For the purpose of excise duty, the market value of such goods was the price charged from M/s Bush India Ltd. and not the market value at which price M/s Bush India sold the same.
[1034E, 1033C, E] Juggi Lal Kamlapat vs Commissioner of Income tax, U.P., ; Mc Dowell and Co. Ltd. vs Commercial Tax Officer, ; Commissioner of Wealth Tax vs Arvind Narottam, ; Sherdeley vs Sherdeley, and Greenberg vs IRC.
referred to.
Union of India vs Bombay Tyre International, ; ; Union of India & Ors., vs Atic Industries Ltd., ; ; Union of India & Ors.
vs Cibatul Limited, [1985] Supp.
3 SCR 95; Joint Secretary to the Government of India & Ors.
vs Food Specialities Ltd., [1985] Supp.
3 SCR 165 and M/s Sidhosons & Ors.
vs Union of India & Ors, [1987] 1 SCC 25 relied on.
|
minal Appeal No. 818 of 1985.
From the Judgment and Order dated 4.7.1985 of the Kerala High Court in Criminal Appeal No. 251 of 1982.
P.S. Poti and Ms. Malini Poduval for the Appellant.
M.T. George for the Respondent.
The Judgment of the Court was delivered by N.P. SINGH, J.
The appellant along with others was put on trial for offenses under sections 302 read with 149, 148, 323 of the Penal Code on the charge of committing the murder of Moideen Kutty (hereinafter referred to as the deceased).
The Trial Court on consideration of the 695 materials on record came to the conclusion that the charges leveled against the accused persons have not been established, beyond all reasonable doubt and on that finding acquitted the appellant as well others.
On appeal being filed on behalf of the State of Kerala the High Court convicted the appellant under section 302 of the Penal Code and sentenced him to undergo rigorous imprisonment for life.
So far another accused Alavi who had been acquitted by the Trial Court was also convicted by the High Court under section 323 of the Penal Code and sentenced to pay a fine of Rs. 250 and in default thereof to suffer simple imprisonment for a term of one month.
The acquittal of other accused persons was affirmed by the High Court by dismissal of the appeal against them.
The case of the prosecution is that on 16.9.1980 Mammed Kutty at 6.00 A.M. in the morning pelted stones at the house of the deceased.
At about 12.00 in the noon while Mammed Kutty and his brother Abdulla Kutty were passing in front of the house of the deceased, a protest was made by the deceased in respect of the morning incident.
They denied that any stone had been pelted by them.
It is the further case of the prosecution that at about 2 P.M. while the deceased was sitting with his wife (PW4) and others on the varandah of his house, five persons including the appellant came to his courtyard and challenged him to come out, if he wanted to beat aforesaid Mammed Kutty and Abdulla.
The deceased stepped out into his courtyard and asked the accused persons not to create a scene.
At this the appellant and the other accused (since acquitted) gave some blows to the deceased on his hand.
Thereafter the deceased raised his hand to give a blow to the appellant.
At this very moment, the appellant took out a dagger from his waist and gave an injury on the upper part of the chest of the deceased near the left shoulder and above the armpit.
The deceased ran towards the house of PW1 and fell on the varandah.
Thereafter the accused persons escaped.
The victim was removed to the Medical Hospital Calicut, where he was examined by PW9.
But soon thereafter he expired.
The First Information Report was lodged at 7.15 P.M.
After investigation the charge sheet was submitted against five accused persons.
At the trial prosecution examined four eye witnesses PW1 to PW4.
The doctor who held the post mortem examination was examined as PW8.
He found only one incised penetrating wound vertically placed on the front of left shoulder above the left armpit 'tailing 6 cm.
in length running towards from the lower sharp end.
" According to his opinion, "The an 696 died because the artery was cut. .
This injury became dangerous only because it cut the artery. .
In the cross examination PW8 stated that it was impossible to cause an injury like one which was found on the person of the victim by the assailant standing in front of the victim.
He also stated that the tailing of the injury show that either the knife was dragged after stabing or that the injury was caused during the course of the struggle.
According to him, if the accused had given a direct blow, as is normally done, there would not have been the tailing of the injury.
The learned counsel appearing for the appellant placed the statement made in the First Information Report, the evidence of the eye witnesses, in connection with the morning incident of pelting of stones, to show that it was a concoction and none had pelted any stone on the house of the deceased.
According to the learned counsel, if this part of the prosecution case is disbelieved then it shall have a bearing on the main occurrence itself.
It was also pointed out that the prosecution has suppressed real manner of occurrence in as much as one Abdulla on the side of the accused persons was first assaulted by the prosecution party on the same day at about 1.30 P.M. and he was hospitalised after having received the injuries.
That incident was an integral part of the occurrence which has not been disclosed by the prosecution.
In this connection our attention was drawn to the evidence of DW1 who has stated that he had examined the injuries on the person of one Abdulla on 16.9.1980 at 4.30 P.M. and found three injuries on his person, (i) A contusion on the left shoulder 4 x 2 cm, (ii) abrasion below the right collar bone 3 x 5 cm.
and (iii) injury on the outer side of the left ankle 4 x 3 cm.
He has also stated that the said Abdulla had alleged that he had been assaulted with a wooden stick at 1.30 P.M. the same day.
The Trial Court while acquitting the accused persons has attached great importance to the injury found on the person of aforesaid Abdulla and has drawn adverse inference against the prosecution case.
The High Court has rightly pointed out that merely non disclosure of the aforesaid superficial injuries on the person of Abdulla even if those injuries had been caused in the same occurrence, shall not in any manner affect the prosecution case: It is well settled that if the evidence of the eye witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been explained by the prosecution.
697 According to us, if the evidence of four eve witnesses including the evidence of the son and the wife of the deceased are accepted as reliable and trust worthy then the prosecution case cannot be rejected merely on .the ground that the incident of pelting of the stones on behalf of the accused in the early morning had not been proved or established or that some minor injuries on the person of Abdulla caused in the same occurrence had not been disclosed and explained by the prosecution.
So far the four eve witnesses are concerned they have been named in the First Information Report.
The First Information Report was lodged at 7.15 P.M. the same evening, within two hours of the death of the victim.
In the First Information Report the details of the occurrence was men tioned.
The version disclosed in the First Information Report has been supported by the eye witnesses before the Court.
The learned counsel appearing for the appellant could not point out any reason why their evidence against the appellant should not be accepted.
It may be pointed out that in the First Information Report itself PW1, the informant, stated that this appellant came to the house of the deceased and challenged him as to who was there to beat Abdulla and Muhammed Kutty.
He further stated that having heard this the deceased moved towards them and asked them to go back.
At that very moment this appellant and the other co accused Alavi gave him blows on his hand.
Thereafter the deceased tried to give counter blow to the appellant.
Then the appellant took out a knife from his waist and gave a blow from the said knife, to the deceased at his left collar bone.
The prosecution very fairly admitted that accused persons were not carrying any weapon in their hands and during the protest made, a sudden quarrel and fight took place between the prosecution party and the accused persons.
Even at trial evidence the eve witnesses have admitted this part of the version and have stated that first the appellant and the other co accused gave blows on the hand of the deceased.
The knife blow was given by the appellant when the deceased was trying to give a counter blow to the appellant.
There is no dispute that the appellant suddenly took out the knife during the course of the quarrel and fight from his waist.
From the evidence of doctor PW8 referred to above it appears that injury aforesaid could not have been caused by the assailant standing in front of the victim.
It could have been caused only during the struggle.
In view of the admitted position that a sudden fight and quarrel preceded the giving of the knife 698 blow by the appellant to the victim which in all probabilities was given not while the victim and the appellant were standing face to face but during a struggle between them, causing tailing of the injury, it shall not be just and proper to hold that appellant had an intention to cause the death of the victim.
Taking the evidence of the witnesses along with circumstances of the case, according to us, the appellant had the knowledge that injury which he was causing was likely to cause death but he had no intention to cause the death of the victim.
In such a circumstances it is not possible to uphold the conviction of the appellant under section 302 of the Penal Code.
Accordingly, the conviction and sentence passed against the appellant under section 302 of the Penal Code are set aside.
The appellant is convicted under section 304 part 11 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years.
The appeal is allowed in part to the extent indicated above.
The bail bond is cancelled.
N.V.K. Appeal partly allowed.
|
The appellant along with others was tried for offences under Section 302 read with Sections 148, 149 and 323 of the Indian Penal Code.
The case of the prosecution was that on 16.9.80 Mammed Kutty at 6.00 a.m. in the morning pelted stones at the house of the deceased.
At about 12.00 noon while Mammed Kutty and his brother Abdulla Kutty were passing in front of the house of the deceased, a protest was made by the deceased in respect of the morning incident which was denied.
At about 2.00 p.m. when the deceased was sitting with his wife (PW 4) and others on the varandah of his house, 5 persons including the appellant came to his courtyard and challenged him to come out, if he wanted to beat Mammed Kutty and Abdulla.
The deceased stepped out into his courtyard and asked the accused persons not to create a scene, when the appellant and the other accused gave some blows to the deceased on his hand.
Thereafter the deceased raised his hand to give a blow to the appellant, when the appellant took out a dagger from his waist and gave an injury on the upper part of the chest of the deceased near the left shoulder and above the armpit.
The deceased ran towards the house of PW1 and fell on the varandah.
Therefore, the accused persons escaped.
The victim was removed to the Medical Hospital where he was examined by PW 9, but soon thereafter expired.
The F.I.R. was lodged at 7.15 p.m. and after investigation the chargesheet was submitted against the five accused persons.
At the trial the prosecution examined 4 eye witnesses, PW1 to PW4, and PW8 the doctor who held the post mortem examination.
693 The trial court on consideration of the materials on record came to the conclusion that the charges leveled against the accused persons had not been established beyond all reasonable doubt, and on that finding acquitted all the accused including the appellant.
Great importance was attached to the injury found on the person of Abdulla and adverse inference was drawn against the prosecution case.
On appeal by the State, the High Court convicted the appellant under Section 302 and sentenced him to undergo rigorous imprisonment for life.
Another accused (Alavi) was convicted under Section 323 of the Penal Code and sentenced to payment of fine of Rs. 250.
The acquittal of the remaining 3 accused persons by the Trial Court was affirmed.
The High Court held that mere non disclosure of the superficial injuries on the person of Abdulla even if those injuries had been caused in the same occurrence, do not in any manner affect the persecution case.
In the appeal to this court it was contended on behalf of the appellants that the statements made in the First Information Report, the evidence of the eye witnesses in connection with the morning incident of pelting of stones, show that it was a concoction and that none had pelted any stone on the house of the deceased, and that if this part of the prosecution case is disbelieved then it has a bearing on the main occurrence itself.
It was further submitted, that the prosecution had suppressed the real manner of occurrence in as much as Abdulla was first assaulted by the prosecution party on the same day at about 130 p.m. and that he was hospitalised after receiving the injuries, reliance being placed on the evidence of DW1 who had stated that he had examined the injuries on the person of Abdulla on 16.9.80 at 430 p.m.
Allowing the appeal in part, this Court, HELD:1.
It is well settled that if the evidence of the eye witnesses is held to be reliable and inspires confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been explained by the prosecution.
[696 H] In the instant case, so far as the four eye witness are concerned they have been named in the FIR.
The FIR was lodged at 7.15 p.m., the same evening, within two hours of the death of the victim.
The FIR mentions the 694 details of the occurrence, and the version disclosed therein had been supported by the eye witness before the Court.
No reason has been shown as to why the evidence of these P.Ws should not be accepted.
[697 C] 2.The prosecution has admitted that the accused persons were not carrying any weapon in their hands and during the protest made, a sudden quarrel and fight took place between the prosecution party and the accused persons.
This part of the version had been admitted at the trial by the eye witnesses in their evidence, who also stated that first the appellant and the other co accused gave blows on the hand of the deceased and that the knife blow was given by the appellant when the deceased was trying to give a counter blow to the appellant.
[697 F] In view of the admitted position that a sudden right and quarrel preceded the giving of the knife blow by the appellant to the victim which in all probability was given not while the victim and the appellant were standing face to face but during struggle between them, causing tailing of the injury, it shall not be just and proper to hold that the appellant had an intention to cause the death of the victim, but only knowledge that injury which he was causing was likely to cause death.
In such a circumstance it is not possible to uphold the conviction of appellant under Section 302 of the Indian Penal Code.
It is therefore set aside, and the appellant convicted under Section 304 Part 11 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years.
[697 H,698 A C]
|
N: Criminal Appeal Nos.
844 845 of 1985.
From the Judgment and Order dated 1.12.1982 of the Delhi High Court in Crl.
(Main) No. 551 of 1982.
Anil Deo Singh, R.N. Poddar and P.K. Mukharjee for the Appellants.
Anil Kumar Gupta, Amicus Curiae for the Respondents.
The Judgment of the Court was delivered by 814 B.C.RAY, J.
The only question involved in these two appeals is whether the criminal proceedings initiated against the appellants, i.e. Balbir Singh Sub Inspector and Ram Shanker, Constable of Delhi Police Force is maintainable in the absence of any prior sanction obtained from the Lt. Governor as required under s.197 (3) of the Code of Criminal Procedure.
Section 197(1) of the Code of Criminal Procedure envisages that no court can take cognizance of any offence alleged to have been committed by a Judge or Magistrate or a public servant while acting or purporting to act in the discharge of his official duty without previous sanction of the Government.
Sub section (2) of that Section further provides that no court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in discharge of his official duty, without obtaining the prior sanction of the Central Government.
Sub section (3) of the said Section further provides that the State Government may by notification direct that the provisions of Sub section (2) shall apply, to such class or category of members of the Forces charged with the maintenance of public order as may be specified in the said order, and upon such notification being made, the provisions of Sub section (2) will apply as if for the expression "Central Government" occurring therein, the expression "State Government were substituted.
The appellants are undoubtedly the members of Delhi Police Force.
It is also not in dispute that these appellants do not fall within the category of officers mentioned in Sub Section (1) of Sec.
197 of Criminal Procedure Code and as such no prior sanction of the Government is necessary in order to launch a prosecution against these officers.
The only question remains to be considered is whether the appellants being members of the Delhi Police Force are entitled to get the benefit of Sub Section (3) of Section 197 of Criminal Procedure Code by virtue of the notification No. S.O. 183(E) dated 20th March, 1974 issued by the Under Secretary of India read with the notification dated 7th April, 1980 issued by the Lt. Governor, Delhi under No.
F.10/77/78 HP II.
Delhi is a Union Territory within the meaning of Article 1 read with the First Schedule to the Constitution as amended by the Constitution (7th amendment) Act 1956.
The power to administer the Union Territory is vested in the President under Article 239 of the Constitution and Clause 1 of the said Article empowers the President to administer the Union Territory through 815 and Administrator to be appointed by him.
The Administrator appointed by the President under article 239(1) of the Constitution with the designation of Lt. Governor of Delhi derives only such powers, functions and duties as are entrusted to him by the President under article 239(1).
In accordance with the provisions of this Art 239(1) the aforesaid notification dated 20th March, 1974 has been made whereby the President had directed that the Administrators of all the Union Territories other than Arunachal Pradesh and Mizoram exercise, subject to the control of the President, the powers and discharge the functions under the Code of Criminal Procedure 1973 as mentioned in Schedule annexed thereto, subject to the condition mentioned therein.
The said notification was enforced on 1st April, 1974.
In this Schedule all powers and functions of the State Government except those conferred by Sections 8 and 477 of the Code were conferred on the Administrator.
Therefore, by virtue of this notification, the President empowered the Administrator of Union Territories, i.e. Lt. Governor of Delhi to exercise the powers and functions of the State Government as provided in the Code of Criminal Procedure except the powers and functions provided in Sections 8 and 477 of the said Act.
It also appears from the notification dated 7th April, 1980 that the Lt. Governor directed that the provisions of Sub Section (2) of Sec.197 "shall apply to serving police officials of all ranks of Delhi Police Force" charged with the maintenance of public order.
This notification was made in exercise of powers conferred upon the administrator under Sub Section (3) of Sec.
197 of the Code of Criminal Procedure read with the Government of India Notification Dated March 20, 1974 mentioned before Reading these two notifications together, it is crystal clear that to start a proceeding against the members of all ranks of Deli Police Officials in a Criminal Court, previous sanction of the Lt. Governor is imperative, provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty.
In the instant case the act of tampering of the Search Memos by the two appellants i.e. Balbir Singh and Ram Shankar cannot be said to have been done in discharge of their official duties inasmuch as the said Search Memos were in the custody of the Court.
The complaint was filed by the Special Railway Magistrate alleging that Search Memos which were signed by the Sub Inspector Balbir Singh did not bear any signature of the witness Ram Shankar at the time when the said Search Memos were in the custody of the Court.
Subsequently, it has been interpolated by getting the same signed by the accused Ram Shankar.
This 816 act of tampering and interfering with the records of the Court by the two petitioners by any stretch of imagination cannot be said to have been done or purported to have been done by the petitioners in discharge of their official duty.
It is pertinent to refer in this connection to the decision of this Court in Matajog Dobey vs HC.
Bhari, [1955] 2 S.C.R. 925, where this Court laid down the scope of the protection afforded by Sec.
197 of the Code of Criminal Procedure in the following terms : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
" These observations have been followed by this Court in Pukhraj vs State of Rajasthan & Anr., ; In that case the Post Master General of Rajasthan abused and kicked a Clerk of the Head Post Office when a clerk of the Head Post Office of Jodhpur went to make some oral representations to the Post Master General.
The clerk filed a complaint against the Post Master General under Sec. 323 and 504 I.P.C. before the Additional Munsif Magistrate of Jodhpur city.
An application was filed praying that no cognizance of the offence would be taken without the sanction of the Government under Sec.
197 of Criminal Procedure Code.
It was held that the acts alleged were not done in due discharge of his official duty and so no prior sanction of the Government was necessary under Section 197 of the Code.
In Bhagwan Prasad Srivastava vs N.P. Misra, [1971] 1 S.C.R. 317, the respondent filed a complaint alleging that the appellant, a Civil Surgeon used defamatory and abusive words and got him pushed out by the cook of the hospital.
It was found that the case was not covered by Sec.
197 of the said Act as those acts were not done in discharge of his official duty.
In the case of Darshan Kumar vs Sushil Kumar Malhotra & Ors., , it was found that the acts complained of against Respondents Nos.
1,3 and 4 were purported to have been done by them in discharge of their official duties and it was reasonably connected with their official duties.
As such it was held that prior sanction of the State Government was necessary in prosecuting them in respect of the offence, if any, made out from the commission of such acts.
817 As regards scope and ambit of Sec.
197(3) of the Code of Criminal Procedure it has been rightly observed by the Division Bench of the Gujarat High Court in Bhikhaji Vaghji vs L.K Barot and Ors. , that after the issuance of the notification by the Government under Sec.
197(3) of the Criminal Procedure Code directing that the provisions of Sub Sec.(2) of Sec. 197 shall apply to the Police Officers charged with the maintenance of public order, the same could not be questioned on the ground of non application of mind as it is within the scope and ambit of Sub Sec.
(3) of Sec. 197 of the Code.
It was also observed that : "Before the protection of sub sec.(2) of Section 197 of the Code could be had and the proceedings are dropped on that count, the learned Magistrate is under an obligation to decide that the alleged acts attributed to the members of the police force are acts done in the discharge of their official duties, or at any rate, they purport to be, or bear the colour or semblance of, the acts that could be done in the discharge of their official duties.
" We have already said that the alleged acts of tampering the Search Memo while the same was in custody of the Court cannot be deemed to be an act purported to have been done by these two appellants in discharge of their official duties.
Therefore, the previous sanction of the Lt. Governor as provided in Section 197(3) Criminal Procedure Code was, in our considered opinion, not at all necessary for initiating the proceedings against these two appellants, who are members of the Delhi Police Force.
For the reasons stated hereinbefore the Appeal filed by the Delhi Administration succeeds and is allowed and the Appeal filed by the accused is dismissed.
The Judgment and Order of the High Court declaring the impugned notification dated 7th April, 1980 issued by the Lt. Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law.
We are thankful to Sri Anil Kumar Gupta for the assistance he has rendered as Amicus Curiae.
M.L.A. Criminal Appeal 844/85 dismissed.
Criminal Appeal 845/85 partly allowed.
|
A Complaint was filed by the Special Railway Magistrate against the appellants, Balbir Singh and Ram Shankar, members of Delhi Police Force, alleging that the Search Memos which were signed by the sub Inspector Balbir Singh did not bear any signature of the witness Ram Shankar at the time when the said Search memos were in the custody of the Court and that they were interpolated subsequently by getting the same signed by the accused, Ram Shankar.
The appellants contended before the Trial Court that the aforesaid complaint was not maintainable since prior sanction as required by section 197(3) Cr.
P.C. was not obtained by the complainant to prosecute them.
The trial court rejected the contention and the High Court confirmed the same in appeal by the appellants.
The High Court, however, held that the Notification No. F.10/77/78 HP II dated 7th April 1980 issued by the Lt. Governor directing that the provisions of sub s.(2) of section 197 "shall apply to serving police officials of all ranks of Delhi Police Force" charged with the maintenance of public order, was bad in law as the Lt. Governor had no authority to issue the said Notification under sub s.(3) of section 197 Cr.
Allowing Criminal Appeal No. 845/85 partly and dismissing the other appeal, ^ HELD: 1(i) The Judgment and order of the High Court declaring the impugned notification dated 7th April 1980 issued by the Lt. Governor of Delhi to be ultra vires is set aside and the learned Magistrate is directed to proceed with the case in accordance with law.
[817 F] (ii) By virtue of the Notification No. S.O.183(E) dated 20th March 1974, the President empowered the Administrator of Union Territories, i.e. Lt. Governor of Delhi to exercise the 813 powers and functions of the State Government as provided in the Code of Criminal Procedure except the powers and functions provided in sections 8 and 477 of the said Act.
The Notification dated 7th April 1980 issued by the Lt. Governor was made in exercise of powers conferred upon him under sub section (3) of Sec. 197 of the Code of Criminal Procedure read with the Government of India Notification dated March 20, 1974 mentioned before.
Therefore, the Notification is not ultra vires the Constitution.
[815 D E] 2.
Reading the two notifications together, it is crystal clear that to start a proceeding against the member of all ranks of Delhi Police Officials in a Criminal Court, previous sanction of the Lt. Governor is imperative, provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty.
[815 F] In the instant case, the previous sanction of the Lt. Governor as provided in Section 197 (3) Criminal Procedure Code was, not at all necessary for initiating the proceedings against the two appellants, since the act of tampering of the Search Memos by them cannot be said to have been done in discharge of their official duties inasmuch as the said Search Memos were in the custody of the Court.
[817 E F] Matajog Dobey vs H.C. Bhari, ; ; Pukhraj vs State of Rajasthan & Anr., ; ; Bhagwan prasad Srivastava vs N.P.Misra, [1971] 1 S.C.R. 317 and Darshan Kumar vs Sushil Malhotra & Ors. 1980 Crl.
L.J. 154 relied upon.
Bhikhaji Vaghaji vs L.K. Barot and Ors., 1982 Cr.
L.J. 2014 approved.
|
Appeal Nos. 429 and 430 of 1966 Appeals by special leave from the judgments and orders dated January 22, 1964 of the Calcutta High Court in Appeals Nos. 199 and 200 of 1962 from Original Order.
B.Sen and section P. Nayar, for the appellants (in both the appeals).
A.N. Sinha and D. N. Gupta, for respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment and decree of the High Court of Calcutta refusing to enter satisfaction of two decrees under O. 21 r. 2 of the Code of Civil Procedure obtained by the respondents against the Union of India in the following circumstances.
The respondents M/s Soorajmull Nagarmull imported spindle oil from Philadelphia.
The firm was required to pay Customs Duty under Item 27(3) of the First Schedule to the Tariff Act, 1934 at 27% ad valorem.
The firm filed two suits asking for refund of excess duty claiming that the oil was dutiable only under Item 27(8) at /2/6 per imperial gallon.
The suits were filed against the Collector of Customs, the Assistant Collector of Customs for Appraisement and the Union of India.
The suits were successful and decrees were passed against the Union of India for refund of the amount charged in excess.
In one suit the decree was for payment of Rs. 43,723/ with interest at 6% per annum from 1st day of April, 1952 until realisation.
In the second suit the decree was for Rs. 75,925/ with similar interest.
Since the firm had not paid a sum of Rs. 18,08,667.72 as tax the Income Tax Officer, Circle 11, Calcutta issued a notice under section 46(5a) of the Indian Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him and stating that his receipt would constitute a good and sufficient discharge of the liability for refund to the firm.
The Collector of Customs paid the amount into the Reserve Bank and the Reserve Bank issued receipts crediting the amount against Super 125 tax due from the firm.
The Collector of Customs then applied to the High Court of Calcutta under 0.
21 r. 2 of the Code of Civil Procedure for the adjustment of the decrees by this payment.
This was refused by a learned single Judge who gave no reasons while dismissing the petition.
On appeal to the Division Bench it was held by the Division Bench on January 22, 1964 that the adjustment of the decrees could not be granted.
It is against the last order that the present appeals have been filed by ,special leave of this Court.
The High Court in reaching the conclusion observed that the decrees were against the Union of India and not the Collector of Customs.
Further the sums were held by the Collector of Customs on behalf of the Union of India and not on behalf of the firm.
The High Court found the notice to be defective inasmuch as it asked for payment towards Income tax and towards penalty, while in the receipts which were granted to the firm, stated that the amount was for Super tax.
On these three grounds, the High Court held that the learned single Judge was right in dismissing the application of the Collector of Customs for the adjustment of the decrees.
Order 2 1, r. 2 of the Code of Civil Procedure takes note of payments out of court to decree holders and provides that where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
It is also provided that the judgment debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree holder to show cause why such payment or adjustment should not be recorded as certified.
The contention of the respondents in these appeals is that the decrees were not passed against the Collector of Customs but against the Union of India and that payment by the, Collector of Customs was not a payment by the judgment debtor.
In our judgment this plea is highly technical.
The amount was recoved by the Collector of Customs from the firm and was being held by the Union of India through the Collector of Customs.
The Collector of Customs paid the money not on behalf of himself but on behalf of the Union of India and it must be treated as a proper payment of the amount to the firm.
The objection of the respondent that it amounts to a payment by one Department of the Government to another does not, in our opinion, hold much substance.
It is also extremely technical.
The Union of India 126 operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered this money and held it from the firm.
It is next contended that the notice is defective inasmuch as it shows that the money was lying with the Collector of Customs whereas it was, in fact, lying with the Union of India and that it was not money held by the Collector of Customs on behalf of the firm.
Section 46(5A) of the Income tax Act reads as follows : "46.
Mode and time of recovery.
(5A) The Income tax Officer may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the asessee at his last address known to the Income tax Officer) require any person from whom money is due or may become due to the assessee or any person who holds or may subsequently hold money for or on account of the assessee to pay to the Income tax Officer, either forthwith upon the money becoming due or being held or at or within the time specified in the notice (riot being before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the tax payer in respect of arrears of income tax and penalty or the whole of the money when it is equall to or less than that amount.
Any person making any payment in compliance with a notice under this I sub section shall be deemed to have made the payment under the authority of the assessee and the receipt of the income tax Officer shall constitute a good and sufficient discharge of the liability of such person to the assessee to the extent of the amount referred to in the receipt.
Any person discharging any liability to the assessee after receipt of the notice referred to in this sub section shall be personally liable to the Income tax Officer to the extent of the liability discharged or to the extent of the liability of the assessee for tax and penalties, whichever is less.
127 If the person to whom a notice under this sub section is sent fails to make payment in pursuance thereof to the Income tax Officer, further proceedings may be taken by and before the Collector on the footing that the Income tax Officer 's notice has the same effect as an attachment by the Collector in exercise of his powers under the proviso to sub section (2) of section 46.
Such notices of the Income tax Officer are no more than a kind of a garnishee order issued to the person holding money which money is due to an assessee.
The Collector of Customs had recovered this money and under the decrees of the Court the Union of India was liable to refund it to the firm.
A garnishee order is issued to a debtor not to pay to his own creditor but to some third party who has obtained a final judgment against the creditor.
By a parity of reasoning this amount, which was with the Collector of Customs, could be asked to be deposited with the Income tax Authorities under section 46(5A).
The argument is extremely technical for that the firm is entitled to get a double benefit of the decree, first by having the decretal amount paid to the benefit of the firm and then to recover it again from the Union of India.
It is contended lastly that the notice of the Income tax Officer spoke of Income tax and/or penalty whereas the amount was taken towards payment of Super tax due from the firm It is, however, conceded in the face of authorities cited at the Bar that the Super tax is also a kind of Income tax and, therefore, the notice could issue in the form it did.
The leading case on the subject is In re Beckitt(1) and learned counsel for the respondents did not controvert the proposition laid down there.
It is, however argued on the authority of Bidhoo Beebee vs Keshub Chunder Baboo and Ors., (2) Mahiganj Loan Office, Ltd. vs Behari Lal Chaki,(3) A. P. Bagchi vs Mrs. F. Morgan(4 ) and Thomas Skinder vs Ram Rachpal(5), that the payment which can be adjusted under O. 21, r. 2 is a voluntary payment by the judgment debtor to the decree holder and that this iS not a case of voluntary payment, at, all.
The rulings which have 'been cited do not, in our opinion, apply here.
This point was not considered in the High Court and seems to have been thought of here.
Order 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment.
A garnishee order can never by its nature (1) ; (2) (3) 1.
L. R. (4) A. 1.
R. 1935 All. 513.
(5) 1.
L. R. 1938 All.
128 lead to a voluntary payment and it is not to be thought that a garnishee, order does not lead to the adjustment of the decree sufficient for being certified by the Court.
Payment by virtue of section 46(5A), as we have stated before, is in the nature of a garnishee payment and must, therefore, be subject to the same rule.
The rulings themselves do not control the present matter.
In the payment was not under a garnishee order but under the process of the court issued in execution by arrest of the judgment debtor.
Contrasting what had happened in the case with the words of the second rule of 0. 21 (then section 206 of the Code of 1859) the learned Judges observed that section 206 covers cases of voluntary payment.
The debtor was protected by treating the payment as being made through the court.
The exact point we are dealing with was not before the Court.
In I.L.R. there was a scheme framed by the depositors of a banking Company for return of their deposits in spite of opposition from decree holders depositor of the Company.
The scheme was sanctioned by the Court.
The scheme was binding on the decree holder but it was not treated as an adjustment within O. 21, r. 2 of the Code of Civil Procedure.
The reason given was that the adjustment must be to the satisfaction of the decree holder and must be with the consent of both the decree holder and the judgment debtor and not one which is made binding by operation of law.
It is to be noticed that that was a payment to which the judgment debtor had objected although it was binding on him.
We see no reason for making a distinction between a voluntary payment out of court and a payment out of court which the law regards as valid.
No reasons are given in the judgment why such a distinction should be made.
In I.L.R. [1938] An. 294 the payment was made in court and not outside court.
This ' is the nearest case to the present one and but for this difference, it is reasonable to think that the learned Judges would have taken the same view of the matter as we have taken.
The reason given by the learned judges brings out the real object of the rule : "where a judgment debtor makes payment outside the Court, the Court knows nothing about the payment ' and therefore r. 2, 0.
21 ordains that the parties should inform the Court about the payment.
" This object in our opinion is fully achieved when there is payment under a garnishee order outside the Court.
In the case cited the Court knew of the payment and could give protection in other ways.
In A.I.R. 1935 All.
513 the payment was again without the consent of the Judgment debtor either in fact or in law.
Too much emphasis appears to have been placed upon mutual understanding and too little on payment out of court which is the essence 129 of the rule.
The case turned on whether there was any understanding and too little on payment out of court which is the essence debtor on repairs would be set off against the decretal amount and therefore O. 21, r. 2 of the Code of Civil Procedure was held inapplicable.
In none of the cases the point of a garnishee order was considered.
In our opinion, a case of a garnishee payment or one made under section 46(5A) of the Income tax Act of 1922 stands on a different footing and if the payment has been legally made out of Court in full and final discharge of the liability under a decree, there is no reason why the judgment debtor cannot move the Court for getting the adjustment or payment certified, The payment was required to be certified under O. 21, r. 2 of the Code of Civil Procedure and we order that it be so certified.
The appeals are accordingly allowed with costs here and in the High Court.
R.K.P.S. Appeals allowed.
|
The respondent filed suits against the Collector of Customs and the Union of India claiming refund of excess customs duty levied on spindle oil imported into India.
The trial court granted decrees against the Union of India for the amounts charged in excess.
As the respondent had large outstandings of tax, the Income Tax Officer issued a notice under section 46(5A) of the Income Tax Act, 1922 calling upon the Collector of Customs to pay the amount of the decree to him.
The Collector paid the amount into the Reserve Bank, who issued receipts crediting the amount against super tax due from the respondent.
He then applied to the High Court under O. 21 r. 2 C.P.C. for the adjustment of the decree by this amount.
This was refused by a single Judge as well as in appeal by a division bench.
It was held that the decrees were against the Union of India and not the Collector of Customs and that payment by the Collector was not a payment by the judgment debtor.
Furthermore the amounts were held by the Collector on behalf of the Union of India and not on behalf of the Firm.
The High Court also found the notice to be defective inasmuch as it asked for payment towards income tax and penalty, while the receipts which were granted to the Firm stated that the amount paid was against super tax due.
On appeal to this Court, HELD : The Union of India operates through different Departments and a notice to the Collector of Customs in the circumstances was a proper notice to issue because it was the Collector of Customs who had in the first instance recovered the amount and held it from the respondent.
Collector paid the amount on behalf of the Union of India.
[126 A] A notice under section 46(5A) is no more than a kind of garnishee order issued to the person holding money and the money is due to an assessee.
The amount which was held.
by the Collector of Customs could properly be asked to be deposited with the income tax authorities under section 46(5A).
[127 B D] Super tax is also a kind of income tax and therefore, the notice could issue in the form it did.
There was no force in the contention that the amount, which could be adjusted under O. 21, r. 2, is a voluntary payment by the judgment debtor to the decree holder and the present case was not one of voluntary payment at all.
Order No. 21, r. 2 merely contemplates payment out of court and says nothing about voluntary payment.
A garnishee order can never by its nature lead to a voluntary payment and it is not to be thought that a garnishee order does not lead to the adjustment of the decree 124 sufficient for being certified by the Court.
Payment by virtue of section 46(5A) is in the nature of a garnishee payment and must, therefore, be subject to the same rule.
[127 G 128 B] In re Beckitt, [1933].T.R. 1, Bidhoo Beebee vs Keshub Chunder Baboo & Ors. , Mahiganj Loan Office Ltd. vs Behari Lal Chaki, I.L.R. , A. P. Bagchi vs Mrs. F. Morgan A.I.R. 1935, AU 513, Thomas Skinner vs Ram Rachpal I.L.R. [1938] All 294, distinguished.
|
il Appeal No. 1870 of 1968.
(From the Judgment and Decree dated 6 3 1967 of the Bombay High Court (Nagpur Bench) in Appeal No. 101/59.) I. N. Shroff and H.S. Parihar, for the appellant.
S.B. Wad and M.N. Shroff, for respondent No. 1.
556 A. section Bobde, G.L. Sanghi, V.K. Sanghi, Miss Rama Gupta and M.S. Gupta, for respondent No. 2.
The Judgment of the Court was delivered by C.J.
This appeal is by certificate from the judgment dated 6 March, 1967 of the High Court of Bombay.
The appellant is the State of Madhya Pradesh.
The first respondent is the State of Maharashtra.
The second respondent is the plaintiff decree holder.
They will be referred to, for short, as Madhya Pradesh, Maharashtra and the plaintiff.
, The trial court passed a decree in favour of the plain tiff.
It was declared that the order dated 9 January, 1954 of the suspension of the plaintiff as well as the.
order of removal of the plaintiff from service passed on 2 February 1956 is illegal, void and inoperative.
The further declara tion was that the: plaintiff shall be deemed to be continu ing in service from 16 September, 1943.
A sum of Rs. 64, 588 2 0 was decreed in favour of the plaintiff and Bombay the predecessor of Maharashtra was ordered to.
pay the same with interest.
Both Madhya Pradesh and Maharashtra were ordered to pay costs to the plaintiff.
Maharashtra preferred an appeal against the decree.
Madhya Pradesh preferred objections against the order of costs.
The High Court confirmed the decree and the declara tions.
The High Court however modified the decree and held Madhya Pradesh liable.
The claim of the plaintiff against Maharashtra was dismissed.
The plaintiff was appointed Assistant Medical Officer in 1938.
In 1939 he was appointed officiating Assistant Surgeon.
He was posted at Elichpur (now Achalpur).
In 1942 he was transferred to Hoshangabad.
In 1943 he ap plied for medical leave for four months.
The Civil Surgeon recommended leave for six weeks.
The plaintiff again ap plied for leave in the month of August, 1943.
The leave was sanctioned by the Civil Surgeon.
The plaintiff then requested the Civil Surgeon in anticipation of sanction of leave by the Government for relief because he was not keep ing good health.
The Civil Surgeon then reported to the Government that the plaintiff absented himself from duty from 10 August, 1943 without leave.
The Government sanc tioned leave for six weeks.
On 28 September, 1943 the plaintiff was suspended by an order with effect from 16 September, 1943.
The plaintiff was served with a notice dated 30 September, 1943 to show cause why he: should not be dismissed from service.
Four charges Were levelled against the plaintiff.
First, that he refused to come to duty at the time of epi demic in August, 1943; Second, that he left his station without permission.
Third, that he refused to attend the Departmental enquiry when ordered to do so.
Fourth, that he wilfully and deliberately acted in total disregard of orders and absented himself from duty though he was declared to be fit to.
resume duty.
557 The Enquiry Officer by report dated 22 February, 1945 gave his findings that the first charge was not proved; that the second charge was proved but mitigated and the third and the fourth charges were technically proved.
On 21 June, 1945 the plaintiff was asked to show cause why he.
should not be dismissed or reduced in rank.
On 18 August, 1945 the Government of Central Provinces and Berar intimated to the plaintiff that the Government accepted the report of the Enquiry Officer and proposed to remove the plaintiff from service with effect from the date of the passing of the final order.
By order dated 7 November, 1945 the Provincial Government passed an order removing the plaintiff from service with effect from that date.
On 10 May, 1945 the plaintiff filed an appeal to the Governor but it was dismissed.
On 6 January, 1949 the plaintiff filed a suit in the court of the Second Additional District Judge, Nagpur.
By judgment dated 31 August, 1953 the District Judge held that the suspension order and the order of dismissal were illegal and declared the plaintiff to.
be deemed to.
continue in service.
The plaintiff was thereafter reinstated in service aS Assistant Surgeon on 12 December, 1953.
He was posted at Rays Hospital, Nagpur on 15 September, 1953.
On 13 January, 1954 the plaintiff was again suspended from service under order dated 9 January, 1954.
The plain tiff handed over charge on 13 January, 1954.
On 1 February 1954 the plaintiff was served with a notice dated 29 Janu ary, 1954 to show cause why he should not be removed from service.
The former report of the Enquiry Officer dated 22 February, 1945 was also given to the plaintiff.
On 2 February, 1956 the plaintiff was removed from service.
He appealed to the Governor.
The appeal was dismissed.
On 6 October, 1956 the plaintiff filed this suit in the court of the Joint Civil Judge, Nagpur against Madhya Pra desh and Maharashtra.
The plaintiff asked for a declaration that the order dated 9 January, 1954 suspending the plain tiff as well as the order dated 2 February, 1956 is illegal.
The plaintiff asked for a declaration that he is deemed to continue in service.
He claimed recovery of Rs. 64,588 2 0 as arrears of salary.
The plaintiff in his suit alleged that both Maharashtra and Madhya Pradesh are "liable to make good the plaintiff 's claim the liability for which is not exclusive but joint and several".
The alternative case.
of the plaintiff in the suit was that "if it will be held that the State of Maha rashtra and not the State of Madhya Pradesh is liable or viceversa the plaintiff will claim the decree ' against such State as would be liable".
The Civil Judge passed the.
decree on 25 April 1959 ' declaring: the order dated 9 January, 1954 suspending the plaintiff as well as the order dated 2 February, 1956 remov ing the plaintiff from service as illegal, void and inopera tive.
The decree further stated that the 558 plaintiff was deemed to continue in service from 16 Septem ber, 1943.
The Civil Judge passed a decree against the State of Bombay with the direction to pay Rs. 64,588 2 0 with 'interest at 6 per cent.
Both Maharashtra and Madhya Pradesh went up in appeal.
The Division Bench of the Bombay High Court placed the matter before a larger Bench and referred these two ques tions for the decision of the Larger Bench.
(1) Whether in the events that have happened which of these two States of Maharashtra and Madhya Pradesh can be compelled to take the plaintiff in service.
(2) Whether both or only one of the two States can be made liable for the payment of ar rears of salary of the plaintiff, if so, which State is liable.
The larger Bench of the Bombay High Court said that the State of Madhya Pradesh is constituted after the States Reorganisation Act referred to as the Act came into.
force on 1 November, 1956 is the principal successor State of the former State of Madhya Pradesh.
The High Court further said that the State of Maharashtra is the successor State of the former Madhya Pradesh inasmuch as certain territo ries, namely, Vidharbha which formed part of the former St. ate of Madhya Pradesh became: a part of the new State of Maharashtra.
The High Court then referred to.
clause (B) of section 88 of the Act and said that Maharashtra would be liable for the claim of the plaintiff only if the cause of action has arisen in its entirety within the territories which formed part of Maharashtra, otherwise initial liabil ity for the plaintiff 's claim will be on the principal successor State Madhya Pradesh under section 88(c) of the Act.
The larger Bench therefore referred the matter to the Division Bench to consider the question whether the cause of action for the plaintiff 's claim arose in its entirety within the territories which formed part of the Maharashtra.
The High Court held that under section 88(c) of the Act Madhya Pradesh is responsible for the claim of the plain tiff.
The High Court further held that the plaintiff was appointed under conditions of service Prescribed for him and accepted by him, and, therefore, the plaintiffs claim for arrears of salary would be governed by section 87 of the Act and not by section 88 of the Act.
The High Court said that the plaintiffs claim for arrears of salary and allowance was based on contract, either express or implied, on the basis of the terms.
of appointment and the conditions of service prescribed by the Government and accepted by the plaintiff.
The High Court also said that at the time of the plaintiff 's appointment in 1939 the plaintiff 's services were available for the then entire Province of Central Provinces and Berar and not only for those districts which formed part of Madhya Pradesh.
Therefore, the High Court said that section 87(b) of the Act would not apply.
Under the residuary clause of section 87(c) of the Act Madhya Pradesh would be liable as the principal successor State because the purpose of the contract were as from the appointed day not exclusively purposes of any of the two successor States.
Madhya Pradesh raised three contentions.
First, the plaintiff did not claim salary and allowances for the period subsequent to 15 September, 1943 in the.
suit filed by the. plaintiff in 1949 and was 559 therefore by reason of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure precluded from claim ing the salary and allowances for the period of 16 Septem ber, 1943 to 31 August, 1953 in the second suit which was filed on 6 October, 1956.
Second, the plaintiff 's claim in the second suit for salary and allowances prior to 6 October 1953 would be barred by the reason of Article 102 of the Limitation Act 1908.
Third, the liability, if any, would be under section 88(b) of the Act of Maharashtra which succeeded the State of Madhya Pradesh on 1 November, 1956 in so far as Nagpur District of the then existing State of Madhya Pradesh was concerned.
Reference was made to section 8(1) (c) of the Act for the purpose.
Further it is said by the appellant that on or after 1 November, 1956 the plain tiff could continue the suit only against the State of Bombay later known as State of Maharashtra and not against the State of Madhya Pradesh as constituted on or after 1 November, 1956.
Maharashtra contended that the liability was of Madhya Pradesh because of the provisions contained in section 88(c) of the Act.
It was said on behalf of Maharashtra that the plaintiff had been appointed to service in Central Prov inces and Berar which became the principal successor State of Madhya Pradesh.
The order of removal was also by the existing State which became the principal successor State of Madhya Pradesh.
In order to appreciate the rival contentions reference is necessary to two sections of the Act.
Section 87 speaks of liability in the case of contracts. 'Broadly stated, the provisions of section 87 of the Act are that where before the appointed day "1 November 1956" an existing State has made any contract in the exercise of 'its executive power for any purposes of the State, that contract shah be deemed to have been made in the exercise of the executive power (a) if there be only one successor States of the State; and (b) if there be two or more successor States and the purposes of the contract are,as from the appointed day, exclusively purposes of any one of them of that State; and (c) if there be two or more successor States and the purposes of the contract are,contract are, as from that day, not exclusively purposes of any one of them. of the principal successor State: and all rights and liabilities which have accrued or may accrue, under any such contract shall, to the extent to which they would have been rights or liabilities of the existing State be rights or liabilities of the successor State or the principal succes sor State.
The proviso to section 87 of the Act is that where the liability attaches under clause (c) the initial allocation of rights and liabilities made by this sub section shall be subject to such financial adjustment as may be agreed upon between all the successor States concerned, or in default of such agreement, as the central Government may by order direct.
Section 88 of the Act provides that where before the appointed day, an existing State is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall (a) if there be only one successor State, be a liability of that State; (b) if 560 there be two or more successor ' States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State, and (c) in any other case, be initially a liability of the principal successor State, but subject to such financial adjustment as may be agreed upon between 'all the successor States concerned, of in default of such agreement, as the Central Government may by order direct.
The claim for declaration that the order of suspension as welt as the order of dismissal was void is in respect of an actionable wrong other than breach of contract.
In order to.
determine as to which of the two States would be liable e under section 88 of the '.
1956 Act it has to be found out whether the cause of action arose wholly within the territories of one of the States or arose partly in the territories of one State and partly in the territo ries of the1 other.
The departmental enquiry which was alleged to be illegal was held at Hoshangabad which has all along been a part of the State of Madhya Pradesh only.
final orders which were challenged in the suit were passed at Nagpur which became part of the State of Bombay and later on known as Maharashtra.
The plaintiff 's cause of action comprises of every fact which is necessary to be proved.
The plaintiff based his claim with regard to de partmental enquiry which was held at Hoshangabad and also with regard to impugned order passed at Nagpur.
The appel lant State is the principal successor State of the former State of Madhya Pradesh.
Maharashtra was one of the succes sor States, like Madhya Pradesh.
Section 88(a) of the 1956 Act in the present case has no .application because it speaks of only one successor State.
Section 88(b) of the 1956 Act refers to the State.
where the cause of action wholly arose within the territories of either of the.
successor States.
In the present case, it cannot be said that the cause of action arose wholly within the successor State of Maharashtra.
Therefore, the residuary 'provision contained in section 88(c) of the 1956 Act applies and the liability is of the principal successor State, namely, Madhya Pradesh.
The High Court was right in arriving at the conclusion that Madhya Pradesh is liable.
The plaintiff 's suit in 1949 was only for setting aside the impugned orders.
The plaintiff did not ask for relief for arrears of salary for the obvious reason that the plain tiff in the 1949 suit asked fox ' setting aside of the im pugned orders and an order that the plaintiff was deemed to be continuing in service.
The plaintiff proceeded on the existing law as it stood by reason of the decision in High Commissioner for India vs 1.
M. Lall(1).
The Judicial Committee in that case held that a civil servant was not entitled to.
sue the State for recovering arrears of salary and pay.
Counsel for Madhya Pradesh relied on the decision in Province of Punjab vs Pandit Tara Chand (2) which held that a public servant had a right to bring a suit for ar rears .of pay.
The decision of the Judicial Committee in Lall 's case (supra) takes a contrary view to the decision of the Federal Court in Pandit (1) 75 I.A. 225.
(2) 561 Tara Chand 's case (supra).
It it true that the decision of the Federal Court in Pandit Tara Chand 's case (supra) was not brought to the notice of the Privy Council.
Under section 208 of the Government of India Act 1935 the law declared by the Judgment of the Privy Council had to be followed by all the Courts including the Federal Court.
Therefore, the earlier decision of the Federal Court though not expressly overruled by the Judicial Committee must be deemed to have overruled by implication by the decision of the Judicial Committee in Lall 's case (supra).
This Court in State of Bihar vs Abdul Majid(1) stated that a Government servant could ask for arrears of salary.
Counsel for Madhya Pradesh said that the decision of this Court in Abdul Majid 's case (supra) declared what the exist ing law has been, and, therefore, the plaintiff could not contend that it was not open to him to ask for arrears of salary in the 1949 suit.
It is in that background that Madhya Pradesh contends that the plaintiff not having asked for relief under Order 2 Rule 2 of the Code of Civil Proce dure would not be entitled to claim salary in the 1956 suit.
The contention of Madhya Pradesh cannot be accepted.
The plaintiff will be barred under Order 2 Rule 2 of the Code of Civil Procedure only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to.
sue for that relief.
It will not be correct to say that while the decision of the Judicial Committee in Lall 's case (supra) was holding the field the plaintiff could be said to know that he was yet entitled to make a claim for arrears of salary.
On the contrary, it will be correct to say that he knew that he was not entitled to make such a claim.
If at the date of the former suit the plain tiff is not aware of the right on which he insists in the latter suit the plaintiff cannot be said to be disentitled to the relief in the latter suit.
The reason is that at the date of the former suit the plaintiff is not aware of the right on which he insists in the subsequent suit.
A right which a litigant does not know that he possesses or a right which is not in existence at the time of the first suit can hardly be regarded as a "portion of his claim" within the meaning of Order 2 Rule 2 of the Code of Civil Procedure.
See Amant Bibi vs Imdad Husain(2).
The crux of the matter is presence or lack of awareness of the right at the time of first suit.
This Court in Om Prakash Gupta vs State of Uttar Pradesh(2) considered the prayer for refund of court fees on a claim which was abandoned.
The plaintiff in that case asked for a declaration that the order of dismissal was void and also asked for arrears of salary or in the alternative damages for wrongful dismissal.
In view of the decision in Lall 's case (supra) the plaint in that casewas amended by deleting the claim for arrears of salary and also for damages.
The plaintiff thereupon praved for refund of the court fees which had been paid on arrears of salary for damages.
Both the trial Court (1) (2) 15 I.A. 106, 112.
(3) ; 562 and the High Court rejected the claim for refund of court fees.
This Court also upheld the same view.
The reason given by this Court was that at the time the suit was insti tuted the law as it then stood permitted such a claim to be made.
The decision of the Privy Council made it clear that no such claim could be made.
The decision of the Privy Council clarifying the position was held by this Court not to be a ground for refund of court fee which was paid in accordance with law as it then stood.
The appellant Madhya Pradesh is, therefore, not right in contending that the plaintiff is barred by provisions con tained in Order 2 Rule 2 of the Code of Civil Procedure from asking for arrears of salary in the 1956 suit.
The plain tiff could not have asked for " arrears of salary on the law as it then stood.
The plaintiff did not know of or possess any such right.
The plaintiff, therefore, cannot be said to have omitted to sue for any right.
Another reason why the bar under Order 2 Rule 2 of the Code of Civil Procedure cannot operate is that the plain tiff 's cause of action in the 1956 suit is totally different from the cause of action in the 1949 suit.
See Pavana Reena Saminathan vs Palaniappa(1).
This Court in Jai Chand Sawhney vs Union of India (2) held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred.
The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in service throughout the period during which the order of dismissal remains operative.
Once an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad.
The same view has been taken by this Court in Sakal Dean Sahai Srivastava vs Union of India(3).
In that case the plaintiff filed a suit on 27 November, 1962 for a declara tion that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee.
Relying on the decision of this Court in Jai Chand Sawhney 's case and Sakal Deep 's case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years ' salary.
The present case is not one of setting aside an order of dismissal simpliciter.
When the plaintiff filed a suit in 1949 he could not ask for arrears of salary.
Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 12 December, 1953.
Three features are to be borne in mind in appreciating the plaintiff 's case from the point of view of limitation.
First the plaintiff became entitled to salary for the period 16 September, 1943 up to the date of rein statement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953.
Second, the plain tiff was (1) I.A. 142.
(2) (3) ; 563 again suspended on 19 January, 1954 and was dismissed on 23 February 1956.
The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary.
Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.
On these facts two consequences arise in the present appeal.
First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953.
Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53.
Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54.
Therefore, the plaintiff 's cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953.
The plaintiff 's salary accrued only when he was reinstated as a result of the decree setting aside the orders of sus pension and of dismissal.
The rulings of this Court in Jai Chand Sawhney 's case (supra) and Sakal Deep 's case (supra) do.
not apply to the present appeal because there was no aspect of any suspen sion order remaining operative until the fact of rein statement pursuant to the decree.
The plaintiff 's cause of action for arrears of salary is this.
When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plain tiff became entitled to salary which was suspended during the period of suspension.
_ The plaintiff was again suspend ed from 19 January, 1954 and he was dismissed from service on 23 February, 1956.
Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspen sion dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.
The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953.
Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiff 's claim for salary accrued due.
This salary was again suspended from 19 January, 1954.
Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension.
The order of suspension does not put an end to his service.
Suspension merely suspends the claim to salary.
During suspension there is suspension allowance.
See Khem Chand vs Union of 2 112 SCI/77 564 India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary.
Under Fundamental Rule 52 'the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date.
of his dismissal or remov al.
Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismiss al stand.
The High Court was correct in the conclusion that the plaintiff 's claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.
For the foregoing reasons the appeal is dismissed.
There will be costs only to the plaintiff respondent to be paid by the State of Madhya Pradesh.
M .R. Appeal dismissed.
|
Dismissing the appeal, the Court, HELD: (1) A litigant will be barred under Order 2 Rule 2 of the C.P.C. only when he omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue for that relief.
A right which he does not know that he possesses or a right which is not in existence at the time of the first suit is not a "portion of his claim" within the meaning of Order 2 Rule 2 of the C.P.C. The crux of the matter is presence or lack of awareness of the right at the time of first suit.
[561D E, 562 B] Amant Bibi vs Imdad Hussain 15 I.A. 106 at 112, applied.
Om Prakash Gupta vs State of Uttar Pradesh ; , distinguished.
High Commissioner for India vs I. M. Lall 75 I.A. 225; Province of Punjab vs Pandit Tara Chand ; State of Bihar vs Abdul Majid , referred to.
The bar under Order 2 Rule 2 of the C P.C. cannot oper ate when the litigant 's cause of action in an earlier suit is totally different from the cause.
of action in a later suit.
[562 C] Pawana Reena Saminathan vs Palaniappa 41 I.A.142, applied.
(2) During the period of suspension the plaintiff was not entitled to salary under Fundamental Rule 53.
The cause of action for his salary for such period did not accrue until he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal.
[563C D] Jai Chand Sawhney vs Union of India, and Sakal Dean Sahai Srivastava vs Union of India, ; , distinguished.
(3) Under Fundamental Rule 52 the pay and allowance of a Government servant who is dismissed or removed from service, cease from the date of his dismissal or removal.
Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand.
[564 B C] Khem Chand vs Union of India, [1963] Supp 1 S.C.R. 229, followed.
|
ivil Appeal No. 1351 of 1976.
From the Judgment and Order dated 24.11.
1975 of the Andhra Pradesh High Court in A.S. No. 691 of 1972.
T.V.S.N. Chari for the Appellant.
A. Subba Rao and A.D.N. Rao for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave arises against the Division Bench judgment dated November 24, 1975 in A.S. No. 691 of 1972 of the A.P. High Court fixing the market value @ Rs. I0 per square yard.
The facts lie in a short compass are stated thereunder.
By notification under section 4(1) of the Land Acquisition Act 1894 (in short 'the Act ') was published in the State Gazette on November 21, 1963 to acquire 5 acres 589 1/3 sq. yards in T.S. No. 981, Block No. 34 of Waitair Ward, Vishakapatnam for a housing scheme.
The Collector 475 awarded at Rs. 1.58 per sq. yard and on reference, the Civil Court enhanced the compensation to Rs. 10 per sq. yard with solatium at 15 per cent and interest at 4 per cent.
The respondent claimed @ Rs. 12 per sq. yard.
On appeal and cross appeals the High Court confirmed the award and dis missed the appeal as well as cross objections for enhance ment to Rs. 12 per sq. yard.
Two contentions have been raised by Shri Narsimahachari, the learned counsel for the appellant.
Under exhibit B. 6 dated August 3, 1961; under exhibit B 7 dated Sept. 5, 1961 and exhibit B 8, dated Sept. 8, 1961 the respondent purchased one acre 1936 sq.
yards in each docu ments in the same T.S. No. 981 @ 0.42 p. per sq. yard.
He sold on January 24, 1963 in an extent of one acre under exhibit B. 10 @ Rs.5 per sq. yard.
Therefore, ' the aforesaid sale deeds, exhibit B. 6, B. 7, B. 8 and B. 10 will reflect the prevailing market value of the land in question.
The Trial Court and the High Court committed grievous error in placing reliance on a decision of the High Court in A.S. No. 191 of 1967 dated November 11, 1970 awarding @ Rs. 10 per sq. yard in respect of 6,209 sq. yards in T.S. No. 1008, Block No. 39, Waitair Beach Road which was acquired under a notifica tion dated March 19, 1961 for the purpose of Caltex Oil Refinery.
The price fixed therein does not reflect the correct market value while the bona fide sale deed of pur chase and sale by the respondents relating to the acquired land are available on records and form correct basis.
The courts below committed grave error of law in completely excluding those sale transactions and relying upon that judgment.
We find force in the contention, though Shri Subba Rao, learned counsel for the respondent vehemently resisted, it.
It is settled law by catena of decisions that the market value postulated in section 23(1) of the Act designed to award just and fair compensation for the lands acquired.
The word "market value" would postulate price of the land prevailing on the date of the publication of the notification under section 4(1).
This Court repeatedly laid the acid test that in determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value.
For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price.
The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence.
In its absence the price paid for a land pos sessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notifica tion would supply the data to assess the market value.
It is not necessary to cite all the decisions suffice to state that in a recent judgment in Periya & Pareekanni Rubbers Ltd. vs State of Kerala, [1990] Supp. 1 SCR 476 362 a bench of this Court, to which one of us K.R.S., J., was a member surveyed all the relevant precedents touching the points.
In the light of the settled legal position let us consider whether the High Court and the Civil Court are justified in excluding the sale deeds completely and to place reliance on another judgment of the Division Bench of the High Court of A.P.
Admittedly, the claimant is a vendee in exhibit B. 6 to B. 8 @ 0.42 paise.
In a span of one year and four months, they sold @ Rs.5 per sq. yard; It is common knowledge that proposal for acquisition would be known to everyone in the neighbourhood, in particular, to the owners of the property and it is not uncommon that sale transac tions would be brought into existence before the publication of section 4(1) notification so as to form the basis to lay higher claim for compensation.
We do assume that exhibit B. 10 is a genuine and bona fide sale transaction.
In respect of one acre of the land in the self same land when sold at Rs.5 per sq. yard, would it fetch in a short period of nine months, double the market value, namely. @ Rs. 10 per sq. yard.
We have no doubt that it would not get that price for 5 acres and odd area.
It is undoubted that in respect of a notification of 1961 in which another T.S. number in the locality, namely, T.S. No. 1008, ultimately, the High Court awarded @ Rs. 10 per sq. yard.
Perhaps had there been no bona fide or genuine sale transaction relating to the self same land, the reliance placed on that judgment may be justified but exclusion of bona fide and genuine sale trans actions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal.
When the claimants themselves sold as a willing seller of an acre of land @ Rs.5 per sq.
yard large extent of five acres and odd under acquisition, if it is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate if not the same market value @ Rs.5 due to time lag of nine months.
No attempt was made by the respondent to explain under what circumstances they came to sell their lands @ Rs.5 per sq. yard when they expect higher value @ Rs. 10 per sq. yard.
May be the payment of Rs. 10 per sq. yard, be wind fall to the owner of the land in T.S. No. 1008 Taking the totality of the facts and circumstance, we hold that the High Court committed grave error to completely ignore the sale transac tions of the lands under acquisition.
In view of the time lag we have no hesitation to conclude that the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard.
It is next contended by Shri Narsimahachari that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, 477 drainage and other amenities.
The High Court committed manifest error in omitting to deduct 1/3 of the land.
Shri Subba Rao, the learned counsel for the respondent contended that the High Court had noted this contention of the appellant and considered that the market value of the land would be Rs. 12 per sq. yard and after giving the deduction of 1/3 it would come to Rs. 10.
The reasoning of the High Court is proper and warrants no interference.
In support thereof he placed reliance in Spl.
Tehsildar, Visha kapatnam vs Rednam Dharma Rao & Ors., C.A. No 4187 of 1982, dated July 17, 1990 wherein this Court had upheld the deduc tion of 1/5 from the market value towards developmental charges.
It is settled law that the High Court and the Reference court when made wrong application of a principle or important points effecting valuation has been over looked or misapplied, this Court would under article 136 correct the same, vide The Spl.
Land Acquisition Officer, Bangalore vs
T. Adinarayan Setty, [1959] Suppl.
1 S.C.R. 404; Dattatrayaya Shankarbhat Ambalgi and Ors.
vs The Collector of Sholapur and Anr., AiR 3 S.C.C. 431; The Dollar Co., Madras vs Collector of Madras, [1975] Supp.
SCC 403 and Padma Uppal Etc.
vs State of Punjab & Ors.
, ; In Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 2 13, this Court held that "in order to devel op that area at least the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities".
On this basis the value of the land at Rs.2,08,135.70 per acre would, after the deduction of 1/3 come to Rs. 1,38,757 per acre.
In Smt.
Kaushalya Devi Bogre & Ors.
vs The Land Acquisition Officer, Aurangabad; , this Court held that deduction of 1/3 was held to be reasonable.
In Vijay Kumar Motilal vs State of Maharashtra, 19 i/3rd was deducted towards developmental charges in undeveloped area.
In Vijaysingh Liladhar vs Special Land Acquisition Officer, the deduction of i/4th by the High Court which was not challenged in this court was upehld.
In Spl.
Land Acquisition Officer, Bangalore vs T. Adinarayan Setty, supra, deduction of 25 per cent was held to be reasonable.
It is to be noted that in building Regula tions, setting apart the lands for development of roads, drainage and other amenties like electricity etc.
are condi tion precedent to approve lay out for building colonies.
Therefore, based upon the situation of the land and the need for development the deduction shall be made.
Where acquired land is in the midst of already developed land with ameni ties of roads, drainage, electricity etc.
then deduction of 1/3 would not be justified.
In the 478 rural areas housing schemes relating to weaker sections deduction 1/4 may be justified.
On that basis, this court in R. Dharma Rao 's case upheld deduction of 1/5 because the owner while obtaining the lay out had already set apart lands for road and drainage.
Therefore, deduction of 1/3 would be reasonable.
In fact in The Tehsildar, Land Acquisi tion, Vishakapatnam vs
P. Narasing Rao & Ors., , a Division Bench of the High Court surveyed judgments of the High Court relating to housing schemes of Vishakapatnam upholding deduction of 1/3 to be reasonable.
Accordingly we hold that 1/3 of the market value should be deducted for development of the lands.
The High Court com mitted greivous error in giving a curious reasoning of valuing at Rs. 12 and upholding Rs. I0 to be the market value after deduction, though *.he market value was deter mined at Rs. 10.
Accordingly the appeal is allowed.
The market value is determined at Rs.6 per sq. yard and after deducting 1/3 the market value is Rs.4 per sq. yard.
The respondents are entitled to 15 per cent Solatium on market value and 4 per cent interest thereon from the date of dispossession.
But in the circumstances parties are directed to pay and receive their own costs.
N.P.V. Appeal al lowed.
|
The respondent 's land admeasuring 5 acres 589 1/3 Sq. yards was acquired by the State Government in 1963 for a housing scheme and compensation at Rs.1.58 per Sq. yard was awarded.
On reference, the Civil Court enhanced the compen sation to Rs. 10 per Sq. yard with solatium at 15 per cent and interest at 4 per cent.
On appeal and cross appeals, the High Court confirmed the award.
In the appeal before this Court, on behalf of the De partment, it was contended that the respondent had purchased the land in question in 1961 in three documents at Rs.0.42 p. per sq. yard and sold in 1963 one acre of the land at Rs.5 per sq. yard and, therefore, the deeds under which the transactions took place reflected the prevailing market value of the land in question, and courts below committed grave error in relying on a decision of the High Court awarding Rs. 10 per sq. yard in respect of another land acquired under a Notification of 1961, and that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, drainage and other amenities.
Allowing the appeal, this Court, HELD: 1.1 The market value postulated in Section 23(1) of the Land Acquisition Act, 1894 is designed to award just and fair compensation for the lands acquired.
The word "market value" would postulate price of the land prevailing on the date of the publication of the notifica 473 tion under Section 4(1).
In determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis.
For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price.
The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence.
In its absence the price paid for a land pos sessing similar advantages to the land in neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value.
[475E G] Periya & Pareekanni Rubbers Lief.
vs State of Kerala, [1990] Supp. 1 SCR 362, referred to. 1.2 In the instant case, admittedly, the claimant pur chased land at Rs.0.42 p. and in a span of one year and four months, sold at Rs.5 per sq yard.
When the claimants them selves sold as a willing seller of an acre of land @ Rs.5 per sq.
yard, if a large extent of five acres and odd under acquisition is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate, if not the same market value of Rs.5 due to time lag of nine months.
May be the payment of Rs. 10 per sq yard to the owner of another land acquired in 1961 was a windfall.
Taking the totality of the facts and circumstances, the High Court committed grave error in completely ignoring the sale transactions of the lands under acquisition.
In view of the time lag, the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard.
[476B, E G] 1.3 In Building Regulations, setting apart the lands for development of roads, drainage and other amenities like electricity etc.
are condition precedent to approve lay out for building colonies.
Therefore, based upon the situation of the land and the need for development, the deduction shall be made.
Where acquired land is in the midst of al ready developed land with amenities of roads, drainage, electricity etc.
then deduction of 1/3 would not be justi fied.
In the rural areas housing schemes relating to weaker sections, deduction of 1/4 may be justified.
[477G H, 478A] Spl.
Tehsildar, Vishakapatnam vs Rednam Dharma Rao & Ors., CA No. 4187 of 1982 decided on July 17, 1990; Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 213; Smt.
Kaushalya Devi Bogre & Ors.
vs The Land Acquisi tion Officer, Aurangabad; , ; Vijay Kumar Motilal vs State of Maharashtra, ; Vijay singh Liladhar vs Special Land Acquisition Officer, 760; Spl.
Land Acquisition Officer, Bangalore vs
T. Adinaray an Setty, [1959] Sppl.
1 SCR 404 and The Tehsildar, Land Acquisition, Vishakapatnarn
P. Narasing Rao & Ors., , relied on. 1.4 In the instant case, 1/3 of the market value should be deducted for development of the lands.
[478B] 1.5 The market value is determined at Rs.6 per sq. yard and after deducting 1/3 for development of lands, it would be Rs.4 per sq. yard.
[478C] 2.
It is settled law that when wrong application of a principle has been made or important points affecting valua tion have been overlooked or misapplied by the High Court or Reference Court, this Court would, under Article 136 of the Constitution, correct the same.
The Spl.
Land Acquisition Officer, Bangalore vs
T. Adina rayan Setty, [1959] Suppl.
1 SCR 404; Dattatrayaya Shankarb hat Ambalgi and Ors.
vs The Collector of Sholapur and Anr., ; The Dollar Co. Madras vs Collector of Madras, and Padma Uppal etc.
vs State of Punjab & Ors.
, ; , relied on.
|
vil Appeal No. 62 (N) of 1970 etc.
From the Judgment and Order dated 13.10.
1969 of the Madras High Court in W.A. No. 464 of 1967.
K. Parasaran, Attorney General, Dr. Y.S. Chitale, F.S. Nariman.
T.S. Krishnamurthy Iyer, A.K. Ganguli, B. Sen, L.N. Sinha, R.N. Sachthey, R.B. Datar, R.F. Nariman, K.J. John, H.N. Salve, Praveen Kumar, A.V. Rangam, T.Sridharan, K.D. Prasad, Mrs. Naresh Bakshi, K. Rajendra Choudhary, Ms. Seita Vaidialingam, V. Krishnamurthy, Ms. A. Subhashini, N. Net tar, G.S. Narayan, Badrinath Babu, Anip Sachthey and S.K. Agnihotri for the appearing parties.
The Judgment of the Court were delivered by SABYASACHI MUKHARJI, J.
The question involved in these appeals, special leave petitions and writ petitions is, whether levy of cess on royalty is within the competence of the State Legislature.
In order to appreciate the question, it is necessary to refer to certain facts.
Civil appeal No. 62/79 is an appeal by special leave from the judgment and order of the High Court of Madras, dated 13th October, 1969, in writ appeal No. 464/67.
The appellant is a public limited 698 company incorporated under the Indian Companies Act, 1913.
The Company at all relevant times, used to manufacture cement in its factory at Talaiyuthu in Tirunelveli district, and at Sankaridrug in Salem district of Tamil Nadu.
By G.O. Ms. No. 3668 dated 19th July, 1963, the Govt.
of Tamil Nadu sanctioned the grant to the appellant mining lease for limestone and kankar for a period of 20 years over an extent of 133.91 acres of land in the village of Chinnagoundanur in Sankaridrug Taluk of Salem district.
Out of the extent of 133.91 acres comprised in the mining lease, an extent of 126.14 acres was patta land and only the balance extent of 7.77 acres Govt.
The lease deed was in accordance with the Mineral Concession Rules, 1960.
The rates of royalty, dead rent and surface rent, were as follows: "Royalty: LIMESTONE Government Lands: Re.O.75 per tonne, but subject to a rebate of Re.O.38 per tonne to be given on Imestone beneficiated by froth flota tion method.
Patta Lands: Re.O.38 per tonne but subject to a rebate of Re.O. 19 per tonne to be given on limestone beneficiated by froth flotation method.
KANKAR Government Lands: Five per cent of the sale price at the pit 's mouth.
Patta Lands: 2 1/2% of the sale price at the pit 's mouth Dead rent: Government lands: Rs.25 (Rupees twentyfive only) per hectare per annum.
Patta lands: Rs. 12/50 (Rupees twelve & naya paise fifty only) per hectare per annum.
Surface rent and water rate: At such rate as the land revenue and cess assessable on the land are paid.
" The appellant started mining operations soon after the execution 699 of the lease deed and has ever since been paying the royal ties, dead rents and other amounts payable under the Deed.
Under section 115 of the Madras Panchayats Act (XXXV of 1958) (hereinafter called 'the Act '), as amended by Madras Act XVIII of 1964 (herein after called 'the amended Act '), as royalty the appellant was required to pay local cess @ 45 paise per rupee.
It may be mentioned that the said imposi tion was with retrospective effect along with local cess surcharge under section 116 of the Act.
The contention of the appellant is and was, at all relevant times, that cess on royalty cannot be levied.
This is the common question which falls for consideration and requires determination in these appeals and petitions.
To complete the narration of events, however, it has to be noted that the Collector sent a communication on 10th April, 1965, demanding cess or royalty payable under the Act on minerals carried on during the period 1.7.1961 to 31.12.1964, and the petitioner was threatened of serious consequences in case of default of payment on receipt of that communication.
Thereafter, writ petition No. 1864/65 was filed in the High Court of Madras.
By the judgment delivered and order passed on 23rd February, 1967.
a learned Single Judge of the Madras High Court Justice Kailasam dismissed the writ petition holding that the cess levied under section 115 of the act is a tax on land and, as such, falls under Entry 49 of the State List of the Schedule VII of the Constitution, and was within the competence of the State legislature.
Reliance was placed by the learned single Judge on the decision of this Court in H.R.S. Murthy vs Collector of Chittoor & Anr., ; He held that the cess levied under section 115 was a tax on land, though fixed with reference to the land revenue.
In regard to section 116 of the Act, the learned Single Judge held that the maximum limit had been prescribed by the Government by rules flamed under the Act, and, therefore, there was no arbitrariness about the levy.
Sub section 1 of section 115 of the Act enjoins that there shall be levied in every panchayat development block, a local cess at the rate of 45 paise on every rupee of land revenue payable to the Govt.
in respect of any land for every Fasli.
An Explanation to the said section was added and deemed always to have been incorporated by the Tamil Nadu Panchayats (Amendment and Miscellaneous Provisions) Act, 1964 being Tamil Nadu Act 18 of 1964, which provided as follows: "[Explanation.
In this section and in section 116, 'land revenue ' means public revenue due on land and includes 700 water cess payable to the Government for water supplied or used for the irrigation of land, royalty, lease amount or other sum payable to the Government in respect of land held direct from the Government on lease or licence, but does not include any other cess or the sur charge payable under section 116, provided that land revenue remitted shall not be deemed to be land revenue payable for the purpose of this section.]" Sub section 2 of section 115 of the Act provides that the local cess shall be deemed to be public revenue due on all the lands in respect of which a person is liable to pay local cess and all the said lands, the buildings upon the said lands and their products shall be regarded as the security for the local cess.
Sub section 3, 4 (a), (b), (c) and (d) of section 115 of the said Act deal with the application of the cess so collected for various purposes mentioned therein.
In the controversy before us, the said provisions need not be considered.
Section 116 of the Act is as follows: "116.
Every panchayat union council may levy on every person liable to pay land revenue to the Government in respect of any land in the panchayat union a local cess surcharge at such rate as may be considered suitable as an addition to the local cess levied in the panchayat development block under section 115 provided that the rate of local cess surcharge so levied (shall not exceed two rupees and fifty paise on every rupee of land revenue) payable in respect of such land.
" The words "shall not exceed two rupees & fifty paise on every rupee of land revenue" were substituted for the words "shall be subject to such maximum as may be prescribed" by section 3 of the Tamil Nadu Panchayats ' (2nd Amendment and Validation) Act, 1970, and these words were substituted for the words "shall not exceed one rupee and fifty paise on every rupee of land revenue" by section 2 of the Tamil Nadu Panchayats (Amendment) Act, 1972.
There was an appeal from the said decision of the learned Single Judge, to the division bench of the High Court.
The division bench by its judgment and order dated 13th October, 1969, dismissed the writ appeal, and held that local cess authorised by section 115 as aforesaid "was not land revenue but is a charge on the land itself and Section 115 701 merely quantified on the basis of the quantum of land reve nue".
The division bench held that the meaning of the Expla nation added to section 115 was that the cess is levied as a tax on land and is measured with reference to land revenue, royalty, lease amount etc.
as mentioned in the Explanation.
The division bench also relied on the decision of this Court in H.R.S. Murthy (supra), and further held that in the aforesaid view of the matter, it was not possible to accept the contention that section 115 of the Act read with the Explana tion contravened in any manner section 9 of the Mines and Miner als (Regulation and Development) Act, 1957.
By leave granted by this Court on 12th January, 1970 the appeal has been filed.
The appellant is bound to pay royalty to the Govt.
according to the rates provided in the Second Schedule to the said Act of 1957.
Clause (1) of Part VII of the lease document provides as follows: "The lessee/lessees shall pay the rent, water rate and royalties reserved by this lease at such times and in the manner provided in Part V and VI of these presents and shall also pay and discharge all taxes, rates, assessment and impositions whatsoever being in the nature of public demand which shall from time to time be charged, assessed or imposed by the authority of the Central and State Government upon or in respect of the premises and works of the lessee/lessees in common with other premises and work of a like nature except demands for land revenue.
" As mentioned hereinbefore, there is an obligation of the lessee to pay rent and other charges mentioned in the said Clause, and all other Central and State Government dues "except demands for land revenue".
The question, therefore, which arises is, is cess on royalty a demand of land revenue or additional royalty? For the appellants and/or petitioners we have heard Mr. Nariman,_ Dr. Chitale and Mr. Salve, and for the interven ers, S/Shri K.D. Prasad, Rajendra Choudhary and Ms. Seita Vaidialingam have made their submissions.
For the State of Tamil Nadu, Mr. Krishnamurthy Iyer and Mr. V. Krishnamurthy have made their submissions.
We have had the advantage of the submissions made by learned Attorney General on behalf of Union of India.
The issues are common in the writ peti tions as well as in the appeal and in the special leave petitions.
The question involved in the appeals and the writ petition is about the constitutional validity of Section 115(1) of the Act, in so far as it 702 sought to levy as local cess @ 45 naya paise on every rupee of the land revenue payable to the Government, the meaning of land revenue being artificially expanded by the explana tion so as to include royalty payable under the mining lease.
In this connection, it may be appropriate to refer to the Statement of Objects and Reasons for the amendment which stated, inter alia, as follows: "Under the Explanation to section 115 of the Act "land revenue" means public revenue due on land and includes water cess payable to the Government for water supplied or used for the irrigation of land but does not include any other cess or surcharge payable under section 116.
The Explanation does not cover "royal ties", lease amount or other sum payable to the Government in respect of land held direct from the Government on lease or licence which were included in the definition of "land revenue" under the Madras District Boards Act, 1920.
As under the Madras District Boards Act, 1920, certain panchayat union councils contin ued to levy the cess and surcharge under the Madras Panchayats Act, 1958 also.
It is con sidered that the levy should be on the same basis as under the Madras District Boards Act, 1920.
It is, therefore, proposed to include "royalty, lease amount and other sums payable to the Government" in the definition of land revenue in the Explanation to section 115 of the Act and also to validate the levy and collection of the cess and surcharge made hitherto on the said basis.
" It is obvious that the said amendment was intended to bring royalty within the Explanation and the definition of land revenue in section 115 as well as section 116 of the Act, and was effected by the Gazette Notification of 2nd Septem ber, 1964 by Act No. 18 of 1964.
In order to appreciate the controversy, it has no be understood that in this case royalty was payable by the appellant which was prescribed under the lease deed, the terms whereof have been noted hereinbefore.
The royalty had been fixed under the statutory rules and protected under those rules.
The royalty was fixed under the Mines and Minerals (Regulation & Development) Act, 1957 which is a Central Act by which the control of mines and minerals had been taken over by the Central Government.
It was an Act for the regulation of mines and development of minerals under the control of Union of India.
That 703 Act was to provide for the regulation of mines and the development of minerals under the control of the Union of India.
2 of the Act declares that it is expedient in the public interest that the Union of India should take under its control the regulation of mines and the develop ment of the minerals to the extent provided in the Act.
Section 9 of the Act provides as follows: "9.
(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2A) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Devel opment) Amendment Act, 1972, shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a col liery provided that such consumption by the workman does not exceed one third of a tonne per month.
(3) The Central Government may, by notifica tion in the Official Gazette.
amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years.
" The Act was passed by virtue of the power of the Parliament 704 under Entry 54 of list I of the 7th Schedule.
Since the control of mines and the development of minerals were taken over by Parliament, the question that arises here is whether the levy or the impost by the State Legislature imposed in this case can be justified or sustained either under entry 49, 50 or 45 of list II of the 7th Schedule.
Courts of law are enjoined to gather the meaning of the Constitution from the language used and although one should interpret the words of the Constitution on the same princi ples of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation.
It has to be remembered that it is a Consti tution that requires interpretation.
Constitution is the mechanism under which the laws are to be made and not merely an Act which declares what the law is to be.
See the obser vations of Justice Higgins in the Attorney General for the State of New South Wales vs The Brawery Employees Union of New South Wales, ; at 611 2.
In re: C.P. and Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938, [1939] FCR at p. 1, Chief Justice Gwyer of the Federal Court of India relied on the observations of Lord Wright in James vs Common wealth of Australia, and observed that a Constitution must not be con strued in any narrow or pedantic sense, and that construc tion most beneficial to the widest possible amplitude of its powers, must be adopted.
The learned Chief Justice empha sised that a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution, but they are not free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors.
A Federal Court will not strengthen, but only derogate from, its position, if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of a country is a living and organic thing, which of all instruments has the greatest claim to be con strued ut res magis valeat guam pereat. 'It is better that it should live than that it should perish '.
Certain rules have been evolved in this period, and it is wellsettled now that the various entries in the three lists are not powers but fields of legislation.
The power to legislate is given by article 246 and other articles of the Constitution.
See the observations of this Court in Calcutta Gas Co. vs State of West Bengal, [1962] Suppl 3 SCR 1.
The entries in the three lists of the Seventh Schedule to the Constitution, 705 are legislative heads or fields of legislation.
These demar cate the area over which appropriate legislature can oper ate.
It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other.
Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists.
See the observa tions of this Court in H.R. Banthia & Ors. etc.
vs Union of India & Ors.
, ; at 489 and Union of India vs Shri H.S. Dillon; , at 792.
The lists are designed to define and delimit the respective areas of respective competence of the Union and the States.
These neither impose any implied restriction on the legislative power conferred by Article 246 of the Constitution, nor prescribe any duty to exercise that legislative power in any particular manner.
Hence, the language of the entries should be given widest scope, D.C. Rataria vs Bhuwalka Brothers Ltd., ; , to find out which of the meaning is fairly capable because these set up machinery of the Govt.
Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it.
In interpreting an entry it would not be reasonable to import any limitation by comparing or con trasting that entry with any other one in the same List.
It is in this background that one has to examine the present controversy.
Here, we are concerned with cess on royalty.
One can have an idea as to what cess is, from the observations of Justice Hidayatullah, as the learned Chief Justice then was, in M/s Guruswamy & Co. etc.
vs State of Mysore & Ors., where at page 571, the learned Judge ob served: "The word 'cess ' is used in Ireland and_.
is still in use in India although the word rate has replaced it in England.
It means a tax and is generally used when the levy is for some special administrative expense which the name (health cess, education cess, road cess etc.) indicates.
When levied as an increment to an existing tax, the name matters not for the validity of the cess must be judged of in the same way as the validity of the tax to which it is an increment." The said observations were made in the dissenting judg ment, but there was no dissent on this aspect of the matter.
Relying on the aforesaid observations, Mr Nariman appearing for the appellant and 706 the petitioners suggested that the impugned levy in this case is nothing but a tax on royalty and is therefore ultra vires the State legislature.
Mr. Krishnamurthy Iyer appear ing for the State of Tamil Nadu submitted that the cess in question in the instant case is a levy in respect of land for every fasli.
He urged that the words "a local cess at the rate of 45 naya paise on every rupee of land revenue payable" qualify the words "land revenue".
These words were only intended, according to Mr. Krishnamurthy Iyer, to mean cess payable.
It is, however, not possible to accept this submission, in view of the obligation indicated by the language of the provisions.
Cess is not on land, but on royalty which is included in the definition of 'land reve nue '.
None of the three lists of the 7th Schedule of the Constitution permits or authorises a State to impose tax on royalty.
This levy has been sought to be justified under Entry 45 of List II of the 7th Schedule.
Entry 45 deals with land revenue, which is a well known concept and has existed in India before the Constitution came into force.
In N.R. Reddy & Ors.
vs State of A.P. & Ors., [1965] 2 Andhra Law Times 297, Jaganmohan Reddy, J. as the learned Judge then was of the Andhra Pradesh High Court, while sitting in a division bench observed that no land revenue Act existed in the composite State of Madras nor had the ryotwari system ever been established by legislative enactment.
The learned Judge at p. 306 of the report observed that in the earlier days, sovereigns had in exercise of their prerogative right claimed a share of the produce of all cultivated land known as 'Rajabhagam ' or by any of the various other names, and had fixed their share or its commuted money value from time to time, according to their will and pleasure.
The learned Judge noted that as long as the share of the sovereign was being paid, the sovereign had no right to the possession of the lands, and the proprietorship of these lands was vested in the occupier, who could not be removed because another offered more.
The right of the sovereign to a share in the produce as observed by the Govt.
of Madras in 1856 "is not rent which consists of all surplus produce after paying the cost of cultivation and the profits of agricultural stock but land revenue only which ought, if possible, to be so lightly assessed as to leave a surplus or rent to the occu pier, when he in fact lets the land to others or retains it in his own hands.
" It was noted that the amount of tax that was levied before the Mohamedan Rule, amounted to 1/8th, 1/6th or 1/12th according to Manu depending on the differ ences in the soil and the labour necessary to cultivate it, and it even went up to 1/4th part, in times of urgent neces sity, as of war or invasion.
The later commentators, Yajnav alkya, Apastamba, Gautama, Baudhayana and Narada, have all asserted not only the right but the extent of the share.
When the British came to India they followed not only the precedent 707 of the previous Mohamedan Rulers who also claimed enormous land revenue, with this difference that what the Mohamedan Rulers claimed they could never fully realise, but what the British Rulers claimed they realised with vigour.
It is not necessary to refer in detail how land revenue developed in India after the advent of the British Rule.
There was an appeal from the said decision of the High Court of Andhra Pradesh and this Court dismissed the appeal in State of A. P. vs N.R. Reddy & Ors., ; It is, however, clear that over a period of centuries, land revenue in India has acquired a connot active meaning of share in the produce of land to which the King or the Govt.
is entitled to receive.
It was contended on behalf of the appellants that the impugned measure being a tax, not on share of the produce of the land but on royalty; royalty being the return received from the produce of the land, revenue was payable for winning minerals from the land.
In the premises it was contended that it cannot be attributable to Entry 45 of List II of the 7th Schedule, being not a land revenue.
It has, however, to be borne in mind that Explana tion to Section 115(1) was added and there was an amendment as we have noted before.
That very Explanation makes a distinction between land revenue as such and royalty which by amendment is deemed to be land revenue.
It is, therefore, recognised by the very force of that Explanation and the amendment thereto that the expression 'royalty ' in sections 115 & 116 of the Act cannot mean land revenue properly called or conventionally known, which is separate and dis tinct from royalty.
It was also contended on behalf of the respondent State of Tamil Nadu of Mr. Krishnamurthy Iyer that it could also be justified under Entry 49 of List II of the 7th Schedule as taxes on lands and buildings.
This, however, cannot be accepted.
In this connection, reference may be made to the decision of this Court in Raja Jagannath Baksh Singh vs The State of U.P. & Anr., ; where at p. 229 it was indicated that the expression 'lands ' in Entry 49 is wide enough to include agricultural land as well as non agricultural land.
Gajendragadkar, J. as the learned Chief Justice then was, observed that the cardinal rule of inter preting the words used by the Constitution in conferring legislative power was that these must receive the most liberal construction and if they are words of wide amplitude the construction must accord with it.
If general word was used, it must be so construed so as to extend to all ancil lary or subsidiary matters that can reasonably be included in it.
So construed, there could not be any doubt that the word 'land ' in Entry 48, List II of the 7th Schedule 708 includes all land whether agricultural or non agricultural.
Hence, since the impugned Act imposed tax on land and build ing which was within the competence of the State Legislature and its validity was beyond challenge but the Court observed that as there was Entry 46 in List H which refers to taxes on agricultural income, it is clear that agricultural income is not included in Entry 49.
If the State Legislature pur ports to impose a tax on agricultural income it would not be referable to Entry 49.
Mr. Krishnamurthy Iyer relied on the said principle.
But in the instant case, royalty being that which is payable on the extraction from the land and cess being an additional charge on that royalty, cannot by the parity of the same reasoning, be considered to be a tax on land.
But since it was not a tax on land and there is no Entry like Entry 46 in the instant situation like the posi tion before this Court in the aforesaid decision, enabling the State to impose tax on royalty in the instant situation, the State was incompetent to impose such a tax.
There is a clear distinction between tax directly on land and tax on income arising from land.
The aforesaid decision confirmed the above position.
In New Manek Chand Spinning & Weaving Mills Co. Ltd. & Ors., vs Municipal Corpn.
of the City of Allahabad & Ors.
, ; at 696, this Court after referring to the several decisions observed that Entry 49 of list II of the 7th Schedule only permitted levy of tax on land and building.
It did not permit the levy of tax on machinery contents in or situated on the building even though the machinery was there for the use of the building for a particular purpose.
Rule 7(2) of the Bombay Municipal Corporation Rules was held to be accordingly ultra vires in that case.
In S.C. Nawn vs W.T.O., Calcutta & Ors., ; this Court had occasion to consider this and upheld the validity of the Wealth Tax Act, 1957 on the ground that it fell within Entry 86 of List I and not Entry 49 of List II.
Construing the said Entry, this Court observed that Entry 49 list II contemplated a levy on land as a unit and the levy must be directly imposed on land and must bear a definite relationship to it.
Entry 49 of list Il was held to be more general in nature than Entry 86, list I, which was held to be more specific in nature and it is well settled that in the event of conflict between Entry 86, list I and Entry 49 of list II, Entry 86 prevails as per Article 246 of the Constitution.
In Asstt.
Commissioner of Urban Land Tax & Ors.
vs The Buckingham & Carnatic Co. Ltd. etc.; , at 278, this Court reiterated the principles laid down in S.C. Nawn 's case (supra) and held that entry 49 of list II was confined to a tax that was directly on land as a unit.
In Second Gift Tax Officer, Mangalore etc.
vs D.H. Nazareth etc.
; , at 200 it was held that a tax on the gift 709 of land is not a tax imposed directly on land but only on a particular user, namely, the transfer of land by way of gift.
In Union of India vs H.S. Dhillon, (supra), this Court approved the principle laid down in S.C. Nawn 's case as well as Nazareth 's case (supra).
In Bhagwan Dass Jain vs Union of India, ; at 816 this Court made a distinction between the levy on income from house property which would be an income tax, and the levy on house property itself which would be referable to entry 49 list II.
It is, there fore, not possible to accept Mr. Krishnamurthy Iyer 's sub mission and that a cess on royalty cannot possibly be said to be a tax or an impost on land.
Mr. Nariman is right that royalty which is indirectly connected with land, cannot be said to be a tax directly on land as a unit.
In this connec tion, reference may be made to the differentiation made to the different types of taxes for instance, one being profes sional tax and entertainment tax.
In the Western India Theatres Ltd. vs The Cantonment Board, Poona Cantonment, ; at 69 it was held that an entertain ment tax is dependent upon whether there would or would not be a show in a cinema house.
If there is no show, there is no tax.
It cannot be a tax on profession or calling.
Profes sional tax does not depend on the exercise of one 's profes sion but only concerns itself with the right to practice.
It appears that in the instant case also no tax can be levied or is leviable under the impugned Act if no mining activi ties are carried on.
Hence, it is manifest that it is nor related to land as a unit which is the only method of valua tion of land under entry 49 of list II, but is relatable to minerals extracted.
Royalty is payable on a proportion of the minerals extracted.
It may be mentioned that the Act does not use dead rent as a basis on which land is to be valued.
Hence, there cannot be any doubt that the impugned legislation in its pith and substance is a tax on royalty and not a tax on land.
On behalf of the State of Tamil Nadu, learned counsel Mr. Krishnamurthy Iyer sought to urge that it can also be sustained under entry 50, list II.
Entry 50 of list II of the 7th Schedule deals with taxes on mineral rights subject to limitation imposed by Parliament relating to mineral development.
Entry 23 of List II deals with regulation of mines and mineral development subject to the provisions of list I with respect to regulation and development under the control of the Union and entry 54 in list I deals with regulation of mines and minerals under the control of Union declared by the Parliament by law to be expedient in public interest.
Even though minerals are part of the State List they are treated separately, and therefore the principle that the specific excluded the general, must be applied.
See the observations of Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd., [1963] 3 710 SCR 209 at 220, where it was held that land in entry 49 of list II cannot possibly include minerals.
In this connection, learned Attorney General appearing for the Union of India submitted before us that in order to sustain the levy, the power of the State Legislature has to be found within one or more of the entries of list II of the 7th Schedule.
The levy in question has to be either a tax or a fee or an impost.
If it is neither a tax nor a fee then it should be under one of the general entries under List II.
The expression 'land ' according to its legal significance has an indefinite extent both upward and downwards, the surface of the soil and would include not only the face of the earth but everything under it or over it.
See the obser vations in Anant Mills Co. Ltd. vs State of Gujarat & Ors., [19751 3 SCR 220 at 249.
The minerals which are under the earth, can in certain circumstances fall under the expres sion 'land ' but as tax on mineral rights is expressly cov ered by entry 50 of list II, if it is brought under the head taxes under entry 49 of list II, it would render entry 50 of list II redundant.
Learned Attorney General is right in contending that entries should not be so construed as to make any one entry redundant.
It was further argued that even in pith and substance the tax fell to entry 50 of list II, it would be controlled by a legislation under entry 54 of list I.
On the other hand, learned Attorney General submitted that if it be held to be a fee, then the source of power of the state legislature is under entry 66 read with entry 23 of list II.
Here also the extent to which regulation of mines and mineral development under the control of the Union is declared by Parliament by law to be expedient in the public interest, to the extent such legislation makes provi sions will denude the State Legislature of its power to override the provision under entry 50 of list II.
In view of the Parliamentary legislation under entry 54, list I and the declaration made under section 2 and provisions of section 9 of the Act, the State Legislature would be overridden to that extent.
section 2 declares that it is expedient in the public interest that Union should take under its control the regu lation of mines and the development of minerals to the extent provided therein.
In this connection, reference may be made to the decision of this Court in The Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors., ; See also the observations in State of Orissa vs M.A. TuIloch & Co., ; and Baijnath Kedia vs State of Bihar & Ors., ; at 111 115.
Our attention was drawn to the decision of the division bench 711 judgment of the High Court of Mysore in M/s. Laxminarayana, Mining Co., Bangalore vs Taluk Der.
Board.
, AIR There speaking for the court, one of us, Venkataramiah J of the Mysore High Court, as the learned Chief Justice then was, observed that a combined reading of entries 23 and 50 in list II and entry 54 of list I, establishes that as long as the Parliament does not make any law in exercise of its power under entry 54, the powers of the State Legisla ture in entries 23 & 50 would be exercisable by the State Legislature.
But when once the Parliament makes a declara tion by law that it is expedient in the public interest to make regulation of mines and minerals development under the control of the Union, to the extent to which such regulation and development is undertaken by the law made by the Parlia ment, the power of the State Legislature under entries 23 & 50 of List II are denuded.
There the court was concerned with the Mysore Village Panchayats & Local Boards Act, 1959.
Thus, it was held that it could not, therefore, be said that even after passing of the Central Act, the state legislature by enacting section 143 of the Act intended to confer power on the Taluk Board to levy tax on the mining activities carried on by the persons holding mineral concessions.
It followed that the levy of tax on mining by the Board as per the impugned notification was unauthorised and liable to be set aside.
At p. 306 of the said report, it was held that royal ty under section 9 of the Mines and Minerals Act was really a tax.
To the similar effects are the observations of the High Court of Patna in M. Lal & Ors.
vs The State of Bihar & Ors.
, AIR 1965 Patna 491 at 494.
Mr. Krishnamurthy Iyer, however, referred to the decision of this Court in H.R.S. Murthy 's case (supra).
There under the terms of a mining lease the lessee worked the mines and won iron ores in a tract of land in a village in Chittor district and bound himself to pay a dead rent if he used the leased land for the extraction of iron ore, to pay a royalty on iron ore if it were used for extraction of iron and in addition to pay a surface rent in respect of the surface area occupied or used.
In the said decision the legislative competence of sections 78 & 79 of the Madras District Boards Act was upheld by which land cess was made payable on the basis of royalty.
This Court proceeded on the basis that other cess related to land and would therefore be covered by entry 49 of list II.
It was held that land cess paid on royalty has a direct relation to the land and only a remote relation with mining.
This, with respect, seems to be not a correct approach.
It was further observed that it was not necessary to consider the meaning of the expression 'tax on mineral right ' follow ing under Entry 50 of List II in as much as according to this Court, Parliament has not made any tax on mineral rights.
This is not a correct basis.
712 In H.R.S. Murthy 's case (supra), at p. 676 of the re port, it was observed by this Court as follows: "When a question arises as to the precise head of legislative power under which a taxing statute has been passed, the subject for enquiry is what in truth and substance is the nature of the tax.
No doubt, in a sense, but in a very remote sense, it has relationship to mining as also to the mineral won from the mine under a contract by which royalty is payable on the quantity of mineral extracted.
But that, does not stamp it as a tax on either the extraction of the mineral or on the miner al right.
It is unnecessary for the purpose of this case to examine the question as to what exactly is a tax on mineral rights seeing that such a tax is not leviable by Parliament but only by the State and the sole limitation on the State 's power to levy the tax is that it must not interfere with a law made by Parlia ment as regards mineral development.
Our attention was not invited to the provision of any such law created by Parliament.
In the context of sections 78 and 79 and the scheme of those provisions it is clear that the land cess is in truth a "tax on lands" within Entry 49 of the State List.
" It seems, therefore, that attention of the Court was not invited to the provisions of Mines and Minerals (Development & Regulation) Act, 1957 and section 9 thereof.
section 9(3) of the Act in terms states that royalties payable under the 2nd Sched ule of the Act shall not be enhanced more than once during a period of 4 years.
It is, therefore, a clear bar on the state legislature taxing royalty so as to in effect amend 2nd Schedule of the Central Act.
In the premises, it cannot be right to say that tax on royalty can be a tax on land, and even if it is a tax, if it falls within entry 50 will be ultra vires the State legislature power in view of section 9(3) of the Central Act.
In Hingir Rampur Coal Co. Ltd. vs The State of Orissa (supra), Wanchoo J. in his dissenting judg ment has stated that a tax on mineral rights being different from a duty of excise, pertains only to a tax that is levi able for the grant of the right to extract minerals, and is not a tax on minerals as well.
On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the state legislature.
The Rajasthan, Punjab, Gujarat and Orissa High Courts have held that royalty is not a tax.
Bherulal vs State of Rajasthan & Anr., AIR ; Dr. S.S. Sharma & Anr.
vs State of 713 Pb.
& Ors., AIR at 84; Saurashtra Cement & Chemicals India Ltd. vs Union of India & Anr., AIR 1979 Guj.
180 at 184 and L.N. Agarwalla & Ors.
vs State of Orissa & Ors.
, AIR 1983 Orissa 210.
It was contended by Mr. Krishnamurthy Iyer that the State has a right to tax minerals.
It was further contended that if tax is levied, it will not be irrational to corre late it to the value of the property and to make some kind of annual value basis of tax without intending to tax the income.
In view of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted.
Mr. Krish namurthy Iyer also further sought to urge that in entry 50 of list II, there is no limitation to the taxing power of the State.
In view of the principles mentioned hereinbefore and the expressed provisions of section 9(2) of the Mines & Minerals (Regulation & Development) Act, 1957, this submis sion cannot be accepted.
This field is fully covered by the Central legislation.
In any event, royalty is directly relatable only to the minerals extracted and on the principle that the general provision is excluded by the special one, royalty would be relatable to entries 23 & 50 of list II, and not entry 49 of list II.
But as the fee is covered by the Central power under entry 23 or entry 50 of list II, the impugned legisla tion cannot be upheld.
Our attention was drawn to a judgment of the High Court of Madhya Pradesh in Miscellaneous Peti tion No. 410/83 M/s Hiralal Rameshwar Prasad & Ors.
vs The State of Madhya Pradesh & Ors., which was delivered on 28th March, 1986 by a Division Bench of the High Court.
J.S. Verma, Acting Chief Justice, as His Lordship then was, held that development cess by section 9 of the Madhya Pradesh Karadhan Adhiniyam, 1982 is ultra vires.
It is not necessary in the view taken by us, and further in view that the said decision is under appeal in this Court, to examine it in detail.
In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under entry 23 of list II.
In any event, we are of the opinion that cess on royalty cannot be sustained under entry 49 of list II as being a tax on land.
Royalty on mineral rights is not a tax on land but a payment for the user of land.
Mr. Krishnamurthy Iyer, however, submitted that in any event, the decision in H.R.S. Murthy 's case (supra) was the decision of the Constitution Bench of this Court.
Cess has been realised on that basis 714 for the organisation of village and town panchayats and comprehensive programme of measures had been framed under the National Extension Service Scheme to which our attention was drawn.
Mr. Krishnamurthy Iyer further submitted that the Directive Principle of State Policy embodied in the Consti tution enjoined that the State should take steps to organise village panchayats and endow them with power and authority as may be necessary to enable them to function as units of self Government and as the amounts have been realised on that basis, if at all, we should declare the said cess on royalty to be ultra vires prospectively.
In other words, the amounts that have been collected by virtue of the said provisions, should not be declared to be illegal retrospec tively and the State made liable to refund the same.
We see good deal of substance in this submission.
After all, there was a decision of this Court in H.R.S. Murthy 's case (supra) and amounts have been collected on the basis that the said decision was the correct position.
We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State Legislature prospectively only.
In that view of the matter, the appeals must, therefore, be allowed and the writ petitions also succeed to the extent indicated above.
We declare that the said cess by the Act under section 115 is ultra vires and the respondent State of Tamil Nadu is restrained from enforcing the same any fur ther.
But the respondents will not be liable for any refund of cess already paid or collected.
The appeals are disposed of accordingly.
The special leave petitions and writ peti tions are also disposed of in those terms.
In the facts and the circumstances of the case, the parties will pay and bear their own costs.
OZA, J.
While I agree with the conclusions reached by my learned brother Hon ' Mukharji, J. I have my own reasons for the same.
The main argument in favour of this levy imposed by the State Legislature is on the basis of Entry 49 in List II of the Seventh Schedule conferring jurisdiction on the State Legislature.
The question therefore to be determined is whether the jurisdiction of the State Legislature under Item 49 of List II could be so exercised to impose a cess on the royality prescribed under Section 9 of the .
The entries which are relevant for the purpose of deter mining this questions are: Entry 54 List I reads: 715 "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
" Entry 23 List II reads: "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.
" Entry 49 List II reads: "Taxes on lands and buildings.
" Entry 50 List II reads: "Taxes on mineral rights subject to any limi tations imposed by Parliament by law relating to mineral development.
" The language of Entries 23 and 50 in List I1 clearly sub jects the authority or jurisdiction on the State Legislature to any enactment made by the Parliament.
Entry 23 talks of regulation and Entry 50 talks of taxes on mineral rights.
It therefore could not be disputed that if the cess imposed under section 115 of the Madras Village Panchayat Act is a cess or tax on mineral rights then that jurisdiction could be exercised by the State Legislature subject to the law enacted by the Parliament.
The Parliament in Section 9(1) of the has fixed the limits of royality on the mining rights.
It was therefore contended on behalf of the State that in fact what is imposed under Section 115 is not a cess on the mining rights or on royality but is a tax on land which clearly falls within the authority of the State legislature in Entry 49 of List II.
Section 9 of the reads: "9(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his gent, manager, employee, contractor or sub lessee from the leased area 716 after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2A) The holder of a mining lease, whether granted before or after the commence of the Mines and Minerals (Regulation and Develop ment) Amendment Act, 1972 shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workmen does not exceed one third of a tonne per month.
(3) The Central Government may, by notifica tion in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification.
Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years.
" It is clear that by this Act alongwith Schedule limits on royality has been fixed and the authority has been given to Parliament alone to vary it and that too not more than once in a period of three years.
Admittedly royality as not based on the area of land under mining but per unit of minerals extracted.
Section 115 of the Madras Village Panchayat Act reads as under: "(1) There shall not be levied in every pan chayat development block, a local cess at the rate of 45 naye paise on every rupee of land revenue payable to the Government in respect of any land for every Fasli.
Explanation: In this Section and in section 116, 'land revenue ' means public revenue due on land and includes water cess payable to the Government for water supplied 717 or used for the irrigation of land, royalty, lease amount for other sum payable to the Government in respect of land held direct from the Government on lease or licence, but does not include any other cess or the surcharge payable under Section 116, provided that land revenue remitted shall not be deemed to be land revenue for the purpose of this Section.
(2) The local cess payable under this Sub section (1) shall be deemed to be public revenue due on the lands in respect of which a person is liable to pay local cess and all the said lands, the buildings upon the said lands and their products shall be regarded as the security for the local cess.
(3) The provisions of the Madras Revenue Recovery Act, 1864 (Madras Act II of 1864) shall apply to the payment and recovery of the local cess payable under this Act just as they apply to the payment and recovery of the revenue upon the lands in respect of which the local cess under this act is payable.
(4)(a) Out of the process of the local cess so collected in every panchayat development block, a sum representing four ninths of the proceeds shall be credited to the Panchayat Union (Education) Fund.
(b) Out of the proceeds of the local cess collected in every panchayat town in a pan chayat development block, a sum representing two ninths of the said proceeds shall be cred ited to the town panchayat fund.
(c) Out of the balance of the local cess credited in the panchayat development block, such percentage as the panchayat union council may fix shall be credited to the village panchayat fund, and the percentage shall be fixed so as to secure as nearly as may be that the total income derived by all the village panchayats in the panchayat union does not fall short of an amount calculated at 20 naye paise for each individual of the village population in the panchayat union.
(d) The balance of the proceeds of the local cess collected in the panchayat develop ment block shall be cre 718 dited to the funds of the panchayat union council.
" The explanation to sub clause I is the subject matter of controversy in this case.
Sub clause I provides for levy of 45 naye paise for every rupee of land revenue payable to the Government in the explanation a fiction is created thereby even the royalty payable have been included within the definition of "land revenue".
As it provides "royalty, lease amount or any other sum payable to the Government in respect of land.
" This phraseology has been incorporated by an amendment in 1964 by the Madras Village Panchayat Amendment Act, 1964 Section 13 wherein the explanation to Section 115 was substituted and substituted retrospectively wherein this royalty has also been included in the definition of 'land revenue ' and it is on this ground that it was mainly con tended that land revenue being a tax on land is within the authority of the State Legislature under Item 49 of List II and therefore the cess which is a tax on land revenue itself or an imposition on the land revenue and hence could not be anything else but a tax falling within the ambit of tax on land as provided by entry 49 List II and it was therefore contended that it would not fall within the ambit of entry 50 List II as if it falls within the ambit of entry 50 of List II, it would be beyond the authority of the State legislature as by passing the Parliament has denuded the State Legislature of its authority to levy any tax on mining rights.
Whether royality is a tax is not very material for the purpose of determination of this question in this case.
It is admitted that royality is charged on the basis of per unit of minerals extracted.
It is no doubt true that mineral is extracted from the land and is available, but it could only be extracted if there are three things: (1) Land from which mineral could be extracted.
(2) Capital for providing machinery, instruments and other requirements.
(3) Labour It is therefore clear that unit of charge of royalty is not only land but land + Labour + Capital.
It is therefore clear that if royalty is a tax or an imposition or a levy, it is not on land alone but it is a levy or a tax on mineral (land), labour and capital employed in extraction of the mineral.
It therefore is clear that royalty if is imposed by the Parlia 719 ment it could only be a tax not only on land but no these three things stated above.
It is not in dispute that the cess which the Madras Village Panchayat Act proposes to levy is nothing but an additional tax and originally it was levied only on land revenue, apparently land revenue would fall within the scope of entry 49 but it could not be doubted that royalty which is a levy or tax on the extracted mineral is not a tax or a levy on land alone and if cess is charged on the royalty it could not be said to be a levy or tax on land and therefore it could not be upheld as imposed in exercise of jurisdic tion under Entry 49 List II by the State Legislature.
Thus it is clear that by introducing this explanation to Section 115 clause (1) widening the meaning of word 'land revenue ' for the purposes of Section 115 and 116.
When the Legislature included Royalty, it went beyond its jurisdic tion under entry 49 List II and therefore clearly is without the authority of law.
But this also may lead to an interest ing situation.
This cess levied under Section 115 of the Madras Village Panchayat Act is levied for purposes indicat ed in the scheme of the Act and it was intended to be levied on all the lands falling within the area but as this cess on royalty is without the authority the result will be that the cess is levied so far as lands other than the lands in which mines are situated are concerned but lands where mines are situated this levy of cess is not in accordance with that law.
This anomaly could have been averted if the Legislature in this explanation had used words 'surface rent ' in place of royalty.
Even if the lands where mines are situated and which are subject to licence and mining leases even for those lands there is a charge on the basis of the surface of the land which is sometimes described as surface rent or sometimes also as 'dead rent '.
It could not be doubted that if such a surface rent or dead rent is a charge or an impo sition on the land only and therefore will clearly fall within the purview of entry 49 List H and if a cess is levied on that it will also be justified as tax on land falling within the purview of entry 49 and it will also be uniform as this cess would be levied in respect of the lands irrespective of the fact as to whether the land is one where a mine is situated or land which is only used for other purposes for which land revenue is chargeable.
R.S.S. Appeal allowed.
|
The appellant company used to manufacture cement and was granted mining lease for limestone and kankar by the Govern ment of Tamil Nadu in accordance with the Mineral Concession Rules, 1960.
The royalty was fixed under the Mines and Minerals (Regulation & Development) Act, 1957 which is a Central Act by which the control of mines and minerals had been taken over by the Central Government for the regulation and development of minerals.
Sub section 1 of section 115 of the Madras Panchayats Act, 1958 enjoins that there shall be levied in every pan chayat development block, a local cess at the rate of 45 paise on every rupee of land revenue payable to the Govern ment in respect of any land for every Fasli.
An explanation to the said section was added, and was deemed always to have been incorporated by the Tamil Nadu Panchayats (Amendment and Miscellaneous Provisions) Act, 1964.
In this explanation a fiction was created whereby even the royalty payable had been included within the definition of "land revenue".
The appellant filed a writ petition in the High Court challenging the competence of the State legislature to levy cess on royalty.
A learned Single Judge dismissed the writ petition holding that the cess levied 693 under section 115 of the Madras panchayats Act was a tax on land and, as such, fell under Entry 49 of the State List of Schedule VII of the Constitution.
The Division Bench dis missed the appellant 's appeal and held that local cess authorised by section 115 was not land revenue but was a charge on the land itself, and section 115 merely quantified the basis of the quantum of land revenue.
The learned Single Judge, as well as the Division Bench, relied on the decision of this Court in H.R.S. Murthy vs Collector of Chittoor, ; Before this Court, it was contended on behalf of the appellant that the levy of cess on royalty in this case was nothing but a tax on royalty and was therefore ultra vires the State legislature.
On the other hand, it was contended that the cess in the present case was a levy in respect of land and could be justified or sustained either under entry 49, 50 or 45 of List II of the 7th Schedule to the Constitu tion.
It was further submitted that the cess having been realised on the basis of the decision of this Court in "H.R.S. Murthy" case, if at all, the Court shall declare the said cess on royalty to be ultra vires prospectively.
Allowing the appeal, this Court, HELD: (E.S. Venkataramiah, C J, Sabyasachi Mukharji, Ranganath Misra, B.C. Ray, K.N. Singh and section Natarajan, JJ. per Sabyasachi Mukharji, J.) (1) Courts of law are enjoined to gather the meaning of the Constitution from the language used, and although one should interpret the words of the Constitution on the same principles of interpretation as one applied to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation.
It has to be remembered that it is a Constitution that requires interpretation.
Constitution is the mechanism under which the laws are to be made and not merely an Act which declares what the law is to be.
[704B C] The Attorney General for the State of New South Wales vs The Brewery Employees Union of New South Wales; , , referred to.
(2) A Constitution must not be construed in any narrow or pedantic sense, and construction most beneficial to the widest possible amplitude of its powers, must be adopted.
A broad and liberal spirit should inspire those whose duty it is to interpret the Constitution, but 694 they are not free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors.
[704D E F] In re. ' C.P. Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938, [1939] FCR p. 1 and James vs Common wealth of Australia, , referred to.
(3) It is well settled now that the various entries in the three lists are not powers but fields of legislation.
The power to legislate is given by Article 246 and other articles of the Constitution.
[704G] Calcutta Gas Co. vs State of West Bengal, [1962] Suppl.
3 SCR 1, referred to.
(4) It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other.
Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists.
Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it.
[705A B & D] H.R. Banthia & Ors. etc.
vs Union of India & Ors.
, ; ; Union of India vs H.S. Dhillon, ; and D.C. Rataria vs Bhuwalka Brothers Ltd., ; , referred to.
(5) It is clear that over a period of centuries, land revenue in India has acquired a cannot active meaning of share in the produce of land to which the King or the Gov ernment is entitled to receive.
[707B] N.R. Reddy & Ors.
vs State of A.P., [1965] 2 Andhra Law Times 297 and State ofA.P.v.
N.R. Reddy & Ors., ; , referred to.
(6) There is a clear distinction between tax directly on land and tax on income arising from land.
[708C] Raja Jagannath Baksh Singh vs The State of U.P. & Anr.
, ; , referred to.
695 (7) Explanation to section 115(1) itself makes a dis tinction between land revenue as such and royalty which by amendment is deemed to be land revenue.
It is, therefore, recognised by the very force of that explanation and the amendment thereto that the expression 'royalty ' in sections 115 & 116 of the Act cannot mean land revenue property called or conventionally known, which is separate and dis tinct from royalty.
[707D E] (8) In the instant case, cess is not on land, but on royalty, which is included in the definition of 'land reve nue ', None of the three lists of the 7th Schedule of the Constitution permits or authorises a State to impose tax on royalty.
(9) Royalty which is indirectly connected with land, cannot be said to be a tax directly on land as a unit.
Royalty is payable on a proportion of the mineral extracted.
The Act does not use dead rent as a basis on which land is to be valued.
Hence, there cannot be any doubt that the impugned legislation in its pith and substance is a tax on royalty and not a tax on land.
[709E] New Manek Chand Spinning & Weaving Mills Co. Ltd. & Ors.
vs Municipal Corporation of the City of Allahabad & Ors.
, ; ; S.C. Nawn vs W.T.O. Calcutta & Ors., ; ; Asstt.
Commissioner of Urban Land Tax & Ors.
vs The Buckingham & Carnatic Co. Ltd. etc.; , ; Second Gift 'Fax Officer, Mangalore etc.
vs D.H. Nazareth etc.
; , ; Bhagwan Dass Jain vs Union of India, ; and The Western India Theatres Ltd. vs The Cantonment Board, Poona Cantonment, ; , referred to.
(10) Royalty is directly relatable only to the minerals extracted and on the principle that the general provision is excluded by the special one, royalty would be relatable to entries 23 & 50 of List II, and not entry 49 of List II.
[713D] (11) Royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under entry 23 of List II.
In any event, cess on royalty cannot be sustained under entry 49 of List II as being a tax on land.
Royalty on mineral rights is not a tax on land but a payment for the user of land.
[713F G] 696 Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd.; , ; Anant Mills Co. Ltd. vs State of Gujarat & Ors., ; The Hingir Rampur Coal Co. Ltd. & Ors.
vs The State of Orissa & Ors., ; ; State of Orissa vs M.A. Tulloch & Co., ; ; Baijnath Kedia vs State of Bihar & Ors., ; M/s. Laxminarayana Mining Co. Bangalore vs Taluk Dev Board, AIR ; M. Lal & Ors.
vs The State of Bihar & Ors.
, AIR 1965 Patna 491; Bherulal vs State of Rajasthan, AIR ; Dr. S.S. Sharma & Anr.
vs State of Punjab & Ors., AIR ; Saurashtra Cement & Chemi cals India Ltd. vs Union of India & Anr., ; L.N. Agarwalla & Ors.
vs State of Orissa, AIR 1983 Orissa 210 and M/s Hira lal Rameshwar Prasad & Ors.
vs The State of Madhya Pradesh & Ors., M.P. High Court Misc.
Petition No. 410/83, referred to.
H.R.S. Murthy vs Collector of Chittoor & Anr., ; , overruled.
(12) The amounts of cess have been collected on the basis of the decision of this Court in H.R.S. Murthy 's case.
The Court is therefore justified in declaring the levy of the said cess under section 115 to be ultra vires the power of the State legislature prospectively only.
The respondents will not be liable for any refund of cess already paid or collected.
[714C D & E] Per G.L. Oza, J. (1) Sub clause (1) of Section 115 provides for levy of 45 naya paise for every rupee of land revenue payable to the Government.
In the explanation a fiction is created whereby even the royalty payable has been included within the defi nition of 'land revenue '.
[718A] (2) The language of Entries 23 and 50 in List II clearly subjects the authority or jurisdiction on the State Legisla ture to any enactment made by the Parliament.
Entry 23 talks of regulation and Entry 50 talks of taxes on mineral rights.
It therefore could not be disputed that if the cess imposed under section 115 of the Madras Panchayats Act is a cess or tax on mineral rights then that jurisdiction could be exer cised by the State Legislature subject to the law enacted by the Parliament.
[715D E] (3) Unit of charge of royalty is not only land but land + labour + capital.
It is therefore clear that if royalty is a tax or an imposition or a levy, it is not on land alone but it is a levy or a tax on mineral (land), 697 labour and capital employed in extraction of the mineral.
It therefore is clear that royalty if it is imposed by the Parliament it could only be a tax not only on land but on the three things stated above.
[718H; 719A] (4) When the Legislature included royalty, it went beyond its jurisdiction under Entry 49 of List II and there fore clearly is without the authority of law.
[719D] (5) This may lead to an interesting situation.
As this cess on royalty is without the authority, the result will be that the cess is levied so far as lands other than the lands in which mines are situated are concerned but lands where mines are situated this levy of cess is not in accordance with the law.
This anamoly could have been averted if the Legislature had used words 'surface rent ' in place of royal ty.
Even if the lands where mines are situated and which are subject to licence and mining leases, even for those lands there is a charge on the basis of the surface of the land which is Sometimes described as surface rent or sometimes also as 'dead rent '.
[719E F]
|
minal Appeal No. 146 of 1954.
Appeal from the judgment and order dated the 27th November 1954 of the Court of Judicial Com 683 missioner at Ajmer in Criminal Appeal No. 15 of 1954 arising out of the judgment and order dated 25th August 1954 of the Court of Special Judge at Ajmer in Criminal Case No. 5 of 1953.
B. P. Maheshwari, for the appellant.
C. K. Daphtary, Solicitor General for India, Porus A. Mehta, H. R. Khanna and B. H. Dhebar, for the respondent.
September 21.
The Judgment of the Court was delivered by BHAGWATI J.
This Appeal with a certificate of fitness under article 134(1)(c) of the Constitution against the decision of the Judicial Commissioner at Ajmer raises an important question as to the connotation of the word "officer" contained in section 21(9), Indian Penal Code.
The appellant was a Class III servant employed as a metal examiner, also called Chaser, in the Railway Carriage Workshops at Ajmer.
I He was charged under section 161, Indian Penal Code with having accepted from one Nanak Singh currency notes of the value of Rs. 150 as illegal gratification as a motive for securing a job for one Kallu.
He was also charged under section 5(1)(d) of Act II of 1947 with abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantage in the shape of Rs. 150 from the said Nanak Singh.
He was further charged with having committed an offence under section 420, Indian Penal Code for having induced the said Nanak Singh to deliver to him currency notes of the value of Rs. 150 by dishonest representation that be could secure a job for the said Kallu.
The learned Special Judge, State of Ajmer, who tried him in the first instance for the said offences convicted him of the offence under section 161, 'Indian Penal Code as also the offence under section 5(1) (d) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for six months and one year respectively in regard to the same, both the sentences to run concurrently.
In so far, 684 however, as it was not proved that the appellant did not believe when he accepted the money that he could secure or would try to secure a job for Kallu, it was held that no case under section 420, Indian Penal Code was made out and he was acquitted of that charge.
The appeal taken to the Judicial Commissioner, State of Ajmer, by the appellant failed and on the 10th December, 1954, the learned Judicial Commissioner granted to the appellant a certificate of fitness for appeal on two main grounds, viz., (1) whether the appellant was an "officer" within the meaning of clause (9) of section 21, Indian Penal Code, and (2) whether the provisions of section 137 of the Railways Act excluded all railway servants from the definition of public servants except for purposes of Chapter ' IX, Indian Penal Code.
Concurrent findings of fact were reached by both the Courts below on the question as to whether the appellant accepted Rs. 150 from Nanak Singh as and by way of illegal gratification and these findings could not be and were not challenged before us by the learned counsel for the appellant.
The only questions which were canvassed before us were the two legal points which formed the basis of the certificate of fitness for appeal granted by the learned Judicial Commissioner, State of Ajmer, to the appellant.
The second question has now become academical in the facts of the present case by virtue of a decision of this Court in Ram Krishan vs Delhi State(1), which lays down that before the amendment of section 137 of the Railways Act by Act 17 of 1955 railway servants were treated as public servants only for the purposes of Chapter IX, Indian Penal Code, but in any event they were public servants under the Prevention of Corruption Act (Act II of 1947).
In so far as the appellant has, in our opinion, been rightly convicted of the offense under section 5(1)(d) of Act If of 1947 and awarded the sentence of rigorous imprigonment for one year, the question whether he was rightly convicted of the offence under section 161, (1) ; 685.
Indian Penal Code for which he was awarded the lesser sentence of six months ' rigorous imprisonment has become merely academical and the only question which remains to be considered by us here is whether he was an "officer" within the meaning of section 21 (9), Indian Penal Code.
The provisions of law in regard to the first question may be conveniently set out at this stage: Section 2 of the Prevention of Corruption Act II of 1947 provides: "for the purposes of this Act "public servant" means a public servant as defined in section 21 of the Indian Penal Code".
Section 21, Indian Penal Code provides so far as is relevant for the purposes of the present appeal: "The words 'public servant ', denote a person falling under any of the descriptions hereinafter following, namely, Ninth. . . . and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty".
There is no doubt that the appellant was.
in the service or pay of the Government and was performing the duty of a metal examiner known as Chaser in the Railway Carriage Workshops at Ajmer and was thus performing a public duty.
It was, however, contended that the appellant was not an officer within the meaning of that term as used in section 21(9), Indian Penal Code.
An Officer, it was contended, on the authority of Reg.
vs Ramajirav jivbajirav and another(1), meant one to whom was delegated by the supreme authority some portion of its regulating and coercive powers and who was appointed to represent the State in its relations to individual subjects.
According to the dictum of West, J., the word "officer" meant some person employed to exercise to some extent and in certain circumstances a delegated function of Government.
He was either himself armed with some authority or repre (1) XII Bom.
H.C.R. 1. 386 sentative character or his duties were immediately auxiliary to those of some one who was so armed.
It was, therefore, contended that the appellant being a metal examiner known as Chaser in the Railway Carriage Workshops had not delegated to him by the supreme authority some portion of its regulating and coercive powers nor was he appointed to represent the State in its relations to individual subjects.
He was neither armed with some authority or representative character nor were his duties immediately auxiliary to those of some one who was so armed.
He was not employed to exercise to some extent and in certain circumstances the delegated function of Government and, therefore, was not an "officer" within the meaning of that term as used in section 21(9), Indian Penal Code.
If he was thus not an officer of the Government, he could not be a public servant within the meaning of section 21, Indian Penal Code nor could he be a public servant for the purposes of Act 11 of 1947 and could not be convicted of the offence under section 5(1)(d) of Act II of 1947.
It has to be noted, however, that the case before the learned Judges of the High Court of Bombay in 12 Bombay High Court Reports 1, concerned an Izaphatdar, that is a lessee, of a village who bad undertaken to keep an account of its forest revenue and pay a certain proportion to the Government, keeping the remainder for himself and the question 'that arose for the consideration of the Court was whether such a person was an officer within the meaning of section 21(9), Indian Penal Code.
It was in this context that the aforesaid observations were made by West, J., and the Court came to the conclusion that Deshmukhs and Deshpandes would be sufficiently within the meaning of the clause they being appointed to perform for the State a portion of its functions or to aid those who were its active representatives but not so an Izaphatdar or the lessee such as the accused.
He was not an officer but a mere contractor bound by his engagement but not by the terms of his office or employment to pay a certain proportion to the Government.
There was no delegation to him of any 687 authority for coercion or interference nor was he an assistant appointed to help any one who was vested with such authority.
The duties which he performed were contractual duties frauduler deception in the discharge of which might subject him to punishment for cheating but not duties attached to any office conferred on him or his predecessor in title, failure to perform which with integrity could make him liable, as an officer, to the special penalties prescribed for delinquent public servants.
This decision in 12 Bombay High Court Reports 1, came to be considered by the Calcutta High Court in Nazamuddin vs Queen Empress(1).
The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under section 161, Indian Penal Code.
The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of clause (9) of section 21, Indian Penal Code which declared "every officer in the service or pay of Government" was a public servant be cause he was not an officer.
The case of Reg.
vs Ramajirav Jivbajirav(2) was cited in support of that contention and the learned Judges of the Calcutta High Court observed at page 346 as under: "The learned Judges in that case had to consider whether a lessee from Government was on the conditions of his lease a public servant and, in doing so, they considered generally the meaning of the term "officer".
It was there held that an officer means "some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government.
He is either armed with some authority or representative character, or his duties are immediately auxiliary to those of some person who is so armed".
The meaning which we are asked to put on these words seems to us to be too narrow as applied to the present case.
The peon who has been convicted as a public servant is in service and pay of the Government, and he is attached to the office of the Superintendent of the Salt Department.
The exact (1) I.L.R. (2) XII Bom.
H.C.R. 1.
688 nature of his duties is not stated, because this objection was not taken at the trial.
, but we must take it that, from the nature of his appointment, it was his duty to carry out the orders of his official superior, who undoubtedly is a public servant, and in that capacity to assist the Superintendent in the performance of the public duties of his office.
In that sense he would be an officer of Government, although he might not possibly exercise "any delegated function of the Government".
Still his duties would be "immediately auxiliary to those of the Superintendent who is so armed".
We think that an "officer in the service or pay of Government" within the terms of section 21 of the Penal Code is one who is appointed to some office for the performance of some pulice duty.
In this sense the peon would come within section 21, cl. 9".
The true test, therefore, in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or pay of the Government, and (2) whether he is entrusted with the performance of any public duty.
If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed.
As has been stated in Bacon 's Abridgment at Vol.
6, page 2, in the article headed "Of the nature of an officer and the several kinds of officers": "The word "officium ' principally implies a duty, and in the next place, the charge of such duty; and that it is a rule that where one man 'bath to do with another 's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer".
The next paragraph thereafter may also be referred to in this context: "There is, a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to, make hay, herd a flock, &c which differ widely from that of steward of a manor" &c. (Vide 12 Bombay High Court Reports at page 5).
689 This was the sense in which the decision in 12 Bombay High Court Reports 1, was understood by the learned Judges of the Lahore High Court in Ahad Shah vs Emperor(1) when they observed at page 157: "But it is not enough that a person should be in the pay or service of Government to Constitute him a public servant within the meaning of section 21 (ninthly), I.P.C. He must also be an "Officer".
That expression is not, of course, to be restricted to its colloquial meaning of a Commissioned or non Commissioned Officer; it means a functional or holder of some "officium" or office.
The office may be one of dignity or importance; it may equally be humble.
But whatever its nature, it is essential that.
the person holding the office, should have in some degree delegated to him certain functions of Government".
The question for consideration before the learned Judges of the Lahore High Court was whether a Quarter Master 's 'clerk was a public servant within the meaning of that expression in section 21, Indian Penal Code.
On the facts elicited before them the learned Judges came to the conclusion that the Quarter Master 's clerk as such was just a Babu and no more an officer than a labourer or menial employed and paid by Government to do public work (See Queen vs Nachimuttu(2).
if therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the 'Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately ' auxiliary to those of some one who is an officer of the Government and is therefore 'an officer ' of the Government within the meaning of section 21(9), Indian Penal Code.
Applying this test to the facts of the case before us, we find that the appellant was a Class III servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshop.
He was working under the Works Manager who was certainly (1) A.I.R. 1918 Lah.
(2) I.L.R. 7 Madras 18, 690 an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who, beside being an officer of the Government was also armed with some authority or representative character qua the Government.
The appellant was thus, even on a narrow interpretation of the dicta of West, J. in 12 Bombay High Court Reports 1, an officer in the service or pay of the Government performing as such a public duty entrusted to him by the Government and was therefore, a public servant within the meaning of section 21 of the Indian Penal Code.
This being the true legal position, this contention of the appellant also does not avail him and the first question must be answered against him.
The appellant was, therefore, an officer within the meaning of section 21(9) and therefore a public servant within the meaning of section 21, Indian Penal Code and being such public servant be fell within the definition of a public servant contained in section 2 of the Prevention of Corruption Act II of 1947.
He was, therefore, on the facts and circumstances of the case, rightly convicted under section 5(1) (d) of Act II of 1947.
His conviction and the sentence imposed upon him by the Courts below were therefore quite in order and this appeal must therefore stand dismissed.
|
The appellant was a Class III servant employed as a metal examiner, also called chaser, in the Railway Carriage Workshop at Ajmer.
He accepted a sum of Rs. 150 as illegal gratification for securing a job for some person.
He was charged under section 5(1)(d) of the Prevention of Corruption Act, 1947 (Act II of 1947).
The appellant contended that he was not an "officer" within the meaning of the term used in section 21(9) of the Indian Penal Code and so could not be a public servant for purposes of Act II of 1947.
It was found that the appellant was working under the Works Manager who was certainly an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who was also armed with some authority or representative character qua the Government.
Held, that the appellant was an officer within the meaning of section 21(9) of the Indian Penal Code and, therefore, a public servant within the meaning of section 2 of Act 11 of 1947.
The true test in order to determine whether a person is an officer of the Government, is: " .
(1) whether he is in the service or pay of the Government and (2) whether he is entrusted with the performance of any,public duty.
The public duty may be either,a function of the Government delegated to him or may be a duty immediately auxiliary to that of someone who is an officer of the Government.
vs Ramajirav Jivbajirav ([1875] XII Bom.
H.C.R. 1), explained.
Nazamuddin V. Queen Empress, ([1900] I.L.R. and Ahad Shah vs Emperor (A.I.R. 1918 Leh. 152), relied on
|
minal Appeal No. 568 of 1976.
(From the Order dt. 2 4 1975 of the Punjab and Haryana High, Court at Chandigarh in Criminal Original No. 15/Crl.11975).
Mohan Behari Lal for the Appellant.
Hardev Singh, Sunada Bhandare and Mohini for the Respondents Nos.
1 2. 511 section M. Kacker, Sol.
Genl. & R. N. Sachthey for Respondent No. 3.
The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal filed by the alleged contemner under section 19(1) of the (hereinafter called the Act), from the order dated 2nd April, 1975 of the High Court of Punjab and Haryana directing the issue of notice to the appellant to show cause why he should not be proceeded against for committing con tempt of the High Court.
The Notice was issued in accordance with the procedure prescribed under section 17 of the Act, to show cause against the appellant 's alleged liability to be punished under section 15.
A preliminary objection was raised by the, Learned Solicitor General,, on behalf of the respondents that no appeal lies to this Court under section 19 of the Act from an order issuing notice as nothing yet has been decided by the High Court.
Mr. Mohan Behari Lai, learned counsel for the appellant combated this argument and submitted that an appeal does lie to this Court as a matter of right under section 19.
In our opinion, the preliminary objection raised on behalf of the, respondents is well founded and must be accepted as correct.
section 19(1) says .lm15
An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt (a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court : Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
" It would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt.
No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt: The proceeding is initiated under section 17 by issuance of a notice.
Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court.
It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court.
The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved.
Mere initiation of a proceeding for contempt by the issuance, of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question.
This Court, 512 for the first time, cannot be asked in such an appeal to decide whether the; person proceeded against has committed contempt of the High Court or not.
The matter has to be decided either finally or, may be.
even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the, High Court to drop the, proceeding.
It is neither possible, nor advisable, to make an exhaustive list of the: typo of orders which may be appealable to this Court under section 19.
A final order, surely, will be appealable.
Our attention was drawn by Mr. Mohan Behari Lai, to section 20 of the Act which provides "No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
" He submitted that initiation of the proceeding by the High Court will be, without jurisdiction if it is in violation of section 20.
It may be so.
If the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceeding on the.
ground of its being barred under section 20 of the Act but the High Court holds that the, proceeding is not barred, it may well be that an appeal would lie to this Court under section 19 from such an order although the proceeding has remained pending in the High Court.
We are not called upon to express our final opinion in regard to such an order, but we merely mention this type of order by way of an example to show that even orders made at some intermittent stage in the proceeding may be, appealable under section 19.
In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right tinder section 19.
in a given case special leave may be granted under article 136 of the Constitution from an order initiating the proceeding.
But that is entirely a different matter.
What we are deciding in, this case is that the present appeal filed under section 19 (1) of the Act does not lie and is incompetent.
We find some support to, the view expressed by us above from the decision of this Court in Baradakanta Mishra vs Orissa High Court,(1) where it has been held that no appeal lies to this Court under section 19 of the Act from an order rejecting the prayer of the alleged contemner for bearing the case piecemeal.
Mr. Lai placed reliance on the observations of this Court in Baradakanta Mishra vs Justice Gatikrushna Mishra (2).
What has been decided therein is this : that on a reference made by the Advocate General if the Court declines to take cognisance and to initiate proceeding for contempt, the order is not an order initiating contempt proceeding.
Surely, it is not appealable under section 19.
But there are no observations by this Court nor on the facts of that case there can be any,.
to show that an appeal would lie to, this Court from an order of the High Court merely initiating the proceeding by issuance of a notice.
We, may repeat that it may be, a different matter if the order does decide (1) A.I.R. 1976 S.C. 1206.
(2) ; (at pp.
531 32).
513 some disputes raised before it by the contemner asking it to drop the proceeding on one ground or the other.
But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their right, the mere order issuing the notice is not appealable.
The appeal is, therefore, dismissed as being not maintainable.
P H. P. Appeal dismissed.
|
The High Court passed an order directing issue of notice to the appellant to show cause why he should not be proceeded against for committing contempt .of the High Court.
The notice was issued in accordance with the procedure prescribed under section 17 of the .
The appellant filed an appeal against the said order under section 19(1) of the Act in this Court.
The counsel for the respondent raised a preliminary objection that no appeal under section 19(1) is maintainable against the order in question.
Dismissing the appeal the Court, HELD : (1) An appeal lies to this Court as a matter of right from any order or decision of a Bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt.
However, an appeal cannot lie from any kind of order made by the High Court in the proceeding for contempt.
The proceeding is initiated under section 17 by issuance of a notice.
Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court.
It could not be the intention of the Legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court.
The order or the decision must be such that.
it decides some bone of contention raised before the High Court affecting the right of the party aggrieved.
Mere initiation of a proceeding does not decide any question.
[511 F H] 2.
if the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceedings on the ground of its being barred under Section 20 of the Act but the High Court holds that the proceedings is not barred, it may well be that an appeal would lie to this Court under section 19 It is neither possible nor advisable to make an exhaustive list of the type of orders which may be appealable under section 19.
[512 B C] Baradakanta Mishra vs Orissa, High Court, A.I.R. 1976 S.C. 1206, relied on.
Baradakanta Mishra vs Justice Gatikrushna Mishra ; , 53132, distinguished.
|
ivil Appeal No. 617 (NL) of 1975.
From the Judgment and Order dated 4.12.1973 of the Madhya Pradesh High Court in Misc.
Petition No. 713 of 1971.
M.K. Ramamurthy, Vineet Kumar and N.D.V. Raju for the Appellant.
G.B. Pai, S.K. Gambhir, Ashok Mahajan and Ms. section Kirpalani for the Respondents.
The Judgment of the Court was delivered by KHALID, J.
This is an appeal by certificate, issued by the High Court of Madhya Pradesh under Article 133(1) of the Constitution of India against the Judgment of a Division Bench of that Court setting aside the Order passed by the Labour Court, Ujjain, confirmed in revision by the Industrial Court, Madhya Pradesh, allowing an application filed by the appellant under Section 31 of the Madhya Pradesh Industrial Relations Act, 1960 (hereinafter referred to as the Act) in which he had challenged his termination which challenge was accepted and his reinstatement was ordered.
The facts in brief, necessary for disposal of this appeal are as follows: 2.
The appellant was appointed as Store Keeper Cum Accountant on 14.2.1957, in the Madhya Pradesh Khadi and Village Industries Board, Budhwara, Bhopal.
This Board is a body corporate constituted under the M.P. Khadi and Village Industries Act 1959 and is engaged among others, in activities of encouraging production of Khadi and helping other village industries.
It has 644 different branches in the State of Madhya Pradesh.
One such centre was established at Berdi in Chhindwara district.
The Board supplied raw wool to the Co optative Societies and after getting them woven by the societies into blankets, received back blankets as finished goods.
m e services of the appellant were terminated as per Order dated 23.9.1964, after giving one month 's notice.
He challenged this Order of termination as one amounting to retrenchment, and having been passed without complying with the provisions of the Act that govern his relationship with the Board.
He stated that a charge sheet was given to him on 27.4.1964, based on false and baseless grounds and that there was no enquiry held into the said charges before his removal.
The appellant thereupon moved the Labour Court at Ujjain on 7.6.1975, for his reinstatement with full wages.
The Board contested the application contending inter alia that the Board was not an industry and that neither the M.P. Industrial Relations Act, 1960 nor the applied to it.
The Labour Court, Ujjain framed necessary issues on the rival contentions and after recording evidence, held that the termination of the appellant amounted to retrenchment, set aside the Order of termination and directed the Board to reinstate him with half salary front the date of the Order till reinstatement.
Aggrieved by this Order the Board preferred a revision before the Industrial Court in Madhya Pradesh, Indore, repeating the contentions raised before the Labour Court.
m e Industrial Court by its order dated 3.2.1967, affirmed the order of the Labour Court and dismissed the revision petition.
The Board pursued the matter further by moving the Madhya Pradesh High Court by a petition under Article 226 and 227 of the Constitution of India.
The High Court by its order dated 19.12.1969, allowed the Writ Petition, quashed the order of the Industrial Court and remitted the case to it to decide the facts afresh with due regard to the relevant provisions of the M.P. Industrial Relations Act, 1960.
After remand, the Industrial Court proceeded to decide the question itself after taking fresh evidence and again held in favour of the appellant and against the Board, reaffirming its previous decision to reinstate the appellant.
The matter was taken to the High Court again by the Board by means of a Writ Petition.
The High Court set aside the orders of the Industrial Court and the Labour Court, on the ground that they acted without jurisdiction.
However, since the 645 High Court felt that the matter was not free from doubt and was debatable, granted certificate to the appellant to appeal to this Court.
It is thus that the matter is before us.
In the State of Madhya Pradesh there is a separate Act to regulate the relations of employees in certain matters and to make provisions for settlement of industrial disputes and other connected matters.
mis Act is called the Madhya Pradesh Industrial Relations Act, 1960.
Section 2 (19) defines Industry as under: Industry means (a) any business, trade, manufacture, undertaking or calling of employers; (b) any calling, service, employment, handicraft or industrial occupation or a vocation of employees; and Includes (i) agriculture and agricultural operations; (ii) any branch of any industry or group of industries which the State Government may, by notification, declare to be an industry for the purposes of this Act.
Section 2 (33) defines undertaking as follows: "Undertaking means a concern in any industry .
Thus, any concern, to become an industry, has to satisfy the above definitions to attract the Provisions of the Act.
Such concerns have to satisfy another condition to attract the provisions of the Act and that is about the number of employees the concern employs.
This is provided in a Notification issued under the Act which reads as follows: No. 9952 XVI, dated 31st December, 1960.
In exercise of the powers conferred by `Sub Section (3) of Section 1 of the Madhya Pradesh Industrial Relations Act 1960 (No. 27 of 1960), the State Government hereby directs that all the provisions of the said Act other than section 1 and 112 thereof shall be into 646 force on 31st December, 1960, in respect of undertaking in the industries specified in the schedule below wherein the number of employees on any date during twelve months preceding or on the date of this notification or any day thereafter was or is more than one hundred : SCHEDULE 1.
Textile including cotton, silk, artificial silk staple fibre, jute and carpet.
. . . . . . . . . . . . . . . . . . . . " This notification, thus, makes the provisions of the Act applicable only to undertaking in the industries specified in the schedule, where the number of employees, on the date mentioned therein was or is more than 100.
We are concerned here only with item No. 1 in the schedule and therefore, have left out the other items.
Before considering the rival contentions raised before us, we may extract the relevant sections of the Act under which the Board was constituted, to understand the functions and duties of the Board.
For our purpose it is enough to quote Sections 14 (1) & 14 (2) (a) alone, Clause (b) to (m) are not necessary for the resolution of the dispute involved in this case and hence are omitted.
Functions of Board.
(1) It shall be the duty of the Board to organise, develop and regulate Khadi and Village Industries and perform such functions as the State Government may prescribe.
(2) Without prejudice to the generality of the provisions of the sub section (1) the Board shall also in particular discharge and perform all or any of the following duties and functions namely; (a) To start, encourage, assist and carry on Khadi and Village Industries and in the matters incidental to such trade or business." 647 With this background we will advert to the facts of the case.
8.The Board resisted the appellant 's case on two grounds (i) that it is not an industry within the meaning of the Act and (ii) that it does not employ more than 100 persons.
It is necessary to note at this stage that the Board had not originally urged any plea that it did not employ sufficient employees to attract the Act.
It was during the course of argument that this plea about the number of appointees was urged by the Board.
However, both the Labour Court and the Industrial Court considered the two jurisdictional questions as to whether the Board was an industry and as to whether it had employed more than 100 persons.
We have gone through the orders passed by the labour Court and the Industrial Court, carefully.
According to us a close examination of the evidence adduced in the case and the discussions bearing on them by the Labour Court in particular and the Industrial Court, admits of no doubt that the Board employed more than 100 persons.
For this purpose, we content ourselves by extracting the following paragraph from the order of the Labour Court while considering the first point namely whether the provisions of the Act are applicable to the Board. "Thus the applicant 's contention that the Parishad 's cloth weaving centres were in existence till 2 years before and his contention in respect of the number of workers engaged at Mandsaur, Gwalior, Anjad entries etc. have not been refuted by the nor applicant.
It is therefore concluded them at (sic) 60, 40, 4 & 3 workers were working at Parishad 's centres situated at Mandsaur, Gwalior, Anjad and Parsinga.
Besides this there were officials working at Chanderi & Maneshwar weaving centres.
The non applicant who is in possession of the records of appointment and who is also not disclosing the exact figures (of the workers), therefore the conclusions go against the non applicant.
This finding on the appreciation of the evidence given by the witnesses concludes the parties according to us, regarding the number of the employees employed by the Board.
Even so, when the matter went before the High Court, the High Court felt that the jurisdictional question was not properly considered by the Labour Court.
Therefore, in the first round the matter was remanded by the High Court, and the High Court made the following observations: 648 "The relevant notification applied the provisions of the Act to undertaking in the industries specified in the schedule wherein the number of employees, was or is more than one hundred.
Evidently, it had no application to smaller establishments of notified industries that employed less than 100 persons.
That being so, it is plain enough that the Courts below misdirected themselves by taking into account the total number of the employees of the Board without regard to the consideration whether they were employed or not in the establishment relating to textiles and the findings recorded by them on the jurisdictional facts do not bear examination and cannot be sustained.
Since the facts bearing on the question have not been properly ascertained it would be right to set aside the order of the Industrial Court and leave it to that Court to decide these facts afresh with due regard to all the relevant provisions of the M.P. Industrial Relations Act, 1960 and then to dispose of the claim made by the respondent 3 on merits.
We may, even at this stage, point out that the High Court could have set aside the order of the Labour Court and the Industrial Court, on the ground that the Board did not, according to it, satisfy the definition of industry without remanding the case to the Industrial Court to determine the number of employees.
We are making this statement in view of an objection taken by the appellant 's counsel before us that the respondent cannot, in this appeal, reagitate that question, he having been concluded by the remand order which was restricted only to the number of employees in the Board.
After remand, the Industrial Court considered the question again.
The Industrial Court understood the remand order and, according to us, rightly, as follows: "After the remand the parties have adduced evidence which is common in both cases.
The exact question I am called upon to answer is, the number of employees employed by the parishad in its textiles activity and not all other activities such as Oil, Paper Carpentry, Gur Tannery, Pottery etc.
me best evidence will be the record kept with the parishad.
The oral evidence will not be of much help, though it may have some additional value.
649 13.
After discussing the evidence in detail, the Industrial Court came to the conclusion thus: "For all these reasons, I hold that in the textile activity of the Board (parishad) the number of employees is or has been over and more than 100 from 1.12.59 to 31.12.60, vide Ex D/1 and, therefore the employees had a right to file the application under the Act.
The Industrial Court again held in favour of the appellant The matter went to the High Court again in the Second round, at the instance of the Board.
On the question of number of employees in the Board, in paragraphs 10 & 11 of the Judgment, the High Court observed thus: ".
Thus from the statement of this witness, there can be no doubt that there were more than 100 persons in all at the wool weaving centres in the State and at some of the centres the number was more than 100.
The witness further stated that there are 16 industries under the Board, such as Paper Industry, Soap Industry, Khadi Industry, Wool Industry and so on.
Similarly, in the connected case, namely M.P. No. 713 of 1971, in pursuance of the remand order, the statement of Gunadeo Patil (Petitioner 's Annexure F) and the other witness, Sadashiv Patil (Petitioner 's Annexure f/1) were recorded.
The statements of these two witnesses were similar to the statements in the main case.
(The High Court was dealing with the case of two employees in Misc.
Petition No. 712/1971 and 713/1971 and that is why mention is MADE about the connected case.) 15.
After holding thus, the High Court spent considerable part of the Judgment for considering the kindred question whether the board was an industry or not.
The appellant 's counsel raised an objection that it was not open to raise this question as it was covered by the remand order (which was confined only to the number of employees).
In our view, this objection is well founded and has to be upheld.
According to us, the appellant is entitled to succeed on this ground alone.
However, we would like to answer 650 the other question also for the purpose of completion of this Judgment and to set at rest possible future controversies on the subject .
The definition clause in the Act is far from satisfactory.
The definition of word 'industry ' in Section 2(19) and the word 'undertaking ' in Section 2(33) does not make happy reading but this unhappy phraseology need not vex us.
If from the evidence available, we can say, that the Board carries on trade or business, it would straightaway become an industry under the Act.
We have already seen that one of the functions of the Board is to support, encourage, assist and carry on Khadi and Village Industries and in the matters incidental to such trade or BUSINESS.
What the Board does is to supply raw wool to Cooperative Societies, so that the Societies can engage themselves in useful work.
The Societies after weaving raw wool, convert them into spun blankets and supply them to the Board.
The blankets so spun are not the properties of the Societies.
They have to be given back to the Board.
The blankets so supplied from various centres to the Board, have necessarily to be sold in the open market.
This act of sale would clearly come within the definition of the word trade or business as contemplated in Section 2 (19) of the Act.
This finding of ours is supported by the evidence in the case also.
The appellant in his evidence stated that at the centre where he was posted, weaving of woolen blankets was done by the Societies and other centres constituted at various places and the woven blankets were supplied back to the Board.
Three witnesses were examined on behalf of the Board.
Choudhary, the first witness and Sh.
Patil the next witness, admitted that the spinning and weaving work of cotton and woolen cloth was got done by the Board through various Societies.
These two said witnesses admitted that the looms belonged to the Board and the Board supplied wool and other materials and implements and sold manufactured goods after obtaining them from the Societies.
They also made an important admission that the Society could not sell the goods prepared out of the wool supplied by the Board to anybody else.
The third witness also supported this case though differed from the second witness and stated that the Board extended marketing facilities to the Societies.
We thought it necessary to refer to the evidence in the case to disabuse an impression attempted to be created that the Board did not sell the blankets it got from the various societies spun out of the wool supplied to them.
There is a clear admission by one witness that the Societies cannot sell the blankets 651 prepared out of the wool supplied by the Board to any one else.
No argument is necessary to hold that the blankets received by the Board from various centres have only to be sold and not used by the Board for its own purpose.
this evidence the conclusion is irresistible that the Board engages itself in the business of selling blankets.
It has therefore to be held that the Board is an industry within the meaning of the Act.
The appellant is entitled to succeed on both the grounds.
We set aside the order passed by the High Court and restore the orders passed by the labour Court and the Industrial Court.
The appellant will get his cost from the first Respondent quantified at Rs. 2,500.
A.P.J. Appeal allowed.
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The appellant was appointed as Store Keeper cum Accountant in one of the branches of the Madhya Pradesh Khadi and Village Industries Board, a body corporate constituted under the M.P. Khadi and Village Industries Act, 1959.
His services were terminated by an Order dated 23.9.1964 after giving one month 's notice.
The termination Was challenged before the Labour Court as amounting to retrenchment because it hat been passed without complying with provisions of the M.P. Industrial Relations Act, 1960, the charge sheet that was given to him on 27.4.1964 was based on false and baseless grounds and no enquiry was held prior to removal.
The appellant claimed reinstatement with full wages.
The Respondent Board contested the application contending that the Board was not an industry and that neither the M.P. Industrial Relations Act, 1960 nor the applied to it.
The Labour Court held that the termination of the services of the appellant amounted to retrenchment, set aside the Order of termination and directed reinstatement with half salary from the date of the Order till reinstatement.
The Board preferred a revision.
The Industrial Court affirm ed the order of the Labour Court and dismissed the revision petition.
642 The Board filed a petition under article 225 and 227.
The High Court allowed the writ petition, quashed the order of the Industrial Court and remitted the case to it to decide the facts afresh.
The Industrial Court after taking fresh evidence, again held in favour of the appellant, reaffirming its previous decision to reinstate the appellant.
The Board again moved the High Court, which set aside the orders of the Industrial Court and the Labour Court on the ground that they acted without jurisdiction.
The appellant appealed to this Court by certificate which was resisted by the Board on two grounds: (i) that it is not an industry within the meaning of the Act and (ii) that it does not employ more than 100 persons.
Allowing the appeal of the appellant employee, ^ HELD: 1.
The order passed by the High Court is set aside and that of the Labour Court and the Industrial Court are restored.
[651 B C] 2.
The M.P. Industrial Relations Act, 1960 is a separate Act in the State of Madhya Pradesh to regulate the relations of employees in certain matters and makes provisions for settlement of Industrial disputes.
Any concern, to become an industry, has to satisfy the definitions of "industry" and "undertaking" as contained in sections 2(19) and 2(33) thereof.
Such concerns have to satisfy yet another condition to attract the provisions of the said Act which relates to the number of the employees the concern employs.
Notification No. 9952 XVI dated 31st December, 1960 issued under sub 8.
(3) of 8. 1 of the Act, makes the provisions of the Act applicable only to an undertaking in the industries specified in the Schedule wherein the number of the employees on any date during Twelve months preceeding or on the date of the notification or any day thereafter was or is more than one hundred.
In the instant case, the evidence on record admits of no doubt that the Board employed more than 100 persons.
[645 A H; 646 A 4; 647 C] 3.
One of the functions of the Board under 8.
14 of the M.P. Khadi and Village Industries Act 1959 is "to support, encourage, assist and carry on Khadi and Village Industries and in the matters incidental to such trade or business".
The evidence shows that the Board supplies raw wool to Co operative Societies, so 643 that the Societies can engage themselves in useful work.
The Society after weaving raw wool, convert them into spun blankets and supply them to the Board.
The blankets so spun are not the properties of the Societies.
They have to be given back to the Board.
The blankets so supplied from various centres to the Board, have necessarily to be sold in the open market.
This act of sale would clearly come within the definition of the word 'trade ' or 'business ' as contemplated in Section 2(19) of the Act.
m e conclusion is, therefore, irresistible that the Board engages itself in the business of selling blankets.
It has, therefore, to be held that the Board is an 'industry ' within the meaning of the Act.
[650 B D; 651 A B]
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“It is therefore prayed that your Lordships would be graciously
pleased to admit this writ application and issue RULE NISI
calling upon the Opposite Parties to show cause as to why the
petitioners shall not be awarded compensation of Rs.3,00,000/-
(Rupees three lakh) only immediately as claimed by them.
And if the Opposite Parties do not show cause or show
insufficient cause, then issue a writ of Mandamus thereby
directing the Opposite Parties to pay a sum of Rs.3,00,000/-
(Rupees three lakh) only as compensation to the petitioners
within a stipulated period.
And further direct the Opposite Parties to pay the interest @
12% per annum from the date of accident till the date of payment
and litigation expenses to the petitioners….”
2. Background involving the case is on 10.6.2001 during morning
hour deceased, a poor man while cutting bamboo Kanis and its branches
in order to repair his thatched house, he came in contact with the live
electric line, which was in hanging position at lower level. Coming in
contact, the deceased died instantly. F.I.R. being lodged, a case was
registered, vide U.D.Case No.8 of 2001 corresponding to U.D.G.R. Case
No.134 of 2001, vide Annexure-1. Police took up investigation. After
completion of inquest process, the dead body was sent to the District
Hospital, Jajpur for post-mortem. Final report was prepared indicating
cause of death due to asphyxia caused by coming in contact with live
electric wire otherwise suffered on account of electric shock. Document
to this extent was filed, vide Annexure-2 & 3. On the premises that the
deceased was strong and stout and middle aged man and was earning
about Rs.4000/- per month from his agricultural land and Bhaga Chasi
and seasonal business and through breeding domestic animals like cows
and goats also involving sale of milk. His family members, such wife and
son approached several times to the Department for appropriate
compensation and finding no respite compelled to file the present Writ
Petition ultimately in 2010.
3. The Writ Petition was entertained in 2011, undisputedly, disclosing
pendency of a representation with the Electric Department involved
herein, vide Annexure-4 series. In spite of notice, there is no counter as of
now. However, on the basis of pleading and documents herein, the claim
of the Petitioners being objected by Mr.Mohanty, learned counsel for the
Establishment in charge presently on the premises that there has been no
establishment of allegation that the deceased has died coming in contact
of live electric wire belonging to the Department.
4. Keeping in view the claim and counter claim, this Court taking into
account the F.I.R. finds, the F.I.R. has a clear allegation of death coming
in contact with the live electric wire hanging at a lower level. The inquest
report as well as post-mortem report reveals the reason of coming in
contact with the electric wire and death out of electric shock. This Court
finds, a representation was also filed by the Claimants requesting for
grant of appropriate compensation appended to as Annexure-4 series
since 12.7.2001. There is no filing of counter. There is no denial of any of
the averments by the Petitioners herein including submission of
representation even. Further for there is involvement of an F.I.R., it is not
possible that for the disclosures through F.I.R., the Department did not
choose at least to investigate such death. Besides, both the inquest report
and the post-mortem report also confirm the death of the deceased
coming in contact with the live wire of the Department undisputedly. The
representation claiming compensation was filed in 2001. It is not
expected that the Department shut down its eyes even after filing of Writ
Petition forget if to take steps for minimal enquiry on a representation
being filed at least to have a fact finding report. The Writ Petition was
even filed in 2010. There is no response to the pleading herein even
assuming there may be requirement of adjudication of the issue of
likelihood of the Electricity Department for loss of time of 20 years in the
meantime, it may remain futile in asking the Petitioners to go to the Civil
Court at this stage.
5. At this stage, this Court finds, in similar situation, this Court in
disposal of OJC No.15558/97 by judgment dated 14.11.2014 has come to
allow the Writ Application of this nature. Case of the Petitioners also gets
support of another decision of this Court in Bhagaban Rout & anr. vrs.
Executive Engineer, CESCO, Salipur reported in 2023(I) OLR 188,
which is decided based on number of judgments of the Hon’ble apex
Court. In the process, this Court was pleased to grant compensation, as
6. Keeping in view the position settled with the above judgment being
the support of judgments of the Hon’ble apex Court, this Court finds, the
Petitioners at great suffering end are entitled to compensation.
In the process, taking into consideration the age of the deceased,
the position of both the Claimants, Petitioner No.1 losing her husband at
the age of 37 years and keeping in view the age of her son being 15 years
at the time of death of the deceased though there is no proof of income of
the deceased except a bald statement that the deceased was earning
Rs.4000/- at the relevant point of time, this Court directs, at least a sum of
Rs.2,00,000/- (rupees two lakh) be paid to the Claimants to mitigate the
loss on account of suffering for all these years on account of the death of
the deceased, the sole Earner. The amount, as directed, be released by the
Company taking over NESCO, i.e., Tata Power Northern Odisha
Distribution Ltd., as undertaken, within a period of one and half months
from the date of communication of this judgment, failing which the
Petitioners will be entitled to interest @ 7% per annum from the date of
death of the deceased.
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The Orissa High Court has recently ordered two lakhs’ rupees compensation to the wife and son of a man who died after coming in contact with a live electric wire in 2001. While allowing the writ petition, the Single Judge Bench of Justice Biswanath Rath reprimanded the electricity department and said: “The representation claiming compensation was filed in 2001. It is not...
The Orissa High Court has recently ordered two lakhs’ rupees compensation to the wife and son of a man who died after coming in contact with a live electric wire in 2001. While allowing the writ petition, the Single Judge Bench of Justice Biswanath Rath reprimanded the electricity department and said:
“The representation claiming compensation was filed in 2001. It is not expected that the Department shut down its eyes even after filing of Writ Petition forget if to take steps for minimal enquiry on a representation being filed at least to have a fact finding report. The Writ Petition was even filed in 2010.”
Background
On 10.6.2001, the deceased-victim came in contact with a live electric line, which was in hanging position at very a lower level, while cutting bamboo kanis and branches to repair his thatched house. He died instantly. An FIR was lodged and the police took up investigation. After completion of inquest process, the dead body was sent to the District Hospital, Jajpur for post-mortem. The report attributed the cause of death to asphyxia which occurred as a result of coming in contact with live electric wire.
It was submitted that the deceased was a strong, stout and middle-aged man and was earning about Rs. 4000/- per month from his agricultural land, shared cultivation, seasonal business and through breeding domestic animals like cows and goats. His wife and son approached the department several times for appropriate compensation. However, after failing to obtain any relief, they were constrained to file the instant writ petition in 2010.
Mr. P.K. Mohanty, senior counsel for the electricity department contended that it has not been established that the deceased has died after coming in contact with live electric wire belonging to the department. Therefore, he argued, no compensation can be granted to the petitioners.
Court’s Observations
The Court noted that the inquest report as well as the post-mortem report reveal that the death occurred due to electric shock after the victim came in contact with live electric wire. Further it found that a representation was also filed by the petitioners requesting for grant of appropriate compensation on 12.7.2001. Interestingly, the respondents did not deny any of the averments made by the petitioners including submission of the above representation.
The Court further observed that even assuming there is any requirement for adjudication of the issue by a Civil Court, the same cannot be directed at this point of time as 20 long years have already elapsed in the meantime.
The Bench found that in a similar situation, the Court had granted relief to an applicant in OJC No. 15558/1997, by judgment dated 14.11.2014. Further, it held that the case of the petitioners also gets support from another recent decision of the High Court in Bhagaban Rout & Anr. v. Executive Engineer, CESCO, Salipur, 2023(I) OLR 188, which was decided after relying on a number of judgments of the Apex Court. Therein, the Court had granted appropriate compensation.
Having regard for the aforesaid, the Court concluded:
“In the process, taking into consideration the age of the deceased, the position of both the Claimants, Petitioner No.1 losing her husband at the age of 37 years and keeping in view the age of her son being 15 years at the time of death of the deceased though there is no proof of income of the deceased except a bald statement that the deceased was earning Rs.4000/- at the relevant point of time, this Court directs, at least a sum of Rs.2,00,000/- (rupees two lakh) be paid to the Claimants to mitigate the loss on account of suffering for all these years on account of the death of the deceased, the sole Earner.”
Case Title: Soli @ Sulachana Jena & Anr. v. Chief Executive Officer, NESCO (Electrical), Balasore & Anr.
Case No.: W.P.(C) No. 23491 of 2010
Judgment Dated: 3rd January 2023
Coram: Biswanath Rath, J.
Counsel for the Petitioners: Mr. D.C. Swain, Advocate
Counsel for the Respondents: Mr. P.K. Mohanty, Senior Advocate
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Appeals Nos. 1235 to 1237 of 1966:.
Appeals from the judgment and decree dated September 20, 1963 of the Kerala High Court in Appeal Suit No. 304 of 1962.
Rameshwar Nath, Mahinder Narain and Swaranjit Sodhi, for ' the appellants (in C.A. No. 1235 of 1966) and respondent No, 11 (in C.As.
Nos. 1236 and 1237 of 1966).
K. Javaram and R. Thiagarajan, for the appellants (in C.As.
Nos. 1236 and 1237 of 1966) and respondents Nos. 1 to 7 (in C.A. No. 1235 of 1966).
M.R.K. Pillai, for respondent No. 3 (.in C.As.
1236and 1237 of 1966) and respondent No. 9 (in C.A. No. 1235 of 1966).
The Judgment of the Court was delivered by Ramaswami, J.
KavaIappara estate is an impartible estate.
Succession thereto is governed by the Marumakkathayam law, that is to say, the eldest member of the family by female descent will succeed to the Gaddi and hold the estate.
The parties to the suit are members of the Kavalappara Swaroopam, the 1st defendant being the Sthanee.
The 7th defendant is the mother and the 9th defendant the elder brother of the plaintiffs.
The plaintiffs claimed maintenance based on family custom entitling the members ' to maintenance out of the entire income of the Sthanam.
Past maintenance was claimed for each of the plaintiffs 1 to 4 for 12 years at Rs. 500/ per mensem; for plaintiff No. 5 at the above rate and for plaintiffs 6 to 8 at Rs. 400/ per mensem from their respective dates of birth.
Future maintenance from date of suit was also claimed at the aforesaid rates.
The suit was contested by the 1st defendant on the ground that the plaintiffs had no enforceable legal right to maintenance from the Sthanam estate; that from olden times two kalams, Palachithara and Velliyad of the Sthanam estate had been set apart for the maintenance of the 38 junior members of the Swaroopam that the plaintiffs have to look to those two kalams only for their maintenance "as deposed by him in the former suit" in O.S. No. 46 of 1934; that even after the Privy Council had decided O.S. No. 46 of 1934 declaring him to be absolute owner of the Sthanam properties, he had been paying maintenance out of affection; that though there was no recognised custom binding on him, he had been adopting the generosity of the predecessor Sthanees and paying to the junior members of the Swaroopam Rs. 17,000/ annually and that the plaintiffs had no right to claim income from the Sthanam estate.
The trial court granted maintenance for the period claimed until the date of decree at the rate of Rs. 250/ per mensem for each of the plaintiffs charged on the corpus and income of the Sthanam estate.
The first defendant appealed to the Kerala High Court in A.S. No. 304 of 1962.
The plaintiffs preferred cross objections.
The High Court partly allowed the appeal negativing the plaintiffs ' claim for arrears of maintenance and modified the trial court 's decree.
The High Court dismissed the cross object.ions of the plaintiffs.
C.A. No. 1235 of 1966 is brought to this Court by certificate on behalf of defendant No. 1 and C.As. 1236 and 1237 of 1966 are brought to this Court by certificate on behalf of plaintiffs.
The first question to be considered is whether the plaintiffs are entitled to maintenance out of the Sthanam properties as a matter of family custom.
It is argued on behalf of the 1st defendant that the maintenance allowance was previously given by the Sthanee only as an act of generosity and not in recognition of any legal claim of junior members of the Swaroopam.
In any case it was contended that the practice prevailing in the past was that the income from two kalams "Pilachithara" and "Velliyad" was given to the Amma Nethiar for the benefit of the members of the Swaroopam and that the members of the Swaroopam could not insist on anything more than the same as a matter of right.
In our opinion there is no justification for this argument.
There is sufficient evidence on the record of the case to support the finding of the Subordinate Judge and the High Court that the plaintiffs have established a customary right of maintenance from the Sthanam properties.
In the first place there are two decisions O.S. 991 and 992 of the year 1817 granting a decree for maintenance to two members of the Kavalppara Sthanam (Exhibits A 57 and A 58).
It was contended for the Sthanee in those suits that separate properties had been allotted to Amma Nethiar to maintain all the females and minors in the Swaroopam, that only major males in the Swaroopam can claim separate maintenance from him and that those members who chose to live away from the palace had no right to claim maintenance.
These contentions were not accepted by the Court which gave each of the plaintiffs a money 39 decree for maintenance both past and future.
The material portions of the two decisions are quoted below: "On a careful consideration of all the particulars referred to and in view of the circumstances that the Plaintiff went separate from the tarwad members in disregard of the orders of Defendant who is the present Moopil Nair of Kavalppara and in opposition to the status, ranks and dignities (Sthanamanams) and propriety of Sthanam and merely for their own pleasure and that, even after the Moopu had caused negotiations to be made through Brahmins and other respectable persons under his (Moopu 's) written authority with a view to avoid the Moopu (Sthanam) falling into disgrace (as a result of family) dissension and in view of the fact that, in spite of the efforts of the said persons, the plaintiff did not return and live together (have common residence and mess), it is only proper, as the Defendant contends in his written statement, that it is the Amma Nethiar who should provide for the maintenance of the plaintiff along with that of the lady members.
The plaintiff 's witnesses Cherumpatte Manakkal Vasudevan Bhattathiripad and Pannasseri Adisseripad state on solemn affirmation that, since it is the Moopu that manages the properties forming the assets of the Swaroopam (esstate) and received 16,000 and old fanams being 2 per 10 from the Government if the next nephew as well as the heir and next of kin of the Moopil Nair were to live separate from the Moopil Nair and demand maintenance for whatever reasons it might be, such person ought to be paid maintenance expenses and supported as befitting the Sthanamanam (rank and dignity) of such person and not necessary (sic).
The plaintiff and his mother Valiakava Nethiar left Kavalappara on the 16th Medom 992 (26th April 1817) and went to and stayed at Mangalathu, Panambala Kode and Melarkode for reasons not apparent.
Under the orders of the Defendant maintenance had been paid to plaintiff, the said Nethiar and 20 persons from that date, 16th of Medom (26th of April) to the month of Edavam (May June).
Thereafter the defendant ordered payment of maintenance to 16 persons from 1st Mithunam (13th June) and to 12 persons thereafter.
Subsequently the Moopu ordered that maintenance need be paid for 8 persons only including (the plaintiff).
The written statement (deposition) does not make any mention as to nor have the plaintiff 's witnesses proved as to what expenses the sum of claimed in the plaint relate to.
It is therefore 40 decreed that the Defendant do pay plaintiff 450 fanams being the maintenance expenses for 3 months as evidenced by the plaintiff 's witnesses after deducting 25 (? ) fanams from the amount claimed in the plaint, that the Defendant do also pay the plaintiff 's future maintenance at the rate of 150 fanams a month as mentioned above and that the plaintiff and Defendant do pay and receive proportionate costs.
" Ext.
A 58: "On looking into the matters mentioned above, there is nothing to show on what ground the plaintiff had gone and lived separate from the tarwad members of her own accord in disregard of the order of the present Kavalappara Moopil Nair and without considering the status, dignity and propriety (of the Sthanam).
Even though the Defendant 's contention in his written statement that it is the Amma Nethiar who should look after the maintenance of the plaintiff in as much as the plaintiff did not return to and stay in the Kavalppara in spite of the attempts made through the Brahmins and other respectable persons to avoid the Moopu getting a bad name owing to a rumour getting afloat that there is dissension among the members as a result of the plaintiffs action, is a proper only, the court is of the opinion that, if the members who are related to the Moopil Nair as his direct sister and direct nephew like the 3rd Nair and who are closely related together as heirs to the properties live separate for any reason whatsoever and ask for their maintenance, the Moopil Nair ought to have ordered payment of their maintenance, amounts and maintained them in accordance with their status in the Sthanam.
Instead of doing this, the Moopil Nair cannot stop the maintenance paid to the Anandaravas who may be of bad temperament.
The plaintiff 's and defendant 's witnesses prove that the plaintiff had been paid for the maintenance from the Medom 992 (April May, 1817) when she went separate until the 30th of Karkitakam (about the 16th of August) and that the Moopil Nair had stopped paying for the maintenance thereafter.
From the evidence of the plaintiff 's witnesses it has been proved that the plaintiff and the persons staying with her would all together require 3 fanams for maintenance expenses and 1 fanam for extra expenses for a day.
It, therefore, does not appear from the oral and documentary evidence that they would require anything more than fanams for the maintenance for the 3 months from 41 the 1st of Chingam (14th August) to the 1st of Vrichigam (14th November) the date of the suit, calculating at 120 fanams a month.
It is not clear from the plaint as to what expenses the sum of Rs. 150 claimed in the plaint relates.
I therefore direct the defendant to pay to plaintiff a sum of Rs. 360 fanams after deducting 165 fanams from the amount claimed by the plaintiff and I also direct that the Defendant do pay to the plaintiff the future maintenance at the rate of 120 fanams a month and that the plaintiff and Defendant do pay and receive proportionate costs.
" Exhibit B 1 is a deposition given in O.S. 2 of 1859 by the then Sthanee of the Kavalappara Swaroopam.
The deposition is marked as exhibit 67(b) in O.S. 46 of 1934 and reads as follows: "The properties belong to the Sthanam only.
Two Kalams (lands attached to two granaries) have been set apart for the maintenance of the members of the tarwad.
And it has been the practice that the rest of the members maintain themselves therefrom.
It has been so separately allotted from ancient times.
When precisely, is not known.
It could be seen from the accounts that It has been so set apart.
It is only if I think it necessary to take back what has been so set apart, that I should give them their maintenance expenses .
I have not enquired whether there were any other places where the entire properties and the Malikhan belonged to the Sthanam only and the tarwad has no separate property of its own." [The High Court has observed that this translation is not correct and that 'kalam ' denotes a division of the estate for purposes of collecting rents from the tenants.
Again a true translation of the first sentence in the above quotation would be 'only the Sthanam has properties and no.t the properties belong to the Sthanam only".] This deposition shows clearly that the Sthanee in office admitted over a century ago his obligation to maintain junior members of the Swaroopam.
The next piece of evidence is the deposition of the Sthanee in O.S. No. 46 of 1934.
In the present case the 1st defendant did not give evidence.
He admitted that his deposition in the previous suit O.S. No. 46 of 1934 contained a true statement of facts.
The previous deposit;on of the 1st defendant in exhibit B 13 and reads as follows: "4.
The eldest lady in the Swaroopam is called Aroma Nethiyar.
Some properties had been allotted for the L 1 Sup CI/70 4 42 maintenance of the members in the name of Amma Nethiar . .
Those properties had been allotted in ancient times in her name from the properties of the Moopil Nair.
The Moopil Nair was originally a ruling chief.
The grant of properties in the name of Amma Nethiyar should have been made when the Moopil Nair was a ruling chief.
The present Amma Nethiyar has even now the right to manage the properties which had been so allotted.
It was in ignorance of such allotment that my eider brother and after him, myself managed those properties along with the stanam properties.
I am willing to hand back the management of those properties to Amma Nethiyar.
If those properties are handed back, I shall no more be liable to pay the maintenance of the members.
" In his written statement defendant No. 1 made the following admission in para 6: " . .
The defendant does not deny that the members of the Swaroopam are entitled to be maintained by the Moopil Nayar by virtue of custom.
But that does not make him any the less a Stani nor detract from the Stanom character of the properties.
" In our opinion the evidence adduced in the case sufficiently proves a custom in Kavalappara Estate by which the Sthanee was legally obliged to give maintenance to junior members of the family.
It is possible that the practice of paying maintenance to junior members originated as an act of generosity of the previous Sthanee.
But it has continued without interruption for such a length of time that it has acquired the character of a legal right.
On behalf of defendant No. 1 it was contended that the Judicial Committee had said that the payment for maintenance was an act of generosity on the part of the Sthanee and was not a legal right of the junior members.
Reference was made to the following passage in the judgment in Kochunni vs Kuttanunni(1): "The maintenance claimed was a customary one originating in ancient times when admittedly the Muppil Nair was a Sthani in possession of Sthanam rights.
There is no evidence as to how the maintenance allowance arose, whether it was given in recognition of a legal claim or was only a generous provision made for the benefit of the women and younger members, which the Raja was perfectly competent to do out of property (1) A.I.R. 1948(P.C.).47at p. 52. 43 which he regarded exclusively as his own.
The claims of generosity often prevail over a sense of ownership, especially when the recipient of the bounty is a near relative in a dependent position.
" In our opinion this argument proceeds on a misreading of the judgment of the Judicial Committee.
The Judicial Committee has observed that the claim for maintenance was based on customary rights and was not ex gratia payment.
In the course of the judgment Mr. M.R. Jayakar states: "The documents material in this connection are Exs. 'O ' and 'P ' being the decree and judgment respectively in two suits for maintenance brought in the year 1817 against the then Muppil Nair, the first by the then third Nair, a minor, and the second by his mother.
It is material to note what the issue was and what was decreed in these suits.
In the pleadings of both the parties the claim for maintenance was stated to be based on customary rights.
The plaintiff alleged it is 'the usual custom ' that Nair should pay the maintenance.
The defendant admitted 'the custom ' but denied his liability to pay the maintenance on the ground that his ancestors in ancient times had already settled in accordance with the 'usual practice ' certain lands on a lady called Amma Nethiar for the maintenance of herself and the junior members, and that the maintenance claimed in the suit, even if it was due, which he denied, should primarily come out of the lands so set aside in previous times.
He also denied his liability on the ground that the minor and his mother, contrary to his advice and that of the well wishers of the family had gone away to live elsewhere.
The defendant denied his liability also on other grounds which it is unnecessary to consider in tiffs case.
He, however, expressed his willingness to supplement the maintenance, if the Court thought proper, on particular occasions.
The Judge, while admitting that it was the responsibility of Amma Nethiar to maintain the plaintiffs, held that as the plaintiffs stood in the very near relationship of sister and nephew to the defendant and were his next heirs it was 'only proper ' that the defendant should grant them a periodical allowance for past and future maintenance.
In the light of the pleadings set out above, the admissions made therein by bolt sides about the customary nature of the maintenance and the words it was 'only proper ' in the judgment, their Lordships cannot accept this as a decision contra 44 dicting the incidents of the property in the hands of the Muppil Nair.
" In any event the question as to whether the right of maintenance was given by the Sthanee in recognition of the legal claim or whether it was an ex gratia payment was not directly in issue in the previous suit.
The question for determination was whether the existence of maintenance allowance was inconsistent with the Sthanam character of the properties in possession of the then Moopil Nair.
On this point it was held by the Judicial Committee that the payment of the maintenance allowance for junior members was not inconsistent with the Sthanam character of the property on which it was grounded.
At p. 53 of the Report Mr. Jayakar has observed; "Their Lordships think that in the proceedings of these two cases there is hardly anything to support the view of the High Court that the decrees in these two suits are inconsistent with the Sthanam character of the properties in the possession of the then Muppil Nair or that he did anything which could be regarded as an admission that the properties in his hands were not Sthanam properties.
On the question whether and how far the existence of a maintenance allowance is inconsistent with the Sthanam character of the property, on which it is grounded, the following passage in Sundata Aiyar 's book (p. 255, bottom) may be noted: "The point of view suggested in some cases in which the question has arisen is that the members of the family have rights of maintenance in the property of the Sthanam itself: that is practically assimilating these properties to impartible zemindaries before the recent cases. ' Besides, the Sthanam in dispute in this case belonged, as stated above, to the second category, and in such a case the existence of maintenance allowance would be perhaps not so inconsistent as in the case of a Sthanam of the third class, carved out of the family property for the support and dignity of its senior member.
" The question at issue before the Judicial Committee was whether the Kavalppara Estate was a Tarawad or joint family property belonging to the joint family or whether the properties appertained to the Sthanam and belonged to defendant No. 1 as a Sthanee exclusively.
The question as to the right of maintenance of the plaintiffs was incidentally gone into and it was ultimately held that the existence of such maintenance fight of junior members of 45 the family was not inconsistent with the Sthanam character of the properties.
In our opinion the High Court.
was right in its finding that the plaintiffs have established their right to maintenance from the Sthanam properties as a matter of custom.
Counsel on behalf of defendant No. 1 has been unable to make good his argument on this aspect of the case.
An alleged custom, in order to be.
valid, must be proved by testimony to have been obeyed from consciousness of its obligatory character.
A mere convention between family members or an arrangement by mutual consent for peace and convenience cannot be recognised as custom.
In Ramroa vs Yeshwantrao(1) it was proved that it had been the practice in a Deshpande Vatandar 's family for over a hundred and fifty years, without interruption or dispute of any kind whatever, to leave the performance of the services of the vatan and the bulk of the property in the hands of the eider branch and to provide the younger branches with maintenance only.
It was held that such practice was due in its origin to a local or family usage and not to a mere arrangement and that it was therefore to be recognized and acted upon as a legal and valid custom.
In order, therefore, that a custom should acquire the character of law the custom must be accompanied by the intellectual element, the opinion necessitatis "the conviction on the part of those who use a custom that it is obligatory and not merely optional".
In other words the mark which distinguishes custom in the legal sense from mere convention is the opinion necessitatis, the recognition that there is authority behind it. "In the modern state the custom, if legally recognized has behind it the court and an apparatus of coercion.
In primitive communities we do not find authority necessarily organized in the institutional sense.
We must ask, 'what is the ultimate power in the group to settle conflicts or to prescribe rules ? ' It may be the old men, the military group, the priests, or merely a general consensus of opinion.
But the opinion necessitatis can come into existence only when the community in some way throws its force behind the particular rules.
" (See G.W. Paton Jurisprudence 3rd edn.
p. 164) We have shown in the present case that the plaintiffs have established their right to maintenance from the Sthanam properties not merely as an act of generosity on the part of the Sthanee but the (1) I.L.R. 10 Bombay 327.
payment of maintenance has been made by the Sthanee as a matter of legal obligation.
The next question is whether the plaintiffs are entitled to arrears of maintenance.
It appears that after the decision of the Privy Council declaring the ist defendant as exclusive owner of properties he has paid Rs. 17,000 annually to the Amma Nethiar for the maintenance of the junior members of the Swaroopam.
It is not disputed by the plaintiffs that such payments were made before the institution of the present suit.
Even after the institution of the suit the 1st defendant had been depositing annually Rs. 25,000 in court for the maintenance of the plaintiffs and other members of the Swaroopam as ordered by the trial court.
It was alleged by the plaintiffs that they have not been paid any maintenance.
But the High Court found that maintenance had been given to the plaintiffs ' mother with whom plaintiffs had been living.
For these reasons the High Court held that there was no ground for awarding arrears to maintenance before the date of suit.
We see no reason for taking a view different from that of the High Court in the matter.
As regards the rate of maintenance the trial court granted decree at the rate of Rs. 250/ p.m. for every one of the plaintiffs irrespective of age.
It has been found by the trial court that the net income of the Swaroopam was about Rs. 2 lakhs per annum.
It is admitted that the income of the Swaroopam consists mostly of rents from cultivating tenants.
With the abolition of perquisites and the fixation of fair rents by recent tenancy legislation there appears to have been a reduction of the net income of the Sthanam in recent years.
It also appears that the plaintiffs are the only minor members in the family and excepting the 7th defendant who is their mother the defendants are males whose children would not be members of the Swaroopam.
In the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948 compensation to members of the family entitled to maintenance out of an impartible estate is fixed at 1/5 of what is paid for the estate in view of these considerations the High Court held that the provision of Rs. 250/ p.m. to each of the plaintiffs was adequate.
The High Court, however, directed that it is open to the parties after two years to move the trial court for variation in the rate of maintenance fixed on the ground of altered circumstances of the Estate.
Having heard the parties we see no reason for interfering with the judgment of the High Court in this matter.
In the result we dismiss all the three appeals (Civil Appeals Nos. 1235, 1236 and 1237 of 1966).
There will be no order as to costs with regard to any of the appeals.
G.C. Appeals dismissed.
|
Defendant No. 1 was the Sthanee of Kavalappara estate which was an impartible estate governed by Marumakkathayam law.
The plaintiffs claimed maintenance based on a family custom entitling the members to maintenance out of the entire income of the Sthanam.
Past maintenance was claimed as also future maintenance from the date of the suit.
Defendant No. 1 denied that the plaintiffs had any right based on custom as claimed by them; according to him from older times two kalams of the Sthanam had been set apart for their maintenance.
He claimed that the Privy Council in suit No. 46 of 1934 had declared him absolute owner of the Sthanam properties but despite that, out of generosity only he had been paying to the junior members of the Swaroopam Rs. 17.000/ annually.
The trial court granted maintenance to the plaintiffs for the period claimed at the rate of Rs. 250/ per mensem for each of the plaintiffs.
Defendant No. 1 appealed to the High Court and the plaintiffs filed cross objections as the rate of maintenance allowed to them was lower than they had claimed.
The High Court partly allowed the appeal negativing the plaintiffs ' claim for arrears of maintenance, and dismissed the cross objections of the plaintiffs.
Both the parties appealed to this Court.
The questions that fell for consideration were: (i) whether the right to maintenance as claimed by the plaintiffs was based on custom; (ii) whether the High Court was right in disallowing the claim of the plaintiffs to arrears of maintenance; (iii) whether the rate of maintenance as ordered by the trial court and ' confirmed by the High Court was justified.
HELD: (i) An alleged custom, in order to be valid, must be proved by testimony to have been obeyed from consciousness of its obligatory character.
A mere convention between family members or an arrangement by mutual consent for peace and convenience cannot be recognised as custom.
In order that a custom should acquire the character of law the custom must be accompanied by the intellectual element, the opinion necessitatis.
the recognition that there is authority behind it.
[45 B C; D E] Rarnrao vs Yeshwantrao, I.L.R. , applied.
In the present case the evidence sufficiently proved a custom in Kavalappara estate by which the Sthanee was legally obliged to give maintenance to junior members of the family.
It was possible that the practice of paying maintenance to junior members originated as an act of generosity of the previous Sthanee.
But it had continued without interruption for such a length of time that it had acquired the character of a legal right.
[42] Kochuni vs Kuttanunnt, A.I.R. 1948 (P.C.) 47, 52, explained.
37 (ii) Although it had been alleged by the plaintiffs that they had not been paid any maintenance, the High Court had ' found that maintenance had been given to the plaintiffs ' mother with whom the plaintiffs had been living.
The High Court 's refusal to grant to the plaintiffs arrears of maintenance before the date of the, suit must, in the circumstances, be upheld.
[46 C] (iii) The High Court in fixing the amount of maintenance for each of the plaintiffs at Rs. 250./ per month had taken into account all the relevant factors.
It had further directed that it was open to the parties after two years to move the trial court for variation in the rate of maintenance fixed on the ground of altered circumstances of the Estate.
There was no reason for interfering with the judgment of the High Court in this matter.
[46. G]
|
ivil Appeal No. 3927 of 1986.
From the Judgment and Order dated 18.6.
1986 of the Bombay High Court in Writ Petition No. 10 of 1980.
S.K. Dholakia, A.M. Khanwilkar and Mrs. V.D. Khanna for the Appellant.
V.M. Tarkunde, Karanjawala, Mrs. Karanjawala and H.S. Anand for the Respondent.
The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J.
This appeal by leave is from a decision of the Bombay High Court which allowed the respond ent 's petition for a writ of certiorari.
In so doing the court quashed departmental proceedings initiated against the respondent and the resultant order terminating his services.
The facts are substantially undisputed and may briefly be stated as follows: Respondent Seshrao Balwant Rao Chavan was at the rele vant time the Deputy Registrar of the Marathwada University.
One Mr. Yelikar was working then as Controller of Examina tions.
In or about April 1976, Mr. Yelikar proceeded on leave and the present respondent was directed to discharge the duties of the Controller of Examinations.
Accordingly, he joined his new assignment and continued to hold 458 that post when the controversy which culminated in his dismissal took place.
It is said that one Mr. Swaminathan from Madras was entrusted with the printing works needed to conduct annual examinations of the University for the years 1974 and 1975.
Mr. Swaminathan submitted his bills amounting about Rs.6,00,000 for the work performed by him.
The bills were not cleared immediately, and Mr. Swaminathan complained to the University authorities.
He also submitted a petition to the Prime Minister of India which was forwarded to the University for immediate action.
This led to an enquiry to find out whether the bills were deliberately kept pending with any ulterior motive.
The Executive Council of the University appointed a four member committee including the Vice Chancellor to enquire into the matter.
The committee after investigation submitted a report in November 1977 making some prima facie observations against the respondent.
Thereupon, the Executive Council desired to have the matter thoroughly examined by another committee.
It appointed Mr. N.B. Chavan for the purpose.
Mr. Chavan made a detailed enquiry but found nothing against the respondent.
On Decem ber 23, 1978, he submitted a report stating inter alia that there was no delay in clearing the said bills and if there was any delay, it was justified in the circumstances.
He has stated that the University utilised the time for internal audit in which it was found that the claim of Mr. Swamina than was excessive to the extent of Rs.48,000 and odd.
The report of Mr. Chavan thus gave a clean chit to the respond ent as to his conduct in discharging the duties as Control ler of Examinations.
If the Executive Council had accepted the report and closed the matter that would have been better.
But unfortu nately, it was not done and another chapter was opened.
On March 22, 1979, the report of Mr. Chavan was placed before the Executive Council which without taking any decision entrusted the question to the Vice Chancellor.
The Vice Chancellor was present in that meeting and agreed to take a decision in about a month.
But what he did was entirely different.
Purporting to act under the powers given to him by the Executive Council, he directed departmental enquiry against the respondent.
He appointed Mr. Motale, Advocate as an Inquiry Officer who flamed three charges: First charge impeached the respondent of intentionally delaying the clearance of the bills of Mr. Swaminathan and thus tarnish ing the image of the University.
Second charge alleged that the respondent did not place before the Executive Council, the letters , addressed by the Chancellor of the University on July 23, 1976 and 459 August 19, 1976.
Third charge accused the respondent for not producing all the available papers for scrutiny by the one man committee headed by Mr. Chavan.
On October 25, 1979, Mr. Motale submitted his ' enquiry report to the Vice Chancellor holding the respondent guilty of the charges.
After a usual procedure of giving show cause notice and considering the reply thereto, the Vice Chancel lor decided to dismiss the respondent.
On January2, 1980, he accordingly made an order.
The matter did not rest there.
The respondent moved the High Court under article 226 of the Constitution challenging his dismissal.
When the writ petition first came up for hearing in November 1985, the High Court took a very curious stand.
It observed that the entire matter be placed before the Executive Council for taking an appropriate decision.
As per this observation, the matter came up before the Executive Council in the meeting held on December 26/27, 1985.
The Executive Council passed a resolution inter alia, ratifying the action taken by the Vice Chancellor and confirming the dismissal of the respondent.
This has added a new dimension to the case.
At the final disposal of the writ petition, the High Court, however, examined the merits of the matter.
The High Court held that the action taken by the Vice Chancellor was without authority of law.
As to the ratification made by the Executive Council, the High Court held: "That the acts done by the Vice Chancellor remain the acts without any authority or powers and that defects cannot be cured by the subsequent resolution." With these conclusions, the High Court quashed the departmental proceedings taken against the respondent and also the order of termination of his services.
Being aggrieved by the judgment, the Marathwada Univer sity by obtaining special leave has appealed to this Court.
Learned counsel for the appellant put his contention in two ways: First, he said that on the true construction of the relevant provisions of the Marathwada University Act, 1974, the termination of services of the respondent cannot be assailed for want of power or jurisdiction on the part of the Vice Chancellor.
Counsel next said that if the order was defective or without authority, the ratification by the Executive Council has rendered it immune from any challenge.
In order to appreciate these submissions, we must outline the 460 statutory provisions of the Marathwada University Act, 1974 (called shortly "the Act").
Section 8 specifies the officers of the University.
The Vice Chancellor is one of the offi cers.
Section 10 provides for appointment of the Vice Chan cellor.
He shall be appointed by the Chancellor and shall ordinarily hold office for a term.
of three years.
Section 11 reads, so far as material, as follows: "11(1): The Vice Chancellor shall be the principal executive and academic officer of the University, and shah in the absence of the Chancellor, preside at the meetings of the Senate and at any Convocation of the Universi ty . " "11(3): It shah be the duty of the Vice Chancellor to ensure that the provisions of this Act, the Statutes, Ordinances and Regulations are faithfully observed.
The Chancellor shall, for this purpose, have the power to issue directions to the Vice Chancel lor who shall give effect to any such direc tions.
" 11(4): If there are reasonable grounds for the Vice Chancellor to believe that there is an emergency which requires immediate action to be taken, he shall take such action as he thinks necessary and shall, at the earliest opportunity, report in writing the grounds for his belief that there was an emergency, and the action taken by him, to such authority or body as would in the ordi nary course, have dealt with the matter . ." 11(6)(a): It shall be lawful for the Vice Chancellor, as the principal executive and academic officer, to regulate the work and conduct of the officers, and of the teaching, academic and other employees of the Universi ty, in accordance with the provisions of this Act, the Statutes, Ordinances and Regulations." "11(7): The Vice Chancellor shah exercise such other powers and perform such other duties as are prescribed by the Stat utes, Ordinances and Regulations.
" Section 19 enumerates the authorities of the University.
The Executive Council is one of the authorities specified thereunder.
Section 23 to the extent necessary is in the following terms: 461 "23(1): The Executive Council shall be the principal executive authority of the University, and shall consist of the following members, namely,: (i) the Vice Chancellorex officio Chairman.
" Section 24 deals with the powers and duties of the Executive Council.
These powers and duties are wide and varied and it is sufficient if we read sub sections (1), (xxix) and (xii) of sec.
They are as follows: "24(1): Subject to such conditions as are prescribed by or under this Act, the Executive Council shall exercise the following powers and perform the following duties, namely . . " "24(1)(xxix): appoint officers and other employees of the University, prescribe their qualifications, fix their emoluments, define the terms and conditions of their service and discipline and where necessary, their duties." "24(1)(x1i): delegate, subject to the approval of the Chancellor, any of its powers (except the power to make Ordinances), to the Vice Chancellor, the Registrar or the Finance Officer, or such other officers or authority of the University or a committee appointed by it, thinks fit." Two other provisions are material, namely, secs.
37 and 84.
Section 37, omitting the unnecessary, is in these terms: Sec.
37 Subject to the conditions prescribed by or under this Act, the Senate may make the Statutes to provide for all or any of the following matters namely: (xvi): The term of office, duties and condi tions of service of officers, teachers and other employees of the University, the provi sions of pension, insurance and provident fund and the manner of termination of their service and other disciplinary action and their quali fications, except those of teachers.
" Section 34 is as follows: "Delegation of powers: Subject to the provi sions of 462 this Act and Statutes any officer or authority of the University may, by order, delegate his or its powers, except.the power to make Stat utes, Ordinances and Regulations, to any other officer or authority under his or its control, and subject to the conditions that the ulti mate responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating them.
" With these provisions, we turn to consider the first question urged for the appellant.
The question is whether the Vice Chancellor was competent to direct disciplinary action against the respondent.
In this context, we may make a few general observations about the position and powers of the Vice Chancellor.
The University Education Commission in its report (Vol.
I December 1948 to August 1949) has summarised the powers and duties as fol lows (at 421): "Duties of Vice Chancellor A Vice Chancellor is the chief academic and executive officer of his university.
He presides over the Court (Senate) in the absence of the Chancellor, Syndicate (Executive Council), Academic Council, and numerous committees including the selection committees for ap pointment of staff.
It is his duty to know the senior members of the staff intimately and to be known to all members of the staff and students.
He must command their confidence both by adequate academic reputation and by strength of personality.
He must know his university well enough to be able to foster its points of strength and to foresee possible points of weakness before they become acute. ' He must be the 'keeper of the university 's conscience ', both setting the highest standard by example and dealing promptly and firmly with indiscipline and malpractice of any kind.
All this he must do and it can be done as constitutional ruler; he has not, and should not have autocratic power.
Besides, this he must be the chief liaison between his univer sity and the public, he must keep the univer sity alive to the duties it owes to the public which it serves, and he must win support for the university and understanding of its needs not merely from potential benefactors but from the general public and its elected representa tives.
Last, he must have the strength of character to resist unflinchingly the many forms of pressure to relax standards of all sorts, which are being applied to universities today.
" 463 This has been approved by the Education Commission, 1964 66.
In the report of the Education Commission, 1971 (pages 610 11 para 13.32) it was stated: "The person who is expected, above all, to embody the spirit of academic freedom and the principles of good management in a university is the Vice Chancellor.
He stands for the commitment of the university to schol arship and pursuit of truth and can ensure that the executive wing of the university is used to assist the academic community in all its activities.
His selection should, there fore, be governed by this overall considera tion.
" Dr. A.H. Homadi in his wise, little study about the role of the Vice Chancellor in the university administration in developing coun tries has this to state (at 49): The President or the Vice Chancellor: "The President must be willing to accept a definition of educational leadership that brings about change to the academic life of the institution.
He must be fired by a deep concern for education.
He should instil a spirit and keeness about growth and develop ment in such a way that the professiriate feels that their goals are interlinked with those of the University, that their success depends upon the success of the University.
The professors should be given detailed infor mation about the jobs that they have to per form and their good performance should be given due recognition by administration lead ership.
Even such small encouragement will boost theft morale to greater heights.
The President should have faith in his own abili ties as well as on the abilities of other professors and administrators and should provide guidelines about the kind of efforts he would like his professors and administra tors to make, setting an example by his own actions and exercises.
The negative force of fear, when used and no one denies that an element of hard headedness is some times required as a persuasive inducement to profes sors and administrators of university should be employed judiciously.
Under no circum stances should the apathy and belligerence of the professors and administrators be aroused.
These call for strong but sympathetic leader ship in the President.
" 464 The Vice Chancellor in every university is thus the conscious keeper of the University and constitutional ruler.
He is the principal executive and academic officer of the University.
He is entrusted with the responsibility of overall administration of academic as well as nonacademic affairs.
For these purposes, the Act confers both express and implied powers on the Vice Chancellor.
The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned.
(Section 11(3)).
The Vice Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University (Section 11(6)(a)).
He has also emergency powers to deal with any untoward situation (Section 11(4)).
The power conferred under sec.
11(4) is indeed significant.
If the Vice Chancellor believes that a situation calls for immedi ate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action.
He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter.
That is not all.
His pivotal position as the principal executive officer also carries with him the im plied power.
It is the magisterial power which is, in our view, plainly to be inferred.
This power is essential for him to maintain domestic discipline in the academic and non academic affairs.
In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indiscipline and malpractice.
It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations.
Counsel for the appellant argued that the express power of the Vice Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers.
We are unable to agree with this contention.
Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal.
Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove.
This power is located under sec.
24(1)(xxix) of the Act.
It is, therefore, futile to contend that the Vice Chancellor can exercise that power which is conferred on the Executive Council.
It is a settled principle that when the Act pre scribes a particular body to exercise a power, it must be exercised only by that body.
It cannot be exercised by others unless it is delegated.
The law must also provide for such delegation.
Halsbury 's Laws of England (Vol.14th Ed. para 32) summarises these principles as follows: 465 "32.
Sub delegation of powers.
In accordance with the maxim delegatius non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub delegation of the power is authorised by express words or necessary implication.
There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind.
" The counsel for the appellant next submit ted that the Executive Council in the instant case had delegated its disciplinary power to the Vice Chancellor and the Act provides for such delegation.
In support of the contention he relied upon the following resolution of the Executive Council: "Full power be given to the Vice Chancellor to take a decision on this question and the Vice Chancellor informed the Executive Council that he will take decision in about a month On this decision, Shri Gangadhar Pa thrikar gave his opinion that the Executive Council should take a decision on the note dated 16.1.
1979 submitted by him and other two members and since it was not accepted, he does not agree with the above decision." This resolution, in our opinion, is basically faulty at least for two reasons.
It may be recalled that the Executive Council without considering the report of Mr. Chavan, wanted the Vice Chancellor to take a decision thereon.
It may also be noted that the Vice Chancellor was present at the meeting of the Executive Council when the resolution was passed.
He was given "full power to take a decision" which in the context, was obviously on the report of Mr. Chavan, and not on any other matter or question.
He said that he would take a decision in about a month.
In our opinion, by the power delegated under the resolution, the Vice Chancellor could either accept or reject the report with intimation to the Executive Council.
He could not have taken any other action and indeed, he was not authorised to take any other action.
The other infirmity in the said resolution goes deeper than what it appears.
The resolution was not in harmony with the statutory requirement.
Section 84 of the Act provides for delegation of powers and 466 it states that any officer or authority of the University may by order, delegate his or its power (except power to make Ordinance and Regulations) to any other officer or authority subject to provisions of the Act and Statutes.
Section 24(1)(xii) provides for delegation of power by the Executive Council.
It states that the Executive Council may delegate any of its power (except power to make Ordinances) to the Vice Chancellor or to any other officer subject to the approval of the Chancellor.
(underlying is ours).
The approval of the Chancellor is mandatory.
Without such ap proval the power cannot be delegated to the Vice Chancellor.
The record does not reveal that the approval of the Chancel lor was ever obtained.
Therefore, the resolution which was not in conformity with the statutory requirement could not confer power on the Vice Chancellor to take action against the respondent.
This takes us to the second contention urged for the appellants.
The contention relates to the legal effect of ratification done by the Executive Council in its meeting held on December 26/27, 1985.
The decision taken by the Executive Council is in the form of a resolution and it reads as follows: "Considering the issues, the Execu tive Council resolved as follows: 1.
The Executive Council at its meeting held on March 22, 1979, had by a resolution given full authority to the Vice Chancellor for taking further proceedings and decision in both the cases of the defaulting officers.
In exercise of above authority, the Vice Chancellor appointed an Inquiry Officer and as suggested by the Inquiry Offi cer issued Show Cause notices, obtained re plies from the Officers and lastly issued orders for terminating their services; XXX XXX XXX XXX XXX It was further resolved that (i) There has been no inadequacy in the pro ceedings against both the officers; (ii) The punishment ordered against both the officers is commensurate with the defaults and allegations proved 467 against both the officers; and (iii) The Executive Council, therefore, whol ly, endorses the actions taken by the then Vice Chancellor against both the officers.
" By this resolution, we are told that the Executive Council has ratified the action taken by the Vice Chancellor.
Ratification is generally an act of principal with regard to a contract or an act done by his agent.
In Friedman 's Law of Agency (Fifth Edition) chapter 5 at p. 73, the/principle of ratifica tion has been explained: "What the 'agent ' does on behalf of the 'principal ' is done at a time when the relation of principal and agent does not exist: (hence the use in this sentence, but not in subsequent ones, of inverted commas).
The agent, in fact, has no authority to do what he does at the time he does it.
Subse quently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent 's act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done.
The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agent 's unauthorised act as from the date of the ratification: it is antedated so as to take effect from the time of the agent 's act.
Hence the agent is treated as having been authorised from the outset to act as he did.
Ratification is 'equivalent to an antecedent authority ' .
" In Bowstead on Agency (14th Ed.) at p. 39) it is stated: "Every act whether lawful or unlaw ful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done . .
The words "lawful or unlawful", however, are included primarily to indicate that the doctrine can apply to torts.
From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the princi ple, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another by ratifying.
" 468 These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions.
The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity.
It is ab initio void and cannot be ratified.
The counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta vs The Union of India, ; It was a case of termina tion of services of the Secretary of a Company.
The Board of Directors decided to terminate the services of the Secre tary.
The Chairman of the Board of Directors in fact termi nated his services.
Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed.
In the suit instituted by the Secretary challeng ing the termination of his services, the Court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors.
Ma thew, J. while considering this aspect of the matter, ob served [at pp.
307 and 308] "Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Direc tors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the BOard of Directors.
The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution.
Therefore, it was open to a regularly constituted meeting of the Board of Direction to ratify that action which, though unauthorised, was done on behalf of the Company.
Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953.
The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim.
" These principles of ratification governing transactions of a company where the general body is the repository of all powers not be 469 extended to the present case.
We were also referred to the decision of the Court of Appeal in Barnard vs National Dock Labour Board, [1953] 1 All Eng.
Law Reports 1113 and in particular the observation of Denning L.J., (at 1118 and 1119): "While an administrative function can often be delegated, a judicial function rarely can be.
No judicial tribunal can dele gate its functions unless it is enabled to do so expressly or by necessary implication.
In Local Government Board vs Arlidge (2) the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied.
It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that.
They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a time.
"Next, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has already done.
The effect of ratifica tion is to make it equal to a prior command, but as a prior command, in the shape of dele gation, would be useless, so also is a ratifi cation.
" These observations again are of little assistance to us since we have already held that there was no prior delega tion of power to the Vice Chancellor to take disciplinary action against the respondent.
There was no subsequent delegation either.
Therefore, neither the action taken by the Vice Chancellor, nor the ratification by the Executive Council could be sustained.
In the result, the appeal fails and is dismissed with costs.
N.V.K. Appeal dis missed.
|
The respondent was a Deputy Registrar of the appellant University.
As the Controller of Examinations had proceeded on leave the respondent was discharging the duties of Con troller of Examinations.
A complaint alleging that the respondent had delayed the payment of the bills of an out station party who had printed the question papers for the annual examination was received by the University.
The Executive Council of the University appointed an Enquiry Officer to hold an enquiry to find out whether the bills were deliberately kept pending with any ulterior motive.
The Enquiry Officer gave a clean chit to the respondent as to his conduct in discharging the duties as Controller of Examinations.
The Executive Council of the University did not take any decision on the report of the Enquiry Officer, but entrusted the question to the Vice Chancellor who was present at the meeting.
The Vice Chancellor directed a departmental enquiry against the respondent and appointed an advocate as the Enquiry Officer.
The Enquiry Officer by his report held the respondent guilty of all the charges levelled against him.
The Vice Chancellor after giving a show cause notice and considering the reply of the respondent, dismissed him from service.
The respondent moved the High Court under Article 226 chal 455 lenging his dismissal.
When the writ petition was taken up for hearing the High Court directed the entire matter to be placed before the Executive Council for an appropriate decision.
The Executive Council considered the matter at its meeting and passed a resolution ratifying the action taken by the Vice Chancellor, and confirming the dismissal of the respondent.
At the final disposal of the writ petition, the High Court examined the matter on merits and held that the action taken by the Vice Chancellor being without any au thority or power, these defects could not be cured by rati fication by the Executive Council in its subsequent resolu tion.
The High Court accordingly quashed the departmental proceedings taken against the respondent, and also the order of termination of his services.
In the appeal to this Court, it was contended on behalf of the University: (i)That on a true construction of the several provisions of the Marathwada University Act, 1974, the termination of services of the respondent cannot be assailed for want of power or jurisdiction on the part of the Vice Chancellor, and (2) that if the order was defective or without authority, the ratification by the Executive Council had rendered it immune from any challenge.
Dismissing the Appeal, the Court, HELD: 1.
The Vice Chancellor in every university is the conscious keeper of the University and the constitutional ruler.
He is the principal executive and academic officer of the University.
He is entrusted with the responsibility of overall administration of academic as well as non academic affairs.
[464A B] 2.
As the principal executive officer the Vice Chancel lor also carries with him an implied power, the magisterial power.
This power is essential for him to maintain domestic discipline in the academic and non academic affairs.
In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indis cipline and malpractice.
It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations.
[464D E] 3.
The Marathwada University Act, 1974 confers both express and implied powers on the Vice Chancellor.
The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regula tions are observed by all concerned.
[Section 11(3)] He has a right to regulate the work and conduct of 456 Officers and teaching and other employees of the University [Sec. 11(b)(a)].
He has also emergency powers to deal with any untoward situation [Section 11(4)] a very significant power.
If he believes that a situation calls for immediate action, he can take such action as he thinks necessary, though in the normal course he is not competent to do so.
However he must report to the concerned authority or body, who would, in the ordinary course, have dealt with the matter.
[464B C] 4.
The power 'to regulate the work and conduct of the officers ' cannot include the power to take disciplinary action for their removal.
[464F] 5.
When a statute prescribes a particular body to exercise a power, it must be exercised only by that body.
[464G] Halsbury 's Laws of England Vol. 1, 4th Edn.
page 32, re ferred to.
The Marathwada University Act confers power to appoint officers on the Executive Council and it generally includes the power to remove.
This power is located under Section 24(1) (XXIX) of the Act.
[464F G] 7.
The resolution of the Executive Council at a meet ing, at which the Vice Chancellor was also present, gave full power to the Vice Chancellor 'to take a decision on this question '.
By the power delegated under the resolution, the Vice Chancellor could either accept or reject the report with intimation to the Executive Council.
He could not have taken any other action and indeed, he was not authorised to take any other action.
[465F G] : 8.
The resolution was also not in harmony with the statutory requirement.
Approval of the Chancellor to the delegation of power by the Executive Council to the Vice Chancellor was mandatory under section 24(1)(xii) read with section/84 of the Marathwada University Act.
The resolution not being in conformity with the statutory requirement could not confer power on the Vice Chancellor to take action j against the respondent.
[465H; 466A C] 9.
Ratification is generally an act of principal with regard to a contract or an act done by his agent.
The prin ciples of ratification in the context of the law of agency apparently do not have any application with regard to exer cise of power conferred under statutory provisions.
The statutory authority cannot travel beyond the power conferred and 457 any action without power has no legal validity.
It is ab initio void and cannot be ratified.
[468A B] Friedman 's Law of Agency (5th Edn.) Chapter 5at page 73, Bowstead on Agency (14th Ed.) at page 39, Parmeshwari Prasad Gupta vs Union of India, ; and Bernard vs National Dock Labour Board, [1953] 1 All Eng.
Law Reports 1113.
In the instant case, there was no prior delegation of power to the Vice Chancellor to take disciplinary action against the respondent.
There was no subsequent delegation either.
Therefore, neither the action taken by the Vice Chancellor, nor the ratification by the Executive Council could be sustained.
[469F]
|
Civil Appeal No. 1576 of 1987 From the Judgment and order dated 13.1.1987 of the Punjab and Haryana High Court in R.S.A. No. 3521 of 1986 H.N. Salve, R K. Garg and N.D. Garg for the Appellants.
T.U Mehta and G.K Bansal for the Respondents.
The following Judgments of the Court were delivered RAY, J.
The defendant respondent No. 1, Ram Prakash as Karta of joint Hindu family executed on February 7, 1978 an agreement to sell the suit property bearing M.C.K. No. 238/9, in Mohalla Qanungaon at Kaithal for a consideration of Rs.21,400 and he received a sum of Rs.5,000 as earnest money.
As the respondent No. 1 refused to execute the sale deed, the defendant No. 2, Jai Bhagwan instituted a suit No 570 of 1978 in the court of Sub Judge, 1st Class, Kaithal for specific performance of the agreement to sell and in the alternative for a decree for recovery of Rs. 10,000.
In the said suit the appellant Nos 1 and 2 and the respondent No. 11 who are the sons of defendant respondent No. 1 made an application for being impleaded.
This application however, was dismissed.
Thereafter the 3 sons of defendant No. 1 as plaintiffs instituted Civil Suit No 31 of 1982 in the Court of Sub Judge, IInd Class, Kaithal for permanent injunction stating inter alia that the said property was joint Hindu Family coparcenary property of the plaintiffs and defendant No 1 that there was no legal necessity for sale of the property nor it was an act of a good management to sell the same to the defendant No. 2 without the consent of the plaintiffs and without any legal necessity.
It was, therefore, prayed that a decree for permanent injunction be passed in favour of the plaintiffs and against the defendant No 1 restraining him from selling or alienating the property to the defendant No. 2 or to any other person and also restraining defendant No. 2 from proceeding with the suit for specific performance pending in the civil court.
The defendant No. 2 Jai Bhagwan since deceased, filed a written statement stating inter alia that the defendant No 1 disclosed that the suit property was owned by him and that he was in need of money for meeting the expenses of the family including the education expenses cf the children and also for the marriage of his daughters.
It has also been pleaded that the house in question fetched a very low income from rent 630 and as such the defendant No. 1 who has been residing in Delhi, did not think it profitable to keep the house.
It has also been stated that the suit was not maintainable in law and the injunction as prayed for could not be granted.
The Trial Court after hearing the parties and considering the evidences on record held that the house property in question was the ancestral property of the Joint Hindu Mitakshara Family and the defendant No. 1 who is the father of the plaintiffs was not competent to sell the same except for legal necessity or for the benefit of the estate Since the plaintiffs ' application for impleading them as party in the suit for specific performance of contract of sale, was dismissed the filing of the present suit was the only remedy available to the plaintiffs.
The plaintiffs being coparceners having interest in the property, the suit in the present form is maintainable.
The Trial Court further held that: "It is well settled law that Karta of the joint Hindu family cannot alienate the coparcenary property without legal necessity and coparcener has right to restrain the Karta from alienating the coparcenary property if the sale is with out legal necessity and is not for the benefit of the estate.
This view of mine is supported by case titled 'Shiv Kumar vs Mool Chand ' reported in CLJ 1971 page 1027 thus, the proposed sale is without any legal necessity and is not for the benefit of the estate, therefore the suit of the plaintiff is decreed with no orders as to costs." Against this judgment and decree the defendants, the legal representatives of the deceased defendant No. 2, preferred an appeal being Civil Appeal No. 199/13 of 1984.
The lower appellate court following the decision in Jujhar Singh vs Giani Talok Singh, held that a coparcener has no right to maintain a suit for permanent injunction restraining the Manager or Karta from alienating the coparcenary property and the coparcener has the right only to challenge the alienation of coparcenary property and recover back the property after alienation has come into being.
The Court of appeal below further held: "That Ram Prakash, father of the plaintiffs and Karta of the joint coparcenary property cannot be restrained by way of injunction from alienating the coparcenary property to defendant No. 2.
In consequence, the appeal is accepted 631 and the judgment and decree of the trial court under attack A are set aside " Against this judgment and decree, the instant appeal on special leave has been preferred by the appellants i.e. the sons of the defendant respondent No. 1, the Karta of the Joint Hindu Family.
In this appeal we are called upon to decide the only question whether a suit for permanent injunction restraining the Karta of the joint Hindu family from alienating the house property belonging to the joint Hindu family in pursuance of the agreement to sell executed already in favour of the predecessor of the appellants, Jai Bhagwan, since deceased, is maintainable.
It is well settled that in a Joint Hindu Mitakshara Family, a son acquires by birth an interest equal to that of the father in ancestral property.
The father by reason of his paternal relation and his position as the head of the family is its Manager and he is entitled to alienate joint family property so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt.
The power of the Manager of a joint Hindu family to alienate a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunooman persaud Panday vs Mussumat Babooee Munraj Koonweree, Moore 's on Indian Appeal ( 1856, Vol.
VI) 393: "The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is, by the Hindu Law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate.
But where the charge is one that a prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate.
The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded.
If that danger arises from any misconduct to which the lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause.
A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with 632 whom he is dealing, that the Manager is acting in the A particular instance for the benefit of the estate.
If he does inquire, and acts honestly, the real existence of an alleged and reasonably credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money.
" At the outset it is to be noticed that in a suit for permanent injunction under section 38 of the by a coparcener against the father or Manager of the Joint Hindu family property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property.
Sub Section (h) of Section 38 of bars the grant of such an injunction in the suit.
Secondly, the plaintiff respondents brought this suit for permanent injunction restraining their father, the defendant No. 1, from selling or alienating the property to the defendant No. 2 or any other person and also restraining the defendant No. 2 from proceeding with the suit for specific performance of the agreement to sell pending in the civil court.
Thus the relief sought for is to restrain by permanent injunction the Karta of the Joint Hindu Mitakshara Family, i.e. defendant No. 1, from selling or alienating the house property in question.
The defendant No. 1 as Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts.
The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer.
If such a suit for injunction is held maintainable the effect wi be that whenever the father as Karta of the Joint Hindu coparcener property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided.
The judgment in Shiv Kumar Mool Chand Arora vs Mool Chand Jaswant Singh, AIR 1972 (Pub. & Har.) 147 wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu family property was maintainable has been off set by the Division Bench in Jujhar Singh vs Ciani Talok Singh, (supra) wherein it has been held that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal neces 633 sity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.
Following this decision the High Court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the Trial Court.
We do not find any infirmity in the findings arrived at by the High Court.
It has, however, been submitted on behalf of the appellant that the High Court should have held that in appropriate cases where there are acts of waste, a suit for permanent injunction may be brought against the Karta of the joint Hindu famiiy to restrain him from alienating the property of the joint Hindu family.
This question is not required to be considered as we have already held that the instant suit for injunction as framed is not maintainable.
We, of course, make it clear that in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener.
But nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted.
It further appears that the defendant No. 1, Ram Parkash entered into the agreement of sale stating that he is the owner of the suit property.
The plaintiff appellants claim the suit property as ancestral property and they as coparceners of joint Hindu Mitakshara family have equal shares with their father in the suit property.
The question whether the suit property is the self acquired property of the father or it is the ancestral property has to be decided before granting any relief.
The suit being one for permanent injunction, this question cannot be gone into and decided.
It is also pertinent to note in this connection that the case of specific performance of agreement of sale bearing suit No. 570 of 1978 had already been decreed on 11th May, 1981 by the Sub Judge, Ist Class, Kaithal.
For the reasons aforesaid we affirm the judgment and decree made by the High Court and dismiss the appeal without any order as to costs.
JAGANNATHA SHETTY, J.
I agree that this appeal should be dismissed but I add a few words of my own The question raised in the appeal is whether interference of the Court could be sought by a coparcener to interdict the Karta of Hindu undivided family from alienating coparcenary property.
The question is of considerable importance and there seems to be but little authority in decided cases.
634 The facts of the case lie in a narrow compass.
In February, 1978, Ram Prakash entered into agreement for sale of certain house property in favour of Jai Bhagwan.
The property has been described in the agreement as self acquired property of Ram Prakash.
It was agreed to be sold for Rs.21,400.
Jai Bhagwan paid Rs.5000 as earnest money on the date of agreement.
He promised to pay the balance on the date of execution of the sale deed.
Ram Prakash, however, did not keep up his promise.
He did not execute the sale deed though called upon to do so Jai Bhagwan instituted a suit for specific performance of the agreement.
In that suit, Rakesh Kumar and his brothers who are the sons of Ram Prakash wanted to be impleaded as parties to the suit.
They want to resist the suit for specific performance.
But the (Court did not permit them.
The Court said that they were unnecessary parties to the suit.
Being unsuccessful in that attempt, they instituted a suit for permanent injunction against their father.
They wanted the Court to restrain their father from alienating the house property to Jai Bhagwan or to any body else.
Their case was that the said house was their coparcenary property and the proposed sale was neither for legal necessity nor for benefit of the joint family estate.
The suit for injunction was practically tried as a suit for declaration.
A lot of evidence was adduced on various issues, including the nature of the suit property.
The trial court ultimately decreed the suit with the following findings: The suit property was coparcenary pro perty of the joint family consisting of Ram Prakash and his sons.
Jai Bhagwan has failed to prove that the proposed sale was for legal necessity of the joint family.
He has also failed to prove that the intended sale was for benefit of the estate.
Ram Prakash being the manager of the family cannot alienate coparcenary property in the absence of those two requirements.
The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification Jai Bhagwan died during the pendency of the suit.
His wife and children challenged the decree of the trial court in an appeal before the Additional District Judge, Kurukshetra.
By then, the Punjab & Haryana High Court had declared in Jujhar Singh vs Giani Talok Singh, [1968] P.L J. 346 that a suit for injunction to restrain Karta from alienating coparcenary property is not maintainable.
The learned District Judge following the said decision reversed the decree of the trial court and dismissed the suit.
The plaintiff preferred second appeal which was summarily dismissed by the High Court.
635 The plaintiffs, by special leave, have appealed to this Court.
The arguments for the appellants appear to be attractive and are as follows: There is no presumption under law that the alienation of joint family property made by Karta is valid.
The Karta has no arbitrary power to alienate joint family property.
He could do so only for legal necessity or for family benefit.
When both the requirements are wanting in the case, the coparceners need not vainly wait till the transaction is completed to their detriment.
They are entitled to a share in the suit property.
They are interested in preserving the property for the family.
They could, therefore, legitimately move the court for an action against the Karta in the nature of a quia timet.
As a preliminary to the consideration of the question urged, it will be necessary to examine the structure of joint Hindu family, its incidents and the power of Karta or manager thereof.
The status of the undivided Hindu family or the coparcenary is apparently, too familiar to every one to require discussion.
I may, however, refer in laconie details what is just necessary for determining the question urged in this appeal.
JOlNT HINDU FAMILY: Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property.
But it is there from the ancient time perhaps, as a social necessity.
A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters.
They are bound together by the fundamental principle of sapindaship or family relationship which is the essential feature of the institution.
The cord that knits the members of the family is not property but the relationship of one another.
The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like.
It is a narrower body than joint family.
It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees.
The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants upto three degrees can offer spiritual ministration to 636 an ancestor only males can be coparceners.
[See: Hindu Law by A N.R. Raghavachariar 8th Ed.
p. 202].
In an early case of the Madras High Court in Sudarshan Maistri vs Narasimhulu Maistri and anr.
, ILR 25 MAD 149 Bhashyam Ayyanger, J. made the following pregnant observations about the R nature of the institution and its incidents at p. 154: "The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant vs Narayan Dhond Savant), (I.L.R. at p. 471) and Mayne 's Hindu Law and Usage, 6th edition, paragraph 270 and the possession of property by such corporate body.
The first requisite therefore is the family unit; and the possession by it of property is the second requisite.
For the present purpose female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line and so long as that family is in its normal condition viz. the undivided state it forms a corporate body Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family".
Adverting to the nature of the property owned by such a family, learned Judge proceeded to state at p. 155: "As regards the property of such family, the 'unobstructed heritage ' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage ' which, with its accretions, may be exclusively owned by such branch as a corporate body.
" This statement of law has been approved by the Supreme Court in Bhagwan Dayal vs Mst.
Reoti Devi, [ ; p. 477 Managing Member and His Powers: In a Hindu family, the karta or manager occupies a unique posi 637 tion It is not as if anybody could become manager of a joint Hindu family. "As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property.
" The manager occupies a position superior to other members.
He has greater rights and duties.
He must look after the family interests.
He is entitled to possession of the entire joint estate He is also entitled to manage the family properties.
In other words, the actual possession and management of the joint family property must vest in him.
He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them.
The legal position of karta or manager has been succinctly summarised in the Mayne 's Hindu Law (12th Ed.
para 318) thus: 318.
Manager 's Legal position "The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners.
It is more like that of a trustee and cestui que trust.
But the fiduciary relationship does not involve all the duties which are imposed upon trustees.
" The managing member or karta has not only the power to manage but also power to alienate joint family property.
The alienation may be either for family necessity or for the benefit of the estate.
Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors.
The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad vs Mt. Babooee, [ There it was observed at p. 423: ( 1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power.
It can only be exercised rightly in case of need, or for the benefit of the estate.
" This case was that of a mother, managing as guardian for an infant heir.
A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later.
Any other manager however, is not having anything less than those stated in the said case.
Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.
Remedies against alienations: Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his trans 638 actions.
His acts could be questioned in the Courts of law.
The other members of the family have a right to have the transaction declared void, if not justified.
When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was Iegal necessity in fact or that he made proper and bonafide enquiry as to the existence of such necessity.
It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity.
If the alienation is found to be unjustified, then it would be declared void.
Such alienations would be void except to the extent of manager 's share in Madras, Bombay and Central Provinces.
The purchaser could get only the manager 's share.
But in other provinces, the purchaser would not get even that much.
The entire alienation would be void.
[Mayne 's Hindu Law 11th ed.
para 396].
In the light of these principles, I may now examine the correctness of the contentions urged in this appeal.
The submissions of Mr H.N. Salve, as I understand.
proceeded firstly on the premise that a coparcener has as much interest as that of karta in the coparcenary property.
Second, the right of copercener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the benefit of the estate.
When these two rights are preserved to a coparcener, why should he not prevent the Karta from dissipating the ancestral property by moving the Court? Why should he vainly wait till the purchaser gets title to the property? This appears to be the line of reasoning adopted by the learned counsel.
I do not think that these submissions are sound.
It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate.
His rights are not independent of the control of the karta.
It would be for the karta to consider the actual pressure on the joint family estate.
It would be for him to foresee the danger to be averted.
And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family.
A coparcener cannot interfere in these acts of management.
Apart from that, a father karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality.
If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property.
No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive 639 Of the right to obstruct alienation.
Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation.
These are two distinct rights.
One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance.
The other is a right to interfere with the act of management of the joint family affairs.
The coparcener cannot claim the latter right and indeed, he is not entitled for it.
Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property.
There is one more difficulty for the sustainability of the suit for injunction with which we are concerned.
Temporary injunction can be granted under sub section (l) of Section 37 of the .
It is regulated by the Code of Civil Procedure, 1908.
A decree for perpetual injunction is made under sub section (2) of Section 37.
Such an injunction can be granted upon the merits of the suit.
The injunction would be to restrain the defendant perpetually from the commission of an act, which would be contrary to the rights of the plaintiff Section 38 of the governs the grant of perpetual injunction and sub section 3 thereof, reads: "When the defendant invades or threatens to invade the plaintiff 's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely: (a) Where the defendant is trustee of the property for the plaintiff; (b) Where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion; (c) Where the invasion is such that compensation in money would not afford adequate relief; (d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings".
The provisions of Section 38 have to be read alongwith section 41.
Section 41 provides that an injunction cannot be granted in the cases falling under clauses (a) to (j).
Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an 640 efficacious relief by any other usual mode of proceeding (except in case of breach of trust).
The coparcener has adequate remedy to impeach the alienation made by the karta.
He cannot, therefore, move the Court for an injunction restraining the karta from alienating the coparcenary property.
lt seems to me that the decision of the Punjab & Haryana High Court in Jujhar Singh vs Giani Talok Singh, has correctly laid down the law.
There it was observed at p. 348: "If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal.
The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of.
Legally speaking unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognised in law to maintain a suit to prevent the proposed sale.
The principle that an injunction can be granted for preventing waste by a manager or karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning.
We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being." From the above discussion of the principles of Hindu Law and in the light of the provisions of the , I think, therefore, there ought to be no hesitation on my part to dismiss this appeal and I dismiss the same with cost S.L. Appeal dismissed.
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% The defendant respondent No. 1, Ram Prakash as Karta of a Joint Hindu Family executed an agreement to sell the suit property and received a sum of Rs.5,000 as earnest money.
He, however, refused to execute the sale deed.
The defendant No. 2 Jai Bhagwan, instituted a suit in the Court of the Sub Judge for specific performance of the agreement and in the alternative for a decree for recovery of Rs.10,000.
In the said suit, the appellants Nos.
I and 2 and the respondent No. 11, the sons of defendant respondent No. 1, made an application for being impleaded.
The application was dismissed.
Thereupon, the three sons of defendant No. 1 instituted a civil suit in the Court of the Sub Judge for permanent injunction, restraining the defendant No.1 from selling or alienating the property above said to the defendant No.2 or any other person and restraining the defendant No.2 from proceeding with the suit for specific performance aforementioned, as the property in question was a Joint Hindu Family Coparcenary property of the plaintiff and the defendant No. t, and there was no legal necessity for sale of the property, nor was it an act of good management to sell the same to the defendant No.2 without the consent of the plaintiffs.
The trial Court held that the house property in question was the ancestral property of the Joint Hindu Mitakshara Family and the defendant No. 1, the father of the plaintiffs, was not competent to sell the same except for a legal necessity or the benefit of the estate, and that since the plaintiffs ' application for impleading them in the suit for specific performance of the contract of sale had been dismissed and the plaintiffs were coparceners having interest in the property, the present suit was the only remedy available to them, and was maintainable in the present form.
Against this judgment and decree, the defendants, the legal rep 624 resentatives of defendant No. 2 since deceased, preferred an appeal.
The Appellate Courts held that a coparcener had no right to maintain a suit for permanent injunction, restraining the manager or Karta from alienating the coparcenary property and the coparcener had the right only to challenge the alienation of coparcenary property to recover the property after the alienation had come into being.
The judgment and decree of the trial court were set aside.
The appellants, i.e. the sons of the defendant respondent No. 1, appealed to this Court for relief by special leave against the decision of the High Court.
In this appeal the Court was called upon to decide the only question whether the suit for permanent injunction restraining the Karta of the joint Hindu family from alienating house property belonging to the joint Hindu family in pursuance of the agreement to sell executed in favour of the predecessor of the appellants, Jai Bhagwan, since deceased, was maintainable.
It is well settled that in a Joint Hindu Mitakshara family, a son acquires by birth an interest equal to that of the father in the ancestral property.
The father by reason of his paternal relation and his position as the head of the family is its manager and he is entitled to alienate the joint family property so as to bind the interests of both the adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an E antecedent debt.
The power of the Manager of a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunoomanpersaud Pandey vs Mussumat Bobooee Munraj Koonweree Moore 's on Indian Appeal ( 1856 Vol.
Vl) 393.
[631C E] In a suit for permanent injunction under section 38 of the Specific Relief Act by a coparcener against the father or Manager of the joint Hindu family property, an in junction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property.
Sub section (h) of section 38 of the Specific Relief Act bars the grant of such an injunction.
Secondly, the plaintiff respondents brought the suit for permanent injunction restraining their father, the defendant No. t, from selling or alienating the property to defendant No. 2 or any other person, etc.
Thus the relief sought for was to restrain by permanent injunction the Karta of the Joint Hindu Mitakshra family from selling or alienating the property.
The delendant No. 1 as Karta of the joint Hindu family had undoubtedly the power to alienate the joint family property for legal necessity or for 625 the benefit of the estate as well as for meeting antecedent debts.
[632 B E] A The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the property belonging to the joint Hindu family even if there is a genuine legal necessity.
If such a suit for injunction is held maintainable, the effect will be that whenever the father as Karta of the joint Hindu coparcenary property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity till that suit is decided.
In case of waste or ouster, an injunction may be granted against the manager of the joint Hindu family at the instance of the coparcener, but a blanket injunction restraining the manager permanently from alienating the property of a joint Hindu family even in the case of legal necessity, cannot be granted.
[632G H; 633A, D] It appeared that the defendent No. t entered into the agreement of sale stating that he was the owner of the suit property.
The plaintiffs appellants claimed the suit property was the joint family property and they as coparceners of the joint Hindu Mitakshra family had equal shares with their father in the suit property.
The question whether the suit property was the self acquired property of the father or was the ancestral property, had to be decided before granting any relief.
The suit being for permanent injunction, this question could not be gone into and decided.
[633D E] The appeal was dismissed and the judgment and decree of the High Court were affirmed.
[633F] Per K. Jagannatha Shetty, J. (concurring) The question raised in the appeal was whether interference of the Court could be sought by a coparcener to interdict the Karta of a Hindu undivided family from alienating coparcenary property.
The question was of considerable importance and there seemed to be but little authority in the decided cases.
The facts of the case lay in a narrow compass.
Ram Prakash entered into an agreement for sale of certain house property in favour of Jai Bhagwan, which was described as a self acquired property of Ram Prakash.
Jai Bhagwan paid Rs.5000 as earnest money on the date of the agreement and promised to pay the balance on the date of execution of the sale deed.
Ram Prakash, however, did not execute the sale 626 deed.
Jai Bhagwan instituted a suit for specific performance of the agreement.
In that suit, the sons of Ram Prakash wanted to be impleaded as parties to resist the suit for specific performance, but the court did not permit them.
Thereupon, they instituted a suit for permanent injunction against their father, restraining him from alienating the property to Jai Bhagwan or any body else, on the ground that the said house was their coparcenary property and the proposed sale was neither for legal necessity nor for the benefit of the joint family estate.
The suit for injunction was practically tried as a suit for declaration.
The trial court decreed the suit with the following findings: The suit property was coparcenary property of the joint family of Ram Prakash and his sons.
Jai Bhagwan had failed to prove that the proposed sale was for the legal necessity of the joint family or for the benefit of the estate.
Ram Prakash being the manager of the family could not alienate the coparcenary property in the absence of these two requirements.
The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification.
The wife and children of Jai Bhagwan, who had died during the pendency of the suit, challenged the decree of the trial court in appeal before the Additional District Judge.
The District Judge reversed the decree of the trial court and dismissed the suit.
The plaintiffs preferred second appeal which was dismissed by the High Court.
The plaintiff appealed to this Court by special leave.
As a preliminary to the consideration of the question involved, it would be necessary to examine the structure of the joint Hindu family, its incidents and the power of its Karta or manager.
[635D] Joint Hindu Family: joint Hindu family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters.
They are bound together by the fundamental principle of sapindaship or family relationship which is the essential feature of the institution.
The cord that knits the members of the family is not property but the relationship of one another.
[635F] The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like.
It is a narrower body than a joint family.
It commences with a common ancestor and includes a holder of joint property 627 and only those males in his male live who are not removed from him by more than three degrees.
Only males can be coparceners.
[635G H; 636A] Managing Member and his powers: In a Hindu family, the Karta or manager occupies a unique position.
He has greater rights and duties.
He must look after the family interests.
He is entitled to possession of the entire joint estate.
He is also entitled to manage the family properties.
In other words, the actual possession and management of the joint family property must vest in him.
[637Bl The managing member or Karta has not only the power to manage but also the power to alienate joint family property.
The alienation may be either for family necessity or for the benefit of the estate.
Such alienation would bind the interests of all the undivided members of the family, adults or minors.
[637E] Remedies against alienations: Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family, the law raises no presumptions as to the validity of his transactions.
His acts could be questioned in the court of law.
The other members of the family have a right to have the transaction declared void, if not justified.
When an alienation is challenged as unjustified or illegal, it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity and satisfied himself as to the existence of such necessity.
If the alienation is found to be unjustified, it would be declared void.
Such alienations would be void except to the extent of the manager 's share, in Madras, Bombay and Central provinces.
The purchaser could get only the manager 's share.
In other provinces, the purchaser would not get even that much.
The entire alienation would be void.
[637H; 638A C] In the light of these principles, his Lordship did not think that the submissions of Mr. H.N. Salve were sound.
It is true that a coparcener takes by birth an interest in the ancestral property but he is not entitled to separate possession of the coparcenary estate.
His rights are not independent of the control of the Karta.
It would be for the Karta to consider the actual pressure on the joint family estate and to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family.
A coparcener cannot interfere in 628 these acts of management.
A father Karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt not tainted with immorality.
If there is no such need or benefit, the purchaser takes risk and the right and interest of the coparcener will ramming unimpaired in the alienated property.
No doubt the law confers a right on the coparcener to challenge the alienation made by Karta, but that right is not inclusive of the right to obstruct aliention.
Nor could the right to obstruct alienation be considered incidental to the right to challenge the alienation.
The coparcener cannot claim the right to interfere with the act of management of the joint family affairs; he is not entitled for it.
Therefore, he cannot move the Court to grant relief by injunction restraining the Karta from alienating the coparcenary property.
[638D E, G H; 639A B] There was one difficulty for the sustainability of the suit for injunction.
Temporary injunction can be granted under sub section (I) of section 37 of the .
A decree for perpetual injunction is made under sub section (2) of section 37.
Such an injunction can be granted upon the merits of the suit.
The injunction would be to restrain the defendant perpetually from commission of an act contrary to the rights of the plaintiff.
Section 38 of the governs the grant of perpetual injunction.
The provisions of section 38 have to be read alongwith section 41, the clause (h) whereof provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in the case of a breach of trust).
The coparcener has adequate remedy to impeach the alienation made by the Karta.
He cannot, therefore, move the court for an injunction restraining the Karta from alienating the coparcenary property.
The decision of the Punjab & Haryana High Court in Jujhar Singh vs Giani Talok Singh, , 348 has correctly laid down the law.
[639C D, H; 640A B] From the above discussions of the principles of Hindu Law and in the light of the provisions of the , his Lordship dismissed the appeal.
[640G ] Shiv Kumar vs Mool Chand, CLJ 1971 page 1027; Jujhar Singh vs Giani Talok Singh, , 348; Hunooman Persaud Pandey vs Mussumat Babooee Munraj Koonweree Moore 's on Indian Appeal, [1856] Vol.
VI 393; Shiv Kumar Mool Chand Arora vs Mool Chand Jaswant Singh, A.I.R. 1972 (Punjab & Haryana) 147; Sudarshan Maistri vs Narasimhulu Maistri and Anr., ILR 25 Mad, 149 and Bhagwan Dayal vs Mst.
Reoti Devi, , 477.
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appointment was under the pension scheme.
Thereafter, he joined services as a lecturer in the
Sardar Patel University with effect from 04.10.1979.
He was appointed as a ‘Reader’ through open
selection by direct recruitment with effect from
28.06.1984. He was confirmed in service with effect
from 28.09.1986. It is his case that since the
appointment was made after 01.04.1982 on the post
of reader, his services has been counted under the
GPF scheme. He retired from service on
3. Mr.Jayraj Chauhan learned counsel for the petitioner
would submit that it is no longer in doubt that the
petitioner was entitled to the benefit of pension as
per the Government Resolution dated 15.10.1984
and the subsequent notifications. He would rely on
a decision in case of State of Gujarat and Ors. v.
Ashwinkumar Ramniklal Jani rendered in LPA
No.219 of 2017 by which, in the case of the
petitioners, the Division Bench dismissed the appeal
of the State holding that the petitioner was entitled
to the benefits of pension, confirming the decision of
the coordinate bench of this Court rendered in
Special Civil Application No.15316 of 2015 dated
4. He would submit that after the date of retirement,
he was entitled to a gratuity of Rs.10 lakhs. This
was pursuant to a notification dated 24.05.2010, by
which, the gratuity amount was enhanced to Rs.10
lakhs from Rs.3,50,000/-. Consequential
amendments made in sub-section (3) of Section 4 of
the Payment of Gratuity Act. A resolution dated
19.07.2014 was passed by the State extending the
benefit of availability of gratuity of Rs.10 lakhs given
to CPF beneficiaries effective from the date of
amendment i.e. 24.05.2010.
5. Ms.Surbhi Bhati learned AGP for the State would
submit that reading the appointment order of the
petitioner with the Sardar Patel university would
indicate that the petitioner was governed by the CPF
scheme and therefore not entitled to the gratuity.
6. Considering the submissions made by the learned
advocates for the respective parties, the following
facts would indicate that the petitioner is entitled to
an amount of Rs.10,00,000/- as gratuity pursuant to
the amended notification with effect from
24.05.2010 which became part of the Act, by which,
the ceiling of gratuity was raised to Rs.10 lakhs.
Admittedly, from the pay slip of the Sardar Patel
University of June 2013, preceding the petitioner’s
retirement indicates that GPF was deducted from
the salary of the petitioner. Admittedly therefore
the petitioner was governed by the GPF scheme.
That all was not in doubt in view of the Division
Bench affirming the decision of the learned Single
Judge in the petition filed by the petitioner as
referred to herein above.
7. Even otherwise, as held by the Division Bench of this
Court in Civil Application No.3918 of 2019 in F/LPA
No.28476 of 2019, the Division Bench dismissed the
appeal of the State upholding the order of the
coordinate bench in Special Civil Application
Nos.7746 of 2014 with 7747 of 2014 dated
23.12.2016, where the Court considered the aspect
of payment of gratuity of Rs.10 lakhs and held as
“1. Both the petitions raise identical questions of
facts and law, and therefore, they are being decided
by a common order.
2. The facts for the purpose of adjudication are
drawn from Special Civil Application No. 7746 of
2014 which is as under :-
2.1. The petitioner was serving in Shri
H.K.Commerce College, affiliated to Gujarat
University and he retired from service on 14 June,
2011. He had not opted for pension and continued
under the CPF Scheme. The petitioner had desired
the benefit of Government Resolution dated
13.4.2009 which enhanced the amount of gratuity to
Rs.10.00 Lacs. As the respondent had not paid the
amount of Rs.10.00 Lacs (Rupees Ten Lacs only)
towards gratuity, it is say of the petitioner that till
date, the respondents have not sent any reply to the
petitioner nor they have paid the remaining amount
of gratuity at par with other GPF holders. Therefore,
the petitioner has approached this Court with the
following reliefs :-
(B) to declare that the action of the
respondents in not paying the entire amount of
Rs.10 Lacs towards gratuity to the petitioner is
arbitrary and bad in law and therefore be
pleased to issue a writ of mandamus or any
other appropriate writ,k order or direction
quashing and setting aside the action of the
respondents in not paying full gratuity to the
petitioner and further be pleased to direct the
respondents to pay remaining amount of
gratuity to the petitioner forthwith along with
12% interest per annum.
(c) Pending admission, hearing and final
disposal of this petition, the respondents be
directed to pay the remaining amount of
gratuity along with interest at the rate of 12%
per annum.
(d) to award the cost of this petition.
(e) to grant any other and further relief/s as
may be deemed fit and proper in the facts and
circumstances of the case.
3. Mr.Jairaj Chauhan, learned advocate appearing
for the petitioners has submitted that to both the
petitioners, the principal amount of gratuity has
already paid on 10.10.2014 . He has urged that Rs.
3.50 Lacs (Rupees Three Lacs Fifty thousand only )
paid on 14.9.2011 and the remaining amount of
Rs.6.50 Lacs (Rupees Six Lacs Fifty Thousand only)
has been paid on 10.10.2014. Therefore, the court
needs to pass necessary directions for the interest
part only.
4. This Court has heard learned AGP Ms.Asmita
Patel who has fairly submitted the Court may pass
appropriate order considering the decision rendered
in case of H.Gangahanume Gowda Vs. Karnataka
Agro Industries Corporation Ltd. reported
in (2003) 3 SCC 40. The Apex Court in the said
authority has decided the interest on delayed
payment of gratuity. It is also held that the same is
mandatory and not discretionary. When it is not the
case of the respondent that the delay in the payment
of gratuity was due to the fault of the employee and
that it had obtained permission in writing from the
controlling authority for the delayed payment on
that ground, the respondent had been directed to
pay interest @ 10% on the amount of gratuity to
which the appellant is entitled from the date it
became payable till the date of payment of the
gratuity amount.
5.Considering the submission of both the sides and
bearing in mind the ratio sought to be relied upon by
learned AGP , the amount of gratuity has already
paid on 14.9.2011 to the tune of Rs.3.50 Lacs and
the remaining amount Rs. 6.50 Lacs was paid on
10.10.2014 as petitioner had retired on 14.6.2011.
6. The Apex Court in the above referred decision has
held that the grant of gratuity well within time
mandatory and not discretionary wherein the Apex
Court has held that :-
“9. It is clear from what is extracted above
from the order of learned Single Judge that
interest on delayed payment of gratuity was
denied only on the ground that there was
doubt whether the appellant was entitled to
gratuity, cash equivalent to leave etc., in view
of divergent opinion of the courts during the
pendency of enquiry. The learned Single Judge
having held that the appellant was entitled for
payment of gratuity was not right in denying
the interest on the delayed payment of gratuity
having due regard to Section 7(3A) of the Act.
It was not the case of the respondent that the
delay in the payment of gratuity was due to the
fault of the employee and that it had obtained
permission in writing from the controlling
authority for the delayed payment on that
ground.As noticed above, there is a clear
mandate in the provisions of Section 7 to the
employer for payment of gratuity within time
and to pay interest on the delayed payment of
gratuity. There is also provision to recover the
amount of gratuity with compound interest in
case amount of gratuity payable was not paid
by the employer in terms of Section 8 of the
Act. Since the employer did not satisfy the
mandatory requirements of the proviso to
Section 7(3A), no discretion was left to deny
the interest to the appellant on belated
payment of gratuity. Unfortunately, the
Division Bench of the High Court, having found
that the appellant was entitled for interest,
declined to interfere with the order of the
learned Single Judge as regards the claim of
interest on delayed payment of gratuity only on
the ground that the discretion exercised by the
learned Single Judge could not be said to be
arbitrary. In the light of what is stated above,
the learned Single Judge could not refuse the
grant of interest exercising discretion as
against the mandatory provisions contained in
Section 7 of the Act. The Division Bench, in our
opinion, committed an error in assuming that
the learned Single Judge could exercise the
discretion in the matter of awarding interest
and that such a discretion exercised was not
arbitrary.
10. In the light of the facts stated and for the
reasons aforementioned, the impugned order
cannot be sustained. Consequently, it is set
aside. The respondent is directed to pay
interest @ 10% on the amount of gratuity to
which the appellant is entitled from the date it
became payable till the date of payment of the
gratuity amount. The appeal is allowed
accordingly with cost quantified at Rs.
6. Adverting to the facts herein, this Court
notices that the Government Resolution has been
passed by the State on 11-13/4/09 wherein the
limit of gratuity was raised to Rs.10 Lacs. The
facts remains that the entire sum had become due
to the petitioner who retired on 14.06.2011. For
no fault of the petitioners, the entire amount of
gratuity had not been paid well within the time
period and it had been paid in two parts i.e.
Rs.3.50 Lakhs on 14.09.2011 and remaining
amount of Rs.6.50 Lakhs on 10.10.2014. Hence,
for the late payment of Rs.6.50 Lakhs, there is no
jurisdiction and the petitioners have made out
their case to that extent. This Court is therefore of
the opinion that respondent is required to be
directed to pay simple interest @ 9% on the
amount of gratuity paid late i.e. Rs.6.00 Lacs to
which the petitioner was entitled from the date it
become payable till the date of payment of the
gratuity amount, i.e. from 14.09.2011 to
7. With the above observations and directions,
these petitions stand disposed of.”
8. Accordingly the case of the petitioner is covered by
the decision reproduced herein above.
9. The petitioner retired in the year 2013 for no fault of
his. Mr.Jayraj Chauhan would rely on the following
decisions in support of his claim that the petitioner
is entitled to interest on the delayed payment of
gratuity.
(I) In case of D.D.Tiwari (D) Thr. Lrs vs Uttar
Haryana Bijli Vitran Nigam reported in (2014) 8
(II) In case of Union of India v. M.S.Abdulla
reported in (2006) 6 SCC 455
(III) In case of Vijay L. Mehrotra v. State of U.P.
& Others reported in (2001) 9 SCC 687
(IV) In case of Union of India and Another v.
M.C. Desai and Others reported in (1996) 11
(V) In case of H. Gangahanume Gowda v.
Karnataka Agro Industries Corpn. Ltd. reported
in (2003) 3 SCC 40
(VI) In case of Y.K.Singla v. Punjab National
Bank and Others reported in (2003) 3 SCC 472
10. The respondents are directed to pay to the petitioner
the amount of gratuity of Rs.10 lakhs within a period of
10 weeks from the date of receipt of copy of this order.
Since the petitioner superannuated on 14.06.2013 and
the amount of gratuity has been wrongfully withheld by
the respondents, the petitioner shall be entitled to
interest at the rate of 9% from the date of his
superannuation till the date of actual payment.
11. The petition is allowed in the aforesaid terms.
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The Gujarat High Court has reiterated that there is a clear mandate on the employer under the provisions of Section 7 to the Payment of Gratuity Act, for payment of gratuity within time and to pay interest on the delayed payment of gratuity. In light of the above, the Bench of Justice Biren Vaishnav directed the Sardar Patel University to pay Rs. 10 lakhs towards gratuity...
The Gujarat High Court has reiterated that there is a clear mandate on the employer under the provisions of Section 7 to the Payment of Gratuity Act, for payment of gratuity within time and to pay interest on the delayed payment of gratuity.
In light of the above, the Bench of Justice Biren Vaishnav directed the Sardar Patel University to pay Rs. 10 lakhs towards gratuity of the Petitioner, a retired reader, along with interest at 9% for wrongfully withholding the graturty since his retirement in 2013.
The direction was passed in petition filed under Article 226 of the Constitution where the Petitioner had prayed for the declaration that the action of the Respondents in not paying Rs. 10 lakhs along with 18% interest towards his gratuity, was arbitrary.
The Petitioner joined services as a lecturer at the Sardar Patel University from 04.10.1979 onwards. He was confirmed in service from 28.09.1986. It was the Petitioner's case that since his appointment was made after 01.04.1982 on the post of reader, his services had been counted towards the pension scheme. He retired from service on 14.06.2013.
The Petitioner claimed that he was entitled to Rs. 10 lakhs gratuity in view of a notification of 2010 pursuant to which the gratuity amount was enhanced from Rs. 3,50,000 to 10 lakhs. There were amendments in Section 4(3) of the Payment of Gratuity Act wherein the State extended this amount to CPF beneficiaries from 2010.
Per contra, the AGP contended that the Petitioner was covered by the CPF scheme and not entitled to gratuity.
The Bench noted that the Petitioner's retirement indicated that GPF was deducted from his salary. Therefore, he was governed by the GPF scheme. Additionally, in an earlier Civil Application with identical facts, the question of gratuity of Rs. 10 lakhs was raised. The High Court had then relied on H.Gangahanume Gowda Vs. Karnataka Agro Industries Corporation Ltd (2003) 3 SCC 40 to observe that the interest was payable on delayed payment of gratuity. It was also held that the same was "mandatory and not discretionary."
The Government had raised the amount of gratuity to Rs. 10 lakhs and the Petitioner therein had retired in 2011 was entitled to interest due to non-payment of gratuity worth Rs. 6.50 lakhs apart from 9% interest.
Noting that the Petitioner in the instant case had retired on 2013 "through no fault of his", the Bench opined that he was entitled to interest on the delayed payment of gratuity in accordance with D.D.Tiwari (D) Thr. Lrs vs Uttar Haryana Bijli Vitran Nigam and other. Justice Vaishnav remarked,
"Since the petitioner superannuated on 14.06.2013 and the amount of gratuity has been wrongfully withheld by the respondents, the petitioner shall be entitled to interest at the rate of 9% from the date of his superannuation till the date of actual payment," it said.
Case Title: ASHVINKUMAR RAMNIKLAL JANI Versus STATE OF GUJARAT
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Petition (crl) Nos. 353 and 491 of 1988.
(Under Article 32 of the Constitution of India).
A.S. Pundir for the Petitioners.
PG NO 1025 V.C. Mahajan, Mrs. A. Katiyar, Dalveer Bhandari and Ms. Subhashini for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These two petitions under Art, of the Constitution are for issue of a writ of Habeas Corpus for the release of Ram Ratan and Hawa Singh, who have been detained under sec.
3(2) of the of 1980.
Ram Ratan was a Head Constable and Hawa Singh was a Constable in the Security Unit of Delhi Police.
While on duty, they were together said to have committed a cognizable Offence under Sec.
392/34 of IPC along with a member of the public.
Immediately thereafter they were arrests and placed on suspension.
The Court.
however released them on bail While the case was under investigation the Commissioner of Police, Delhi (Mr. Vijay Karan) thought fit the detam them under the .
Accordingly.
he made them orders which are impugned herein.
Subsequently.
they have been summarily dismissed from service under Article 3 11(ii)(b) of the Constitution.
The principal contention urged for the petitioners relates to the oft repeated question that the ground of detention has no nexus to the `public order ' but purely a matter for "law and order".
In order to appreciate the contention urged in this regard it will be necessary to have regard to the orders of detention.
The orders passed against the two detenu are on different dates,but are similar in terms and it may be sufficient if we refer to one of the orders.
The ground of detention in each case relates to one incident which has been stated as follows: That on 22.7.88, one Shri Jasbil Singh S/o Shri Inder Singh R/o 5869/3 Ambala City (Haryana) reported that on 21.7.88 he purchased some T.V. parts from Lajpat Rai Market.
After purchase, he loaded the TV parts on rickshaw and asked the rickshaw puller Shanker S.o Shri Vasudev R/o Old Lajpat Rai Market.
Near Hanuman Mandir, who was known to him to take the parts to Patiala Transport near Libra Service Station G.T.K. Road.
He himself went alone to Patiala Transport and waited for the rickshaw puller.
At about 11.00 pm.
the rickshaw puller informed him that two police PG NO 1026 personnel namely H.C. Ram Ratan and Constable Hawa Singh who were previously posted in P.S. Kotwali along with a member of the public Prabhu Dayal who he knew has stopped his rickshaw near B block, Industrial Area, G.T.K. Road.
Head Constable Ram Ratan caught him and started beating him and asked for a receipt for the goods.
Constable Hawa Singh and Prabhu Dayal removed the parts and loaded in a TSR and went away.
" It was also stated that those T.V. parts were recovered from the detenu and the case was registered under sec.
392/34 IPC in which the investigation was progressing.
There then, it was said: From the above criminal activity of Shri Ram Ratan it is clear that he, being a Police Officer and bound to provide security and safety to the public, has himself committed a heinous offence which has created a sense of insecurity in the minds of public at large and is pre judicial to the maintenance of public order.
Keeping in view the above criminal activity of the said Head Constable Ram Ratan, it has been felt necessary to detain him u/s 3(2) of the National Security Act, 1981 so that his such activity which is prejudicial to the maintenance ot public order could be stopped.
xxx xxx.xxx xxx Sd/ (Vijay Karan) COMMISSIONER OF POLICE: Delhi As is obvious from the order, the Commissioner was satisfied with the need to detain the person, firstly because, the person being a police officer was bound to provide security and safety to the public and secondly, the offence committed was "heinous" which has created a sense of insecurity in the minds of the public at large.
The same was highlighted before us by Shri Mahajan, learned counsel for the respondents justifying the detention orders.
The Counsel argued that though the incident in question was a simple case of robbery, since it was PG NO 1027 committed by persons belonging to the disciplined police force, it would certainly disturb the public safety in the life of the community with a sense of Insecurity in their minds.
It is true that the detenu belonged to the police force in the national capital.
Public look for the police for safety.
Society regards them as their guardian for its protection.
Society needs a properly trained and well disciplined police force whom it can trust in all respects.
They are the real frontline of our defence against violence.
They have to maintain law and order.
They have to safeguard our freedoms and liberty.
They have to prevent crime and when crime is committed, they have to detect it and bring the accused to justice.
They must be available at all hours.
They are always expected to act and indeed must act properly.
it is reprehensible if they themselves indulge in criminal activities.
We are not, as we cannot, be unmindful of the danger to liberties of people when guardians of law and order themselves indulge in undesirable acts.
But the law of preventive detention is not different to police personnel.
It is the same law that we apply to police as well as to public.
We cannot, therefore, apply a different standard in respect of acts individually committed by any police officer.
The subjective satisfaction of the detaining authority with respect to the person sought to be detained should be based only on the nature of the activities disclosed by the grounds of detention.
The grounds of detention must have nexus with the purpose for which the detention is made.
The question in this case is whether the crime in question has any impact on `public order as such.
Courts have strived to give to this concept a narrower construction than what the literal words Suggest.
In the Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia Subba Rao, J., as he then was, observed (at 833): "But in lndia under article 19(2) this wide concept of public order is split up under different heads.
It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State, friendly relations will foreign States, public order, decency or morality.
or in relation to contempt of court, defamation or incitement to an offence.
All the grounds mentioned therein can be PG NO 1028 brought under the general head public order" in its most comprehensive sense.
But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap, they must be ordinarily intended to exclude each other.
"Public order is therefore something which is demarcated from the others.
In that limited sense, particularly in view of the history of the amendment, it can be postulated that `public order is synonymous with public peace, safety and tranquility.
" The impact on public order" and law and order" depends upon the nature of the act, the place where it is committed and motive force behind it.
If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only.
But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order.
This is precisely the distinguishing feature between the two concepts.
Sometimes as observed by Venkatachaliah, J. in Ayya Alias Ayub vs The State of U.P. & Anr.
Judgment today 1988 Vol.
4 p. 489 (at 496): `what might be an otherwise simple law and order situation might assume the gravity and mischief of a public order problem by reason alone of the manner or circumstances in which or the place at which it is carried out.
Necessarily, much depends upon the nature of the act the place where it is committed and the sinister significance attached to it.
As for example dare devil repeated criminal acts.
open shoot out throwing bomb at public places.
committing serious offences in public transept, armed persons going on plundering public properties of terrorising people may create a sense of insecurity in the public mind and may have an impact on public order.
Even certain murder committed by persons in lonely places with the definite object of promoting the cause of the party to which they belong may also affect the maintenance of public order .
In Abdul Aziz vs The Dist.
Magistrate Burdwan & Ors. ; this Court has stated so.
There two grounds were furnished to the detenu in justification of the order of detention.
It was stated: "firstly, that the petitioner and his associates were members of an extremist party (CPI ML), that on 16th August 1971, they armed themselves with lethal weapons like PG NO 1029 firearms, choppers and daggers with a view to promoting the cause of their party, that they raided the house of one Durgapada Rudra and murdered him and that the aforesaid incidents created a general sense of insecurity, as result of which the residents of the locality could not follow their normal avocations for a considerable period.
The second ground of detention is that on 22nd May, 1971 the petitioner and his associates raided the house of Smt.
Kshetromoni Choudhury and murdered one Umapada Mallick who was staring in that house.
This incident is also stated to have created a general sense of insecurity amongst the residents of the locality.
" Repelling the connection in that case that the two incidents referred to above are but simple cases of murder germane to law and order but could have no impact on public order Chandrachud, J. as he then vas, said (at p. 648): "A short answer to this contention is that the murders are stated to have been committed by the petitioner and his associates with the definite object of promoting the cause of the party to which they belonged.
These, therefore, are not stray or simple cases of murder as contended by the learned counsel.
Such incidents have serious repercussions not merely on law and order but On public order.
In Mohd. Dhana Ali khan vs State of West Bengal this Court had an occasion to consider the detention of a person under the maintenance of Internal Security Act, 1971 regarding a single instance of theft in a running train at night.
The acts attributed to the detenu in that case were that on 3.8.1973.
between 2110 and 2120 hrs.
, the detenu and his associate being armed with daggers boarded a 3rd class compartment of SL 257 UP train of E. Railway Sealdah Division at Gocharan Railway Station.
They put the passengers of the compartment to fear of death and snatched away a wrist watch and a gold necklace from one Nirmal Chatterjee and his wife in between Gocharan and Surajpur Railway Stations.
The they decamped with booty from the running train at Suryapur Railway Station.
It was contended in that case that the said single incident referred to have not even casual connection with the disturbance of public order.
Fazal Ali.
while rejecting that contention said (at 126).
`From a perusal of this we are unable to accept the PG NO 1030 contention of the petitioner that this ground has no nexus with the disturbance of public order.
It is true that the ground contains a single incident of theft of valuable property from some passengers travelling in a running train and may amount to robbery.
But that does not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act.
There are two pertinent facts which emerge from the grounds which must be noted.
In the first place the allegation is that the petitioner had snatched away a wrist watch and a gold necklace after putting the passengers of the compartment to fear of death.
Secondly, the theft had taken place at night in a running train in a third class compartment and the effect of it would be to deter peaceful citizens from travelling in trains at night and this would undoubtedly disturb the even tempo of the life of the community.
" We have carefully examined the act complained of in the present case in the light of the principles stated above.
It is an isolated criminal case with no sinister significance attached to it.
The offence was committed by two misguided police men under the cover of darkness with the assistance of a member of the public.
It was certainly suicidal to those two police personnel.
But it seems to have no connection whatsoever to disturb the `public order having regard to the circumstances of the case.
The last contention urged for the petitioners that the detention would be illegal in view of dismissal of detenu from service is really without merit.
The subsequent order of dismissal is not germane to of examine the validity of the detention.
In the result the rule is made absolute.
The orders of detention impugned in these cases are quashed.
The detenu Ram Ratan and Hawa Singh be set at liberty forthwith.
M.L.A. Petitions allowed.
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The detenu, in the writ petitions filed by the petitioners under Article 32 of the Constitution, belonged to the Security Unit of Delhi Police.
While on duty, they were alleged to have stopped a rickshaw puller who was carrying some goods to a transport company.
They caught hold of him and started beating him and asked for a receipt for the goods.
Thereafter they removed the goods from the rickshaw and went away in a T.S.R. The aforesaid goods was recovered from their possession and a case under Section 392/34 I.P.C. was registered against them.
Thereafter they were arrested and placed under suspension.
The court, however, released them on bail.
While the case was under investigation.
the Commissioner of Police, Delhi detained them u/s 3(2) of the on the ground that the above criminal activity of the detenu has created a sense of insecurity in the minds of public at large and is pre judicial to that maintenance of public order.
It was contended on behalf of the petitioners that the said orders are bad in law, since the ground of detention has no nexus to the`public order ', but purely a matter for `law and order '.
Counsel for the respondents, on the other hand argued that though the incident in question was a simple case of robbery, since it was committed by persons to longing to the disciplined police force, it would of certainly disturb the public safety in the life of the community with a sense of insecurity in their minds and therefore the detention orders were justified.
Allowing the writ petitions, HELD: (1) The orders of detention are quashed.
The detenu Ram Ratan and Hawa Singh are set at liberty forthwith.
[1030F] PG NO 1023 PG NO 1024 (2) The law of preventive detention is not different to police personnel.
It is the same law that is applied to police as well as to public.
Therefore, this Court cannot apply a different standard in respect of acts individually committed by any police officer.
[1027D] 3(i) The subjective satisfaction of the detaining authority with respect to the persons sought to be detained should be based only on the nature of the activities disclosed by the grounds of detention.
The grounds of detention must have nexus with the purpose for which the detention is made.
[1027E] 3(ii) The impact on `public order ' and `law and order ' depends upon the nature of the act, the place where it is committed and motive force behind it.
If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be matter of law and order only.
But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the `public order '.
What might be an otherwise simple `law and order ' situation might assume the gravity and mischief of a `public order ' problem by reason alone of the manner of circumstances in which or the place at which it is carried out.
Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it.
[1028C E] In the instant case, the offence was committed by two misguided police men under the cover of darkness with the assistance of a member of the public.
It is an isolated criminal case with no sinister significance attached to it.
It way certainly suicidal to those two police personnel.
But it seems to that 110 connection whatsoever to disturb the public order ' having regard to the circumstances of the case.
[1030D E] Superintendent, Central Prison, Fatehgarh vs ram Manohar Lohia, ; Ayya Alias Ayub vs The State of U.P, Aziz vs The Distt.
Magistrate Burdwan & Ors., ; and Mohd. Dhana Ali Khan vs State of West Benal,.
[1975] Suppl.
SC 124 followed.
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S.B. Criminal Misc(Pet.) No. 6068/2021
1. Alok Dhir S/o Shri L P Dhir, Aged About 61 Years, R/o C
361 Defence Colony, New Delhi.
2. Sasi Madathil S/o Shri Kondooli Raman Nair, Aged About
61 Years, working for gain at A 270 1st and 2nd Floor,
Defence Colony, New Delhi.
----Petitioners
Versus
1. State Of Rajasthan, Through PP
2. Harendar Singh S/o Dilip Singh, R/o C 22 Vaishali Marg,
Vaishali Nagar, Jaipur.
----Respondents
For Petitioner(s) : Dr. Abhishek Manu Singhvi, Sr. Adv
through VC
Mr. Sudhir Nandrajog, Sr. Adv
Mr. Ravi Bhansali, Sr. Adv
Mr. Vikas Balia
Mr. Saket Sikri
Mr. Ashu Kansal
Mr. Karan Batura
Mr. Nikhil Singhvi
Mr. Abhishek Mehta
Mr. Vipul Singhvi
Mr. Shubham Modi
Mr. Vipul Dharnia
Mr. Dhanesh Saraswat
For Respondent(s) : Mr. Saransh Saini through VC
Mr. Devendra Mahalana
Order
Heard learned counsel for the parties.
Mr. Abhishek Manu Singhvi, learned Senior Counsel
appearing for the petitioner submits that on identical facts, an FIR
bearing No. 605/2017 was registered at Jaipur, wherein the same
transaction was questioned and the Hon’ble Supreme Court vide
its order dated 23.10.2017 passed in Civil Appeal No. 16929 of
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(2 of 3) [CRLMP-6068/2021]
2017 arising out of SLP (C) No. 18195/2017 quashed the FIR No.
605/2017. Learned Senior Counsel submits that even in the
present FIR No. 37/2015, the police after investigation has filed
the negative final report stating therein that the case is of civil
nature. He further contends that the chronology of events shows
that the matter is of civil nature and the allegations levelled in the
FIR have already been adjudicated right up to the Hon’ble
Supreme Court and the same has been decided in their favour.
Learned Senior Counsel further submits that the petitioners are
ready and willing to appear before the trial court but the
petitioners have been summoned by issuing the warrant of arrest
straightaway without having been summoned earlier to this.
Matter requires consideration.
Issue notice to the respondents.
Mr. S.K. Bhati and Mr. M.S. Bhati, learned Public Prosecutor
put in appearance on behalf of the respondent no.1. Mr. Saransh
Saini, learned counsel accepts notice on behalf of respondent
No.2. Service is, therefore, sufficient. The petitioners shall supply
a copy of the petition along with requisite document to the counsel
for the respondents within a period of three days from today.
Mr. Saini seeks four weeks’ time to file reply to the petition.
Time prayed for is allowed.
Put up 13.12.2021.
I have considered the submissions made at Bar and also
gone through the order dated 23.10.2017 passed by the Hon’ble
Supreme Court, wherein, the Hon’ble Supreme Court while
quashing the FIR No. 605/2017 held as under:-
“This being the case, we are surprised that an
arbitration proceeding has been purported to be
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(3 of 3) [CRLMP-6068/2021]
started after the imposition of the said moratorium
and appeals under Section 37 of the Arbitration Act
are being entertained. Therefore, we set aside the
order of the District Judge dated 06.07.2017 and
further state that this effect of Section 14 (1) (a) is
that the arbitration that has been instituted after the
aforesaid moratorium is not est in law.
Mr. Jayant Bhushan, learned Senior Counsel,
also informs us that criminal proceeding being F.I.R
No. 0605 dated 06.08.2017 has bee taken in a
desperate attempt to see that the IRP does not
continue with the proceeding under the Insolvency
Code which are strictly time bound. We quash this
proceeding.”
From the overall facts and circumstances of the case, it
is borne out that the present proceedings arise out of the FIR No.
37/2015, wherein, the allegations levelled against the petitioners
are almost the same as that of the FIR No. 605/2017 and are
related to the same transactions. It is noted that the proceedings
arises out of the non-repayment of the loan of Rs. 25 Crores, the
proceedings undertaken before the NCLT, NCLAT, and the Hon’ble
Supreme Court appear to be of civil nature. Further in FIR No.
37/2015, the police after thorough investigation has given the
negative final report.
Taking into account all the facts and circumstance of the
case, it is ordered that in the meantime and till the next date of
hearing, effect and operation of the order dated 12.02.2020 and
consequential orders dated 31.03.2021 and 01.10.2021 passed by
the Chief Judicial Magistrate, Jaisalmer shall remain stayed to the
extent of summoning the petitioners through warrant of arrest.
233-Shahenshah/-
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An order passed by a Jaisalmer court on February 12, 2020 issuing non-bailable arrest warrants against Dhir and Dhir managing partner, Alok Dhir in relation to the State Bank of India (SBI) loan scam, was stayed by the Rajasthan High Court on Tuesday (Alok Dhir & Ors. vs. State of Rajasthan).
Single-judge Justice Vinit Kumar Mathur of Jodhpur Bench stayed the order passed by Chief Judicial Magistrate (CJM), Jaisalmer.
"Taking into account all the facts and circumstance of the case, it is ordered that in the meantime and till the next date of hearing, effect and operation of the order dated 12.02.2020 and consequential orders dated 31.03.2021 and 01.10.2021 passed by the Chief Judicial Magistrate, Jaisalmer shall remain stayed to the extent of summoning the petitioners through warrant of arrest," the High Court ordered.
The stay will remain in effect till the next date of hearing.
The Court also issued notice to the State of Rajasthan over the manner in which it had issued arrest warrant against Dhir straightaway without summoning him earlier.
"Matter requires consideration. Issue notice to the respondents," the Court said in this regard.
The present case arose from a first information report (FIR) registered in the year 2015 in connection with Jaisalmer Hotel Project, which was financed by the SBI in 2007.
The police had conducted an investigation and a closure report was initially filed in the case.
Thereafter, the complainant filed a protest petition which was allowed by the CJM of Jaisalmer by an order dated February 12, 2020 on the ground that cognizable offences against the petitioners were made out under Sections 420, 409 and 120B of the Indian Penal Code.
The CJM had directed that after compliance with Section 204 CrPC, the petitioners must be summoned through an arrest warrant.
Senior Advocate Abhishek Manu Singhvi appearing on behalf of Dhir, submitted before the High Court that on identical facts, an FIR was registered at Jaipur, wherein the same transaction was questioned.
However, the Supreme Court by its order dated October 23, 2017, had quashed that FIR.
Even in the present FIR, the police had initially filed a closure report, he pointed out.
It was also his argument that the matter was of civil nature and had already been adjudicated right up to the Supreme Court.
The Court agreed with the submission stating that the allegations in the present case are similar to the one in the Jaipur FIR which had been quashed by the Supreme Court
"From the overall facts and circumstances of the case, it is borne out that the present proceedings arise out of the FIR No. 37/2015, wherein, the allegations levelled against the petitioners are almost the same as that of the FIR No. 605/2017 and are related to the same transactions. It is noted that the proceedings arises out of the non-repayment of the loan of Rs. 25 Crores, the proceedings undertaken before the NCLT, NCLAT, and the Hon’ble Supreme Court appear to be of civil nature," the order said.
Further in the present, the police after thorough investigation had initially given a negative final report, the Court noted.
It, therefore, stayed the warrant of arrest against Dhir and another accused Sasi Madathil.
The matter will now be heard on December 13, 2021.
The Delhi High Court had earlier granted transit anticipatory bail to Dhir and Madathil to enable them to move appropriate court in Rajasthan for relief.
The Petitioners were also represented by Senior Advocates Sudhir Nandrajog and Ravi Bhamsali along with Advocates Vikas Balia, Saket Sikri, Anshu Bansal, Karan Batura, Nikhil Singhvi, Abhishek Mehta, Vipul Singhvi, Shubham Modi, Vipul Dharnia, Dhanesh Saraswat. Public Prosecutors SK Bhati and MS Bhati appeared on behalf of State of Rajasthan.
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Appeals Nos. 220 to 223 of 1953.
Appeals from the Judgment and decrees dated April 14,1943, of the Bombay High Court in Appeals Nos. 183, 184, 185 and 186 of 1942, arising out of the judgments and decrees dated February 16, 1942, of the Court of the 1st Class Sub Judge, Poona, in Suits Nos.
900/37, 392/35, 875/36 and 1202/33.
V. P. Rege and Naunit Lal, for the appellants.
N. C. Chatterjee, K. V. Joshi and Ganpat Rai, for respondents Nos.
1 to 6 (In all the Appeals).
478 1959.
March 26.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These four appeals represent the last stage of a long and tortuous litigation between the appellants Waghmares (also called Guravs) who claim the rights of hereditary worshippers in the Shree Dnyaneshwar Maharaj Sansthan, Alandi, and respondents 1 to 6 who are the trustees of the said Sansthan.
Alandi , which is a small town situated on the banks of the river Indrayani at a dis tance of about 14 miles from Poona, is regarded as a holy place of pilgrimage by thousands of Hindu devotees.
In the last quarter ' of the 13th century Shree Dnyaneshwar Maharaj, the great Maharashtra Saint and Philosopher, lived at Alandi.
He was a spiritual teacher and reformer; by his saintly life and his inspiring and illuminating commentary on the Bhagvad Gita, known as Dnyaneshwari, he helped to create a popular urge and fervour for religious and social revolution which led to the foundation of a devotional cult; the followers of this cult are known as Warkaris in Maharashtra.
They refuse to recognise any barriers of caste or class; and amongst them prevails a feeling of real and genuine spiritual brotherhood.
Every year, in the months of July and November, thousands of them proceed on pilgrimage on foot and accompany the annual palanquin procession from Alandi to Pandharpur.
Pandharpur is the chief centre of pilgrimage in Maharashtra and it is regarded by devotees as the Banares of Southern India.
About 1300 A. D. Shree Dnyaneshwar Maharaj took Samadhi at Alandi and since then Alandi also has become a place of pilgrimage.
In or about 1500 A. D. a big temple was erected in front of the idol of Shiva called Siddeshwar where the said Shree Dayaneshwar Maharaj took his Samadhi.
In due course the Mahratta Kings and the Peshwas of Poona granted the village of Alandi in inam for the upkeep of the temple and the Samadhi.
About 1760 A. D. Peshwa Balaji Baji Rao framed a budget called Beheda or Taleband in order to regulate the management and worship of the shrine and provided for proper 479 administration of its annual revenue amounting to Rs. 1,725.
The appellants claim that their ancestors were then in possession of the temple and management of its affairs especially the worship of the shrine.
The budget framed by the Peshwa shows that out of the sum of Rs. 1,725 an amount of Rs. 361 was assigned to the worshippers for some of their services.
After the fall of the Mahratta power the management of Alandi passed into the hands of the East India Company which continued the old arrangement without any interference.
In 1852, under orders from the Government of Bombay the Collector of Poona drew up a yadi or memorandum appointing six persons as Punchas (trustees) with directions to them for the management of the temple in accordance with the old tradition and practice as well as for the administration of the revenue of the village subject to the control and sanction of the Collector.
This arrangement came to be described as " the scheme of 1852".
In 1863 the Religious Endowment Act was passed, and inconsequence, in 1864 the Government of Bombay withdrew their superintendence over the affairs of the Alandi Sansthan; and the trustees continued to manage the affairs of the temple without any supervision on the part of the Government.
It was during this period that the appellants ' ancestors began to assert that they were the owners of the shrine while the trustees insisted on treating them as the servants of the shrine.
This conflict inevitably led to several disputes between the worshippers and the trustees.
Matters appear to have come to a crisis in 1911 when the trustees dismissed eleven Guravs from the temple service on the ground that they were found guilty of gross misconduct.
The Guravs nevertheless asserted that they were the owners of the shrine and that the trustees had no authority or power to dismiss them.
Taking their stand on their ownership of the shrine some of the dismissed Guravs filed Civil Suit No. 485 of 1911 in the Court of the Subordinate Judge, Poona, against the trustees and this was the beginning of the long drawn out litigation which followed between the parties.
In that suit the Guravs 480 claimed a declaration that they were the owners of the temple and not the servants of the temple committee; and as owners they were entitled to perform the worship at the shrine and to appropriate the offerings made to the idol of the Saint.
This claim was resisted by the trustees who pleaded that the Guravs were merely the servants of the temple committee and not the owners at all.
On April 20, 1917, the learned trial judge dismissed the suit because he held that the Guravs were not the owners of the shrine and were not entitled to the declarations claimed by them.
Against this decision the Guravs preferred several appeals but these appeals were dismissed on August 3, 1921.
While dismissing their appeals the High Court incidentally expressed the view that it was open to the Guravs to come to terms with the temple committee and that the terms on which the Guravs could be reinstated can be decided appropriately in a suit filed under section 92 of the Code of Civil Procedure.
It was also observed by the High Court in its judgment that the temple committee did not dispute the fact that the Guravs were the hereditary pujaris and that they had some rights in that capacity.
No doubt the committee claimed that under the scheme framed in 1852 it was competent to dismiss hereditary servants for a substantial cause such as gross misconduct.
It appears that instead of adopting the course indicated in the judgment of the High Court and filing a suit under section 92 of the Code, the Guravs chose to take the law into their own hands, and obtained forcible possession of the temple premises on July 25, 1922, and began to perform the puja and to take the offerings placed before the deity as they had been doing prior to their dismissal.
This was followed by a suit filed by the trustees on September 12, 1922 (Suit No. 1075 of 1922) under section 9 of the Specific Relief Act.
This suit terminated in a decree in favour of the committee on November 4, 1922.
In pursuance of this decree the committee recovered possession of the temple on November 16, 1922.
Thus the Guravs had occupied the temple precincts for about three and a half months.
481 When the Guravs were thus dispossessed by the committee in execution of the decree obtained by it, some of them proceeded to file Suit No. 19 of 1922 in the District Court of Poona; this suit purported to be one under section 92 of the Code but it claimed the same reliefs as had been claimed by the Guravs in theirs earlier suit of 1911.
On April 25, 1927, the District A Court dismissed this suit on the ground that the Guravs could not reagitate the same questions over again.
it was held that their claim was barred by the deci sion of the earlier Suit No. 485 of 1911.
Against this decision the Guravs appealed to the High Court (First Appeal No. 507 of 1927); but the High Court agreed with the conclusion of the District Court and dismissed the Guravs" appeal on June 20, 1933.
It was held by the High Court that the suit as framed was not properly constituted under section 92 of the Code.
It was at this stage that a properly constituted suit, No. 7 of 1934, was filed under section 92 of the Code by the general public of Alandi along with two Guravs in the District Court at Poona.
This suit claimed that a proper scheme should be framed for the management of the temple.
Even so, one of the allegations made in the plaint referred to the Guravs ' rights as hereditary worshippers.
It was apparently apprehended that this allegation would be treated as outside the scope of a scheme suit under section 92 and so the Guravs took the precaution of filing four separate suits on behalf of four branches in the Waghmare family one after the other.
These suits were numbered as 1202 of 1933, 392 of 1935, 875 of 1936 and 900 of 1937; the plaintiffs in these suits were respectively the members of the third, the fourth, the first and the second branch of the Waghmare family '.
It appears that the hearing of these suits were stayed by an order of the District Judge pending the final decision of the scheme suit which was being tried by him.
The scheme suit was taken, up for hearing in 1937.
As many as 22 issues were framed in this suit and voluminous evidence Was recorded.
In the result the learned judge substantially confirmed the original 61 482 scheme of 1852, though he issued certain directions modifying it.
This decree was passed on December 11, 1937.
The trustees felt aggrieved by this decree and challenged its propriety by preferring an appeal, No. 92 of 1938, in the Bombay High Court.
On November 16, 1939, the High Court dismissed the appeal though it made some amendments in the scheme framed by the District Judge by consent of the parties.
After the scheme suit was thus disposed of by the High Court, the four suits filed by the pujaris were taken up for trial by the learned Subordinate Judge, First Class, Poona.
In all these suits the appellants claimed their rights as hereditary vatandar Pujari Gurav Servants of the Sansthan.
They alleged that they were under a duty to perform worship according to certain rites in Shree Dayaneshwar Sansthan and that they were also under an obligation to perform other incidental duties enumerated by them in their plaints.
Likewise they claimed that for remuneration they were entitled to receive coins and perishable articles offered by the devotees and the committee as well as yearly emoluments from the committee.
On these allegations the appellants claimed a declaration about their respective rights and an injunction permanently restraining the trustees from obstructing the appellants in the exercise of the said rights.
They also claimed accounts from the trustees in regard to the offerings prior to the institution of the suit as well as those made after the institution of the suit and before the passing of the decree.
These allegations were denied by respondents 1 to 6.
Their case was that the appellants were the servants of the temple committee and as such had no hereditary rights set up, by them.
In the alternative, it was pleaded by them that even if the appellants had any hereditary rights the same had been lost by their misconduct and had been otherwise extinguished by limitation.
Against the appellants ' claim pleas of res judicata and estoppel were also raised.
On these pleadings as many as 21 issues were framed in the trial court.
The trial court found in favour 483 of the appellants on all the issues.
The learned judge held that the Guravs had established the hereditary rights set out by them and he was inclined to take the view that the respondents could not deprive the appellants of their hereditary rights of service because of the misconduct of some of their ancestors.
He also found that there was no substance in the plea of estoppel or res judicata and that the suits were not barred by limitation.
In the result the appellants ' suits were decreed on February 16, 1942.
Thereupon the respondents challenged these decrees by preferring appeals against them in the Bombay High Court.
The four suits accordingly gave rise to First Appeals Nos.
183, 184, 185 and 186 of 1942 respectively.
In these appeals the High Court agreed with the trial court in holding that on the merits the appellants had established their case and that their claim was not barred either by res judicata or by estoppel.
However, on the question of limitation the High Court took the view that the appellants ' suits were governed by article 120 of the Limitation Act and that they had been filed beyond the period of six years prescribed by the said article.
That is why the High Court set aside the decrees passed by the trial court, allowed the respondents ' appeals and dismissed the appellants ' suits.
However, in view of the special facts of the case the High Court directed that each party should bear its own costs throughout.
This judgment was pronounced on April 14, 1943.
Like the trial court the High Court also dealt with all the four cases by one common judgment.
It appears that after this judgment was pronounced by the High Court but before it Was signed, the appellants moved the High Court on July 2, 1943, for a rehearing of one of the appeals (No. 186 of 1942).
It was urged before the High Court that even if article 120 applied the claim made by the appellant in the said appeal (which arose from Suit No. 1202 of 1933) could not be held to be barred by limitation.
The High Court was not impressed by this plea and so the motion for rehearing was discharged.
Subsequently a Civil Application, No. 1039 of 1944, 484 was made by the appellant in the said appeal seeking to raise the same point over again but this application was rejected by the High Court on September 12, 1944.
The appellants then applied for leave to appeal to the Privy Council on August 15, 1944.
Their applications were heard together and were disposed of by an order passed on March 26, 1946, whereby leave was granted to them to appeal to the Privy Council and their prayer for consolidating all the appeals was also allowed.
These appeals could not, however, be disposed of by the Privy Council before the jurisdiction of the Privy Council to deal with Indian appeals came to an end and so they ultimately came to this Court and were numbered as Appeals Nos. 220 to 223 of 1953.
It may be convenient to state that these appeals arise respectively from Suits Nos.
907 of 1937, 392 of 1935, 875 of 1936 and 1202 of 1933.
It would thus be seen that the litigation which began between the parties in 1911 has now reached its final stage before us in the present appeals.
As we have already indicated, both the courts below have found in favour of the appellants on most of the issues that arose in the present litigation; but the appellants have failed in the High Court on the ground of limitation.
In the trial court the respondents had urged that the present suits were governed by article 124 of the Limitation Act and that since the Guravs had been dismissed from service in 1911 and other Guravs refused to serve in 1913 and 1914 limitatation began to run against them at least from 1914 and so the suits were beyond time.
The learned trial judge held that article 124 was inapplicable.
He also found alternatively that, even if the said article applied, the trustees did not have continuous possession of the suit properties from 1911 or 1914 for twelve years and so the suits were not barred by time.
According to him the case was really covered by section 23 of the Limitation Act, and so the plea of limitation could not succeed.
The High Court has agreed with the trial court in holding that article 124 is inapplicable.
It has, however, 485 come to the conclusion that the suits are governed by article 120 of the Limitation Act, and, according to its findings, limitation began to run against the appellants either from September 12, 1922, when the trustees filed their suit under section 9 of the Specific Relief Act, or, in any case from November, 1922 when, in execution of the decree passed in the said ' suit, the appellants were driven out of the temple precincts by the trustees.
The High Court has also held that section 23 can have no application to the present case.
That is how the High Court has reached the conclusion that the appellants ' suits are barred by time under article 120.
The question which arises for our decision in the present appeals, therefore, is one of limitation; it has to be considered in two aspects: Was the High Court right in holding that article 120 applies and that the cause of action accrued more than six years before the dates of the institution of the present suits ?; Was the High Court also right in holding that section 23 does not apply to the suits ? On behalf of the appellants Mr. Rege has contended that in substance, in their present suits the appellants have made a claim for possession of an hereditary office and as such they would be governed by article 124 of the Limitation Act.
In this connection he has referred us to the relevant allegations in the plaint to show that the appellants ' prayer for a declaration about their hereditary rights and for a consequential permanent injunction amount to no more and no less than a claim for possession of the said hereditary office.
In support of this argument reliance has been placed on the decision of the Bombay High Court in Kunj Bihari Prasadji vs Keshavlal Hiralal (1).
In that case the plaintiff had made a claim to the gadi of the Swaminarayan temple at Ahmedabad and had asked for a declaration that the will of the last Acharya which purported to appoint defendant 14 as his adopted son and successor was null and void.
As a consequence a perpetual injunction was also claimed restraining the defendants from offering any obstruction to the plaintiff in occupying the said gadi.
The (1) Bom.
567. 486 principal point which was decided in the case had reference to the effect of the provisions of section 42 of the Specific Relief Act.
, The plaintiff 's suit had been dismissed in the courts below on the ground that he had omitted to ask for further relief as he was bound to do under section 42 of the said Act and the High Court held that the section did not empower the court to dismiss the suit under the said section.
In considering the nature of the claim made by the plaintiff Jenkins, C. J., observed that " in the plaintiff 's view the suit was not one of possession of land appertaining to the gadi but to determine who was to occupy the gadi and thus as gadinishin become the human agent of the deity.
If that was so, then the injunction restraining all interference with the occupancy by the plaintiff of the gadi secures in the most complete manner to him the rights he claims ".
The learned Chief Justice also observed that " the plaintiff might in terms have asked for possession of the office he said was his ", but be asked " how would practical effect be given to an award of possession of office otherwise than by preventing interference with the rights of which it was made up ".
Even so, having reversed the decree passed by the courts below, when the High Court remanded the case for retrial, the plaintiff was advised to amend his plaint and to define more precisely the terms of the injunction he sought.
It is urged that, in the present appeals also, by asking for a declaration of their rights and for an appropriate injunction against the respondents, the appellants were in effect asking for possession of the hereditary office.
It is doubtful if the claims made by the appellants in their respective suits are exactly analogous to the claim made by the plaintiff in Kunj Bihari Prasad 's case (1).
The appellants have not only asked for an injunction but also for an account of the income received by the trustees from July 23, 1933, up to the date of the suit as well as for similar account from the date of the suit until the date of the decree.
A claim for accounts in the form in which it is made may not be quite consistent with the appellants ' contention that their suits are for nothing more than possession (1) Bom.
567. 487 of the hereditary office ; but in dealing with the present appeals we are prepared to assume that they have in substance claimed possession of the office.
The question which then arises is: Does this claim for possession attract the application of article 124 of the Limitation Act ? Article 124 governs suits for possession of an hereditary office.
The period of limitation prescribed by the article is twelve years and the said period begins to run when the defendant takes possession of the office adversely to the plaintiff.
This is explained to mean that the hereditary office is possessed when the profits thereof are usually received or (if there are no profits) when the duties thereof are usually performed.
It is clear that before this article can apply it must be shown that the suit makes claim for possession of an office which is hereditary; and the claim must be made against the defendant who has taken possession of the said hereditary office adversely to the plaintiff.
Unlike article 142 the fact that the plaintiff, is out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office.
What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period.
As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office; but if the defendant merely receives the profits but does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office.
The cause of action for possession in suits falling under article 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question.
Claims for possession of hereditary offices which attract the application of this article are usually made by holders of the said offices against persons who claim adverse possession of the said offices; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question.
In the present appeals the claim for possession is 488 made by the appellants against the trustees of the Sansthan.
It is significant that the persons who are actually performing the duties of the worshippers are not impleaded ; and they do not claim to hold office as hereditary officers either.
They have been appointed by the trustees as servants of the institution and they perform the duties of worship as such servants.
The trustees, on the other hand, cannot be said to have taken possession of the office themselves adversely to the appellants.
They do not take the profits themselves nor do they perform the duties associated with the said office.
They have, in exercise of their authority and power as trustees, dismissed the appellants ' predecessors from office and have made fresh appointments of servants to perform the worship at the Sansthan; and in making the said appointments, have in fact destroyed the hereditary character of the office.
The dispute in the present appeals is between the worshippers who claim hereditary rights and the trustees of the institution who claim to have validly terminated the services of some of the predecessors of the appellants and to have made valid appointments to the said office.
It is, therefore, impossible to accept the argument that the claim made by the appellants in their respective suits attracts the provision& of article 124.
It is conceded by Mr. Rege that if article 124 does, not apply, the suits would be governed by article 120 which is a residuary article.
It may prima facie appear somewhat strange that whereas a suit against a person claiming to hold the hereditary office adversely to the plaintiff is governed by a period ' of twelve years, a claim against the trustees like the respondents in the present appeals who have dismissed the hereditary worshippers should be governed by a period of six years.
It may be possible to suggest that there is a substantial difference in the nature of the two disputes ; but apart from it, it is well known that the artificial provisions of limitation do not always satisfy the test of logic or equity.
Mr. Rege, however, argued that in determining the scope of article 124 we need not consider the provisions of col. 3 to the said article.
His contention appears 489 to be that once it is shown that the suit is for possession of an hereditary office, article 124 must apply though the claim for possession may not have been made ,against a person who has taken possession of the office adversely to the plaintiff.
He also urged alternatively that the trustees should be deemed to have, taken possession of the office adversely to the appellants.
We have already held that the conduct of the trustees shows that they have not taken possession of the office adversely within the meaning of col. 3 of article 124; and we do not think it is possible, to ignore the provision of col. 3 in deciding whether or not article 124 applies.
It is true that in Jalim Singh Srimal vs Choonee Lall Johurry (1), while holding that the adjustment on which the plaintiff 's claim was based in that case was in time both under articles 115 and 120, Jenkins, C. J, has observed that the function of the third column of the second schedule is not to define causes of action but to fix the starting point from which the period of limitation is to be counted ; but this observation does not support the appellants ' case that article 124 would govern the suit even though the third column is wholly inapplicable to it.
That obviously is not the effect of the observations made in Jalim Singh 's case (1).
The question about the nature and scope of the provisions of article 124 has been considered by the Madras High Court in Thathachariar vs Singarachariar (2).
" If we take into consideration the terminology used in the three columns of article 124 ", observed Srinivasa Aiyangar, J., in that case, " it is clear that the nature of the suit intended to be covered by that article must be a suit filed by a plaintiff who claims the office from a person who at that time holds the office himself ".
In our opinion this view is correct.
We may also refer to another decision of the Madras High Court in which this question has been considered.
In Annasami vs Adivarachari (3) a Full Bench of the Madras High Court was dealing with a suit in (1) (2) A.I.R. 1928 Mad, 377.
(3) I.L.R. 62 490 which the plaintiff had claimed an injunction restraining the trustee and the archakas of the Sri Bhuvarabaswami temple at Srimushnam from interfering with the performance of the duties of his office of mantrapushpam of the temple.
This suit had been filed in 1929.
The office of mantrapushpam was a hereditary office and the plaintiff had succeeded to it on the death of his father in 1906.
The emoluments of the office consisted of a ball of cooked rice per them and twelve annas per month.
It appears that the plaintiff was a Vadagalai while the archakas of the temple were Thengalais and there was animosity between them; and as a result of this animosity the plaintiff bad never been able to perform the duties of his office.
It was common ground that the plaintiff was the lawful holder of the office and that he had been receiving its emoluments month by month until 1927.
The archakas who resisted the plaintiff 's claim did not claim that they were in possession of the office or that they had performed the duties of the said office.
The Full Bench held that, where a person is admittedly the lawful holder of the office and he is enjoying its emoluments, he must in law be regarded as being in possession of the office itself, especially where no one else is performing the duties of the said office; and so under article 124 it was enough for the plaintiff to show that he had been in receipt of the emoluments of the office to save his claim from the bar of limitation.
The Full Bench also rejected the contention that under article 120 the suit was barred because it was held that every time the trustee and the archakas prevented the plaintiff from performing his duties as a hereditary officer a. fresh cause of action arose and so there can be no bar of limitation under article 120.
It would be noticed that the basis of this decision was that, in the eyes of law, the plaintiff was in possession of the hereditary office since he was receiving the emoluments of the said office month by month, and so every act of obstruction on the part of the archakas and the trustee was in the nature of a continuing wrong which gave rise to a fresh cause of action to the plaintiff from time to time.
In other words, on the facts the Full Bench held that 491 s.23 helped the plaintiff and saved his suit from the bar of limitation.
As we will presently point out there is no scope for applying section 23 to the facts of the present cases, and so the decision in Annasami Iyengar 's case (1) cannot assist the appellants.
In this connection it is relevant to consider the decision of the Privy Council in Jhalandar Thakur vs, Jharula Das (2) in which it was held that article 124 was inapplicable.
The defendant Jharula Das had obtained a decree for money on a mortgage which bad been executed in his favour by Mst.
Grihimoni, the widow of the shebait of the temple.
In execution of the said decree the defendant had caused 3 1/2 as.
share of the judgment debtor including her right in the nett income of the daily offerings made before the idol to be put up for sale and had himself purchased it at the auction sale.
As such purchaser he was in possession of the income of the said share.
The judgment debtor attempted to challenge the said sale by two suits but her attempts failed and the ' auction purchaser continued to be in possession of the income.
On the death of Mst.
Grihimoni, Bhaiaji Thakur, who succeeded to the office of the shebait, sued the defendant for possession of certain lands and claimed a declaration that he was entitled to receive the 3 1/2 as.
share of the nett income from the offerings to the temple with other reliefs.
This claim was resisted by the defendant Jharula Das.
In regard to the plaintiff 's claim in respect of the said 3 1/2 as share, the High Court had held that article 124 applied and that the claim was barred under the said article.
That is why the decree passed by the trial court in favour of the plaintiff in respect of the said income was reversed by the High Court.
This decision was challenged by the plaintiff before the Privy Council and it was urged on his behalf that article 124 did not apply.
The Privy Council upheld this contention.
It was clear that the office of the shebait of the temple was a hereditary office which could not be held by anyone who was not a Brahmin Panda.
Jharula Das was not a Brahmin Panda.
He was of an inferior caste and was not (1) I.L.R. (2) Cal.
492 competent to hold the office of the shebait of the temple, or to provide for the performance of the duties of that office.
On these facts the Privy Council held that the appropriation from time to time by Jharula Das of the income derivable from the said 3 1/2 as share did not deprive Mst.
Grihimoni, and after her death, Bhaiaji Thakur, of the possession of the office of the shebait although that income was receivable by them .in right of the shebaitship.
The basis of this decision is that, on each occasion on which Jharula Das received and wrongfully appropriated to his own use a share of the income to which the shebait was entitled, he committed a fresh actionable wrong in respect of which a suit could be brought against him by the shebait; but it did not constitute him a shebait for the time being or affect in any way the title of the office.
Thus this decision emphasises that for the application of article 124 it is essential that the defendant to the suit must be in adverse possession of the hereditary office in question.
We must, therefore, hold that article 124 does not apply to the suits filed by the appellants; and as we have already observed, if.
article 124 does not apply, article 120 does.
The next point which arises for our decision is whether under article 120 the suits are barred by limitation.
Under article 120 time begins to run against the plaintiffs when the right to sue accrued to them, and that naturally poses the question as to when the right to sue accrued to the appellants.
In deciding this question it would be necessary to recall briefly the material facts in regard to the past disputes between the appellants and the trustees.
These disputes began in 1911.
On January 31, 1911, the trustees wrote a yadi (memorandum) to the Collector of Poona asking his permission to dismiss eleven Guravs from service.
They set out in detail several items of misconduct of which the said Guravs were guilty; and they expressed their opinion that for the proper management of the affairs of the institution it was necessary to terminate the services of the off ending Guravs (exhibit 407).
On April 1, 1911, the Collector sent a reply to the trustees and told them that, as a result of the Government 493 Resolution No. 4712 passed on November 29,1864, it was unnecessary for the trustees to obtain the Collector 's sanction because it was competent to the trustees to settle their own affairs without any such sanction.
The trustees then met in a committee on September 18, 1911, and decided to dismiss from service the said eleven Guravs.
In its resolution the committee stated that the Guravs were violent and arrogant and it was likely that they may commit riot at the time when the committee would seek to take charge from them.
The committee also apprehended that the rest of the Guravs would make a common cause with those who had been dismissed from service and would refuse to serve the Sansthan.
Even so the committee decided to appoint six Brahmins temporarily to perform the service, because the committee was prepared to allow the rest of the Guravs to render service to the Sansthan if they were ready to act according to the orders of the committee and were willing to enter into a formal agreement in that behalf.
In accordance with this resolution the committee served notice on the eleven Guravs on October 13, 1911, terminating their services and calling upon them to hand over to the committee all articles in their charge and forbidding them from entering the temple in their capacity as servants.
Notice was likewise served on the rest of the Guravs calling upon them to agree to serve the Sansthan on conditions specified in the notice.
These terms were not acceptable to the Guravs and so, on behalf of two Guravs Eknath and his brother Ramachandra, notice was served on the trustees on October 26, 1911, complaining against the trustees ' conduct in forcibly removing the Guravs from the temple and thereby wrongfully denying their rights.
The notice warned the trustees that unless they retraced their steps and gave possession to the Guravs as claimed in the notice legal steps would be taken against them.
This notice was followed by the Guravs ' Suit No. 485 of 1911.
In the suit the plaintiffs claimed declaration about their rights of ownership and asked for consequential reliefs.
This claim was denied by the 494 trustees who claimed the right to dismiss the Guravs.
It was alleged on their behalf that some of the plaintiffs had been dismissed and others had resigned their employments and so all of them had lost their rights.
This suit was seriously contested but in the end the Guravs lost and their suit was dismissed on January 31, 1918.
The Guravs then preferred appeals in the High Court but these appeals were also dismissed on August 3, 1921.
We have already pointed out that, while dismissing the said appeals, the High Court made certain observations about the Guravs ' hereditary rights of worship and suggested that these rights could be adjudicated upon in a suit filed under section 92 of the Code.
Thus at the time when the Guravs ' appeals were dismissed the position was that the claim of ownership set up by them had been rejected; but the question as to whether they were entitled to the lesser rights of hereditary worshippers was left open.
The Guravs then obtained forcible possession of the temple and that led to the trustees ' suit under section 9 of the Specific Relief Act, No. 1075 of 1922, on September 12, 1922.
In this suit the trustees specifically alleged that the relationship of the defendants as servants of the Sansthan had ceased as from September, 1911, and they averred that the defendants had therefore no right to obtain possession of the temple.
The defendants no doubt disputed this claim and pleaded that they were the hereditary vatandar pujari servants but their claim was negatived and a decree for possession was passed on November 4, 1922.
In execution of this decree the defendants were dispossessed.
On these facts the High Court has held in favour of the appellants, and rightly we think, that it was difficult to accept the respondents ' contention that the cause of action for the present suits which were expressly based upon the status of the Guravs as hereditary servants arose in 1911.
But, the High Court felt no doubt that the cause of action to file the present suits had accrued either on September 12, 1922, when the trustees filed their suit under section 9 of the Specific Relief Act or in any event on November 4, 495 1922, when the said suit was decreed and the Guravs were consequently dispossessed.
In our opinion this conclusion is also right.
One of the Guravs who was examined in the present litigation has stated that, " if in any year when it is the turn of any takshim to serve, if a person outside the Gurav family is appointed by the trustees, all the takshims have a right to , object ".
There is also no dispute that since the dismissal of eleven Guravs in 1911 till the institution of, the present suits none from the Gurav family has served the temple except for 3 1/2 months in 1922 when the Guravs had wrongfully obtained possession of the temple.
In 1922 the Guravs knew that their claim of ownership had been rejected and that the only right which they could set up was as hereditary worshippers of the temple and not its owners.
This right was specifically denied by the trustees in their plaint while it was specifically set up in defence by the Guravs in their written statement; and the decree that followed upheld the trustees ' case and rejected the defendant 's claim.
On these facts the conclusion is irresistible that the right to sue accrued to the Guravs at the latest on November 4, 1922, when a decree was passed under section 9 of the Specific Relief Act.
If not the plaint in the suit, at least the decree that followed clearly and effectively threatened the Guravs ' rights as hereditary worshippers and so the cause of action to sue on the strength of the said rights clearly and unambiguously arose at that time.
If that be the true position it follows that the present suits which have been filed long after the expiration of six years from 1922 are barred by time under article 120.
It is then contended by Mr. Rege that the suits cannot be held to be barred under article 120 because section 23 of the Limitation Act applies; and since, in the words of the said section, the conduct of the trustees amounted to a continuing wrong, a fresh period of limitation began to run at every moment of time during which the said wrong continued.
Does the conduct of the trustees amount to a continuing wrong under section 23 ? That is the question which this contention raises for our decision.
In other words, did the 496 cause of action arise de die in them as claimed by the appellants ? In dealing with this argument it is necessary to bear in mind that section 23 refers not to a continuing right but to a continuing wrong.
It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the 'doer of the act responsible and liable for the continuance of the said injury.
If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue.
If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong.
In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.
It is only in regard to acts which can be properly characterised as continuing wrongs that section 23 can be invoked.
Thus considered it is difficult to hold that the trustees ' act in denying altogether the alleged rights of the Guravs as hereditary , worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong.
The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants ' rights though the damage caused by the said decree subsequently continued.
Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment ? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem.
We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of section 23 in such a case.
That is 497 the view which the High Court has taken and we see no reason to differ from it.
We would now like to refer to some of the decisions which were cited before us on this point.
The first case which is usually considered in dealing with the application of section 23 is the decision of the Privy Council in Maharani Rajroop Koer vs Syed Abdul Hossein (1) In order to appreciate this decision it is necessary to refer, though briefly, to the material facts.
The plaintiff had succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water flowing through it except that which flowed through the branch channel; he had, however, failed to prove his right to the water in the tal except to the overflow after the defendants as owners of mouzah Morahad used the water for the purpose of irrigating their own land.
It was found that all the obstructions by the defendants were unauthorised and in fact the plaintiff had succeeded in the courts below in respect of all the obstructions except two which were numbered No. 3 and No. 10.
No. 3 was a khund or channel cut in the side of the pyne at a point below the bridge whereas No. 10 was a dhonga also below the bridge and it consisted of hollow palm trees so placed as to draw off water in the pyne for the purpose of irrigating the defendants ' lands.
It was in regard to these two obstructions that the question about the continuing wrong fell to be considered; and the Privy Council held that the said obstructions which interfered with the flow of water to the plaintiff 's mehal were in the nature of continuing nuisance as to which the cause of action was renewed de die in them so long as the obstructions causing such interference were allowed to continue.
That is why the Privy Council allowed the plaintiff 's claim in respect of these two obstructions and reversed the decree passed by the High Court in that behalf.
In fact the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing plaintiff 's water and thereby committing fresh wrong every time.
Thus this is clearly not a case of exclusion or ouster.
(1) (1880) L.R. 7 I.A. 240.
63 498 Similarly, in Hukum Chand vs Maharaj Bahadur Singh (1) the Privy Council was dealing with a case where the defendants ' act clearly amounted to a continuing wrong and helped the plaintiff in getting the benefit of section 23.
The relevant dispute in that case arose because alterations had been made by the Swetambaris in the character of the charans in certain shrines and the Digambaris complained that the said alterations amounted to an interference with their rights.
It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark.
"The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models or photographs which shows toe nails and must be taken to be a representation of part of the foot.
This the Digambaris refused to worship as being a representation of a detached part of the human body ".
The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong of which the Digambaris were entitled to complain.
The question which the Privy Council had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not; and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer (2 ) and held that the action in question was a continuing wrong.
There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs.
It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem.
In our opinion, neither of these two decisions can be of any assistance to the appellants.
On the other hand the decision of the Patna High Court in Choudhury Bibhuti Narayan Singh vs Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur(3) (1) (1933) L.R. 60 I.A. 313.
(2) (1880) L.R. 7 I.A. 240.
(3) Pat. 208.
499 as well as that of the Full Bench of the Punjab High Court in Khair Mohammad Khan vs Mst.
Jannat support the respondents ' contention that where the s, impugned act amounts to ouster there is no scope for the application of section 23 of the Limitation Act.
We are, therefore, satisfied that there is no substance in the appellants ' contention that section 23 helps to save limitation for their suits.
The result no doubt is unfortunate.
The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers; but their claim must be rejected on the ground that they have filed their suits beyond time.
In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them, but it did not succeed.
In the result the appeals fail and are dismissed.
We would, however, direct that the parties should bear their own costs throughout.
Appeals dismissed.
|
The appellants who were the hereditary worshippers, called Guravs, of the Shree Dnyaneshwar Sansthan of Alandi, claimed to be its owners.
The respondents as trustees of the said Sansthan dismissed eleven of the Guravs in 1911, served a notice on the rest calling upon them to agree to act according to the orders of the Temple committee and appointed six Brahmins to carry on the services of the Sansthan.
The Guravs did not agree and sued the respondents for a declaration of their rights of ownership and consequential reliefs.
That litigation ended in the High Court in 1921 with the result that their claim of ownership stood rejected but their rights as hereditary worshippers were left open.
Thereafter the Guravs took forcible possession of the temple on July 25,1922.
The trustees brought a suit under section 9 of the Specific Relief Act on September 12, 1922, and obtained a decree on November 4, 1932.
In execution of that decree the Guravs were dispossessed.
The suits, out of which the present appeals arise, were filed by the appellants against the trustees for declaration of their rights as hereditary servants of the Sansthan, a permanent injunction restraining the trustees from obstructing them in the exercise of the said rights and accounts.
The respondents claimed that the appellants were servants of the Temple committee and had no hereditary rights as claimed by them; even if they had, their claim to such rights was barred by limitation.
The trial Court decreed the suits.
In appeal the High Court, while agreeing with the trial court on the merits, disagreed on the question of limitation, held the suits to be barred by limitation under article 120 Of the Limitation Act, the cause of action arising either on the filing of the section 9 suit by the respondents or, in any event, on the date when the said suit was decreed, section 23 of the Act having no application, and allowed the appeals.
It was contended on behalf of the appellants in this Court that the suits were governed by article I24 Of the Limitation Act, and even if article 120 applied, section 23 saved limitation.
Held, that the High Court was right in holding that article 120 and not article 124, of the Limitation Act applied and that section 23 had no application to the suits in question.
477 Article 124 Of the Limitation Act applies only where the cause of action for the suit is wrongful dispossession of the plaintiff and adverse possession by the defendant in respect of the hereditary office in question.
In such suits, the contest usually is between rival claimants to the hereditary office and not between such claimants and trustees.
It is impossible to ignore the provision Of Col. 3 to that article in deciding its applicability.
Kunj Bihari Prasadji vs Keshavlal Hiralal, Bom.
567 and jalim Singh Srimal vs Choonee Lall Johurry, , held inapplicable.
Thathachariar vs Singarachariar, A.I.R. 1928 Mad. 377, ap proved.
Annasami vs Advarachari, I.L.R. , distin guished.
Jhalandar Thakur vs jharula Das, Cal. 2444, referred to.
Section 23 Of the Limitation Act refers not to a continuing right but to a continuing wrong.
A continuing wrong is essentially one that creates a source of continuing injury as opposed to one that was complete and makes the doer liable for such continuance.
A completed inJury would not be a continuing wrong even though it might give rise to continuing damage.
Thus tested, the injury to the appellants resulting from the decree obtained by the trustees in the section 9 suit, which amounted to a ouster, was complete at the date of the ouster and section 23 Of the Limitation Act could not apply so as to save limitation.
Choudhury Bibhuti Narayan Singh vs Maharaja Sir Guru Mahadeu Asram Prasad Saki Bahadur, Pat. 208 and Khair Mohammad Khan vs Mst.
jannat, Lah. 22, referred to.
Maharani Rajroop Koer vs Syaed Abdul Hossein, [1880] L.R. 7 I.A. 240 and Hukum Chand vs Maharaj Bahadur Singh, [1933] L.R. 60 I.A. 313, distinguished and held inapplicable.
|
ION: Civil Appeal No. 824 of 1986 From the Judgement and order dated 10.
1.1986 of the Bombay High Court in W.P. No. 5327 of 1985.
S.N. Kacker.
Rani Chhabra and Swatanter Kumar for the Appellant.
V.S. Desai, C.V. Subba Rao, A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by R.B. MISRA, J.
The present appeal by special leave is directed against the judgment and order dated January 10, 1986 of the High Court of Judicature at Bombay dismissing the petition under Article 226 of the Constitution filed by the appellant.
The appellant is carrying on the business of bulk supply of milk, 66 products and milk cream etc.
The appellant is well known in the said field and has a plant of pasteurization in Pune and has been carrying on the said business for more than twenty years.
The appellant installed a plant for pasteurization at a heavy cost to the tune of rupees three lakhs.
The appellant has been supplying large quantities of milk and milk products pasteurized or otherwise to various companies, Government Departments including respondents Nos. 2 and 3.
The appellant as a registered contractor has been supplying fresh buffaloes and cows milk to respondent Nos. 2 and 3 as per the requirements for the last twenty years.
The appellant is on their approved list for the same period and his supplies and work were always appreciated and accepted by the respondents for all these periods.
The appellant is also capable of supplying any quantity of pasteurized milk and, indeed, he had been supplying to various organisations the milk and milk products and also pasteurized milk.
Later on Respondent No. 2, the officer incharge of the Military Farms, Pimpri, directed that the local purchase of milk be stopped and regular supply under a contract by inviting tenders be effected.
Accordingly, the appellant 's contract for supply of fresh buffalo and cow milk ended in 1984 The Military Farm had its own plant for pasteurization and for all these years respondents Nos. 2 and 3 had been making purchases of only fresh buffalo milk and used to pasteurize the milk for their own purposes in their own plant.
The plant of respondents 2 and 3 is very much in operation till to day and also on the date of inviting tenders in question .
Respondent No. 2 issued on or about July 16, 1985 tender notices for the supply of fresh buffalo or cow milk.
The said tender notice was published in the Indian Express on July 29, 1985.
The tender notice was also sent to the appellant by Respondent No. 2 by registered post acknowledgement due which was received by the appellant in July 1985.
By the said tender notice, the respondent had invited tenders for supply of fresh buffalo or cow milk at Military Farms of Pimpri, Pune.
The appellant being eligible and already on the approved list of the respondents submitted a tender for supply of fresh buffalo milk to respondents 2 and 3 as per the requirements stated in the tender notice.
The appellant had offered the milk at the rate of Rs.4.21 per litre having 6 per cent fat and specific gravity of 1.030 as required in the tender notice, thus, giving a rate of Rs.421 for each 100 litres.
67 Respondent No. 4, General Manager, Government Milk Scheme, A Pune, also submitted a tender but the tender of respondent No. 4 related not to the item asked for in the tender notice viz. fresh buffalo or cow milk but related to the supply of pasteurized milk.
While the cow milk asked for in the tender provided for 4 per cent fat with a specific gravity of 1.029, respondent No. 4 agreed to supply pasteurized milk for Rs.4 per litre, that is Rs.400 per 100 litres.
It appears that after the submission of the tender, the appellant received a notice dated October 30, 1985 from respondent Nos. 2 and 3 requesting the appellant to extend the validity period of tender up to November 30, 1985 on the same terms and conditions as mentioned in the tender submitted by the appellant.
The appellant acceded to the request and extended the validity period till November 30, 1985 in view of the long standing business and his good relations with respondents 2 and 3.
During this period respondents 2 and 3 kept on receiving sup plies of fresh buffalo milk to the satisfaction till the appellant was asked to stop the supply from November 20, 1985 vide letter dated October 30, 1985, although the appellant had been requested earlier to continue the supply at least up to December 1, 1985 vide letter dated October 30, 1985.
The appellant thus had to suffer a huge loss on account of the abrupt stoppage of the supply.
Tenders were opened on August 23, 1985.
The appellant was the lowest bidder.
The rates given by the appellant in the tender for supply of fresh buffalo milk was lower and tender of respondent No. 4 could be of no consequence as it was for a different item not contemplated by the tender notice.
The tender given by Respondent No. 4 was however accepted on November 19 20, 1985 and the tender of the appellant was rejected although it was lower than that of respondent No. 4.
The concerned officer had made a report to the higher authorities about the two tenders, one from the appellant and the other from respondent No. 4, vide letter dated August 23, 1985.
It will be appreciated at this stage to refer to the advice given by the officer concerned which is as follow: "CONCLUSION OF CONTRACT FOR SUPPLY OF MILK AT PR MF KIRKEE / PIMPRI.
Reference discussion DDME and ADMP of date.
The information required is given below: (a) The cost of blended milk and standard milk taking the buff milk rate of Rs.421 for 100 litres works out to: i) Blended Milk (Taking Rs.3.59per lit of BMP Rs.28 per kg.) 10% price preference Rs.0.36 ii) Standard Milk (Taking cost of Rs.3.48 per litre separated milk Rs.2.30 per litre) 10% price preference Rs.0.35 Rs.3.83 (b) If contract for purchase of cow milk is concluded, farm will lose 41 paise per litre on blended milk and 52 paise on standard milk per litre.
Taking a daily purchase of 3000 litres of cows milk for which tender has been called for it will amount to a loss of Rs.4.48 lakhs in terms of blended milk and Rs.5.69 lakhs in terms of standard milk during the period of contract of one year.
In so far as pasteurization is concerned, milk has to be repasteurized as delivery timings of units in the station are different.
Moreover, even if Milk Scheme delivers the milk just before one hour of sending out the delivery rounds, it will only save on electricity charges which will be negligible.
The 7,500 litres of cows milk being produced daily at Pimpri has to be pasteurized for which the daily section will continue to work as it is at present.
The collection charges under farm arrangement works out to Rs.0.10 per litres.
The details are enclosed at Appendix 'A '.
Though collection charges will be less by 10 paise but it will cause lot of inconvenience to the dairy staff because milk is already being collected three times a day from Pimpri and lot of difficulties are being experienced in route.
If Milk Scheme delivers the Milk at MP Dairy that arrangement will be the best.
" From the above report it is obvious that the respondents will be put to substantial loss to the tune of about Rupees ten lakhs by accept 69 ing the tender of respondent No. 4 but all the same the tender of respondent No. 4 was accepted in preference to the tender made by the appellant.
Respondents 2 and 3 would have gained by accepting the tender of the appellant which is strictly in terms of the tender notice because the respondent could further increase the quantity of milk by diluting the same to bring to fat and gravity standard.
From the terms and conditions inviting the tender, the Government suppliers were given exemption from depositing the earnest money and tender form fee but no other concession to the Government supplies was indicated in the tender notice yet 10 per cent price preference was given to respondent No. 4 without any basis and in violation of the terms of notice inviting the tender.
All the same the price of the appellant quoted in the tender was lower than that of respondent No. 4 and there was absolutely no justification whatsoever for not accepting the tender of the appellant.
To start with the appellant had made an offer of Rupees four hundred fifty per hundred litres but para 16 of the tender notice provided for negotiations by respondents 2 and 3 with the contractors on rates or otherwise.
As a result of subsequent negotiations between the appellant and the respondents, the offer of Rs.450 was reduced to Rs.421 per hundred litres.
If the tender notice had indicated for the supply of pasteurized milk there was no difficulty for the appellant to have done so.
But in the absence of any such indication in the tender notice and in the absence of any subsequent negotiations between the appellant and the respondents under para 16 of the tender notice, the appellant offered to supply the buffaloes or cows fresh milk.
Feeling aggrieved by the rejection of his tender, the appellant challenged the order of the authority concerned by a Writ Petition in the High Court.
The Writ Petition was, however, dismissed in limine by a cryptic order as under: "Heard both sides.
The Writ Petition involves Questions relating to contractual obligations.
Even otherwise, we do not find that there is anything wrong or unfair in accepting the milk from the Government Milk Scheme.
The policy decision cannot be termed as unfair or arbitrary.
Hence W.P. rejected.
" The appellant has now come to challenge the judgment and order of the High Court dated 10.1.1986 by special leave.
Shri S.N. Kacker, learned counsel appearing for the appellant has reiterated the same contentions as had been raised before the High Court.
70 The main contention is that the authorities concerned had acted contrary to the principles of law, unfairly, arbitrarily and discriminately.
The appellant being the lowest bidder his tender ought to have been accepted by the Panel officers and there was absolutely no reason or justification for the respondents to reject the same.
It was further contended that the tender submitted by respondent No. 4 was not in consonance with the requirements of the tender form and, therefore, that should have been ignored.
The tender notice demanded supply of fresh buffaloes or cows milk hut respondent No. 4 had submitted for pasteurized milk.
In any case, if the respondents wished to alter the invitation of the tender it was obligatory and mandatory for the respondents to call the appellant for negotiations before rejecting his tender and accepting the tender of respondent No. 4.
There was a clear provision for negotiation in the tender notice and it was open to respondent No. 4 to have negotiated with appellant and asked him to tender for the supplying pasteurized milk.
In any case, on the own admission of the respondents, that the pasteurized milk supplied by respondent No. 4 would have to be re pasteurized and secondly the cost of 5() paise had to be added even to the price of respondent No. 4 as the same was being added to the price given by the appellant.
The action of the respondent is completely arbitrary and discriminatory inasmuch as respondent No. 4 merely being the Government organisation had been given preference over the appellant while respondent No. 4 had no better quality or standard for effecting the supplies asked for under the contract and even tor the pasteurized milk.
Even in the matter of contract, the Government has to act fairly and justly and the failure of the Government to do so given a right to the citizen to approach the court for justice.
The respondents have made a wrongful exercise of their power in rejecting the tender of the appellant.
It was contended for the appellant that he being the lowest bid der, the authorities concerned acted arbitrarily in accepting the bid of respondent No. 4 which was higher than that of the appellant.
We find considerable force in this contention.
In Ramana Dayaram Shetty vs The International Airport Authority of India and Ors., ; , this Court laid down the law in this respect in the following words: "Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet 71 will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant.
The power or discretion of the Government in the matter of grant of largess must be confined and structured by rational, relevant and non discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down unless it can be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
" On August 23, 1985, the officer of the Military Department submitted a report to the Higher Authority stating therein that the appellant was not only the lowest bidder but also the purchase of milk from the appellant could be profitable while the purchase of milk from respondent No. 4 would result in serious losses to the extent of Rupees ten lakhs or so.
The report further indicates that respondents would have to re pasteurize the milk for its supply to its various units without any profit because the minimum fat standard of 4 per cent with the gravity of 1.029 has to be maintained.
As such the entire labour would be deployed without any fruitful result or benefit to the respondent while on the other hand, if the respondent wished, by pasteurizing the fresh milk supply of the appellant they could otherwise earn profits extracting fat while maintaining the fat and the gravity standard.
In spite of the report of the Military Officer, the higher bid of respondent No. 4 in preference to the lower bid of the appellant was accepted.
It clearly indicates that the action of the respondent authority was arbitrary and fanciful.
The terms contained in the tender notice have been detailed in the notice itself and it is not necessary to refer to all the terms but we would refer to paras 2, 16 and 19.
Para 2 of the tender notice provides that tenders will be invited for the supply of pure fresh buffaloes milk testing not less than 6.0% butter fat and 1.030 specific gravity or pure fresh cows milk testing not less than 4% butter fat and 1.029 specific gravity daily at Military farms/depots as mentioned in Appendix `A '.
Para 16 provides that as per orders of Army Headquarters, Military Farms contracts are to be concluded through a panel of officers which may hold negotiations with the contractor where necessary and recommend the reasonable rates to the higher authorities.
72 Para 19 provides that the Central Government/State Governments are purely governments concerns need not pay tender form fees and earnest money.
They are, however, requested to inimate the period of supply for which they desire to tender their rates to enable the undersigned to send them the required tender form.
It is contended for the appellant that the tender submitted by respondent No. 4 did not satisfy the requirement of para 2 of the tender notice.
The tenders had been invited for the supply of pure fresh buffaloes milk or fresh cows milk but the respondent had submitted tender for supplying pasteurized milk, and therefore, the tender submitted by respondent No. 4 being not in conformity with the tender notice should not have been accepted by the authorities.
In any case, if the tender of respondent No. 4 regarding supply of pasteurized milk was accepted and the original terms of the tender notice were changed, the appellant should have been given an opportunity to submit his tender in conformity with the changed terms but this was not done which has caused serious prejudice to the appellant.
If the tender forms submitted by any party is not in conformity with the conditions of the tender notice the same should not have been accepted but the authorities concerned arbitrarily and in a fanciful manner accepted the tender of respondent No. 4.
The State of its instrumentality has to act in accordance with the conditions laid down in the tender notice.
In any case if the authorities chose to accept the tender of respondent No. 4 for supplying pasteurized milk, the appellant should also have been given an opportunity to change its tender.
The authorities have, however, given preference to the tender of respondent No. 4 for offering to supply pasteurized milk contrary to the terms contained in para 2 of the tender notice.
We find considerable force in this contention of the appellant.
It was next contended that the conditions contained in the tender notice did not contemplate of giving 10 per cent price preference to Government undertakings yet 10 per cent price preference was given to the Government illegally and the policy of the Government to give 10 per cent price preference to Government undertaking was discriminatory and violative of Articles 14 and 16 of the constitution.
The State policy places respondent No. 4 above the appellant without any basis or reasonable classification.
In the absence of any such stipulation in the contract such price preference was unjustified.
If the terms and conditions of the tender have been incorporated 73 in the tender notice itself and that did not indicate any preference to the Government undertakings of giving 10 per cent price preference to Government undertaking, the authority concerned acted arbitrarily in allowing 10% price preference to respondent No. 4.
The only facility provided to the Government undertakings was provided in paragraph 19 which contemplates that the Central or State Government Departments are purely Government concerns need not pay tender forms fees and earnest money.
This was the only concession available to the Central/State Government or to the purely Government concerns, and no other concession or benefit was contemplated under the terms of the tender notice.
If the appellant had known that 10 per cent price preferene to Government undertaking was to be given to respondent No. 4 the appellant would have taken every precaution while submitting the tender.
In support of his contentions, Shri S.N. Kacker, appearing for the appellant strongly relied upon Ramana Dayaram Shetty vs The International Airport Authority of India and Ors.
(supra).
In that case, the first respondent by a public notice invited tenders for putting up and running a Second Class Restaurant and Two Snack Bars at the International Airport at Bombay.
The notice, inter alia, stated in paragraph 1 that sealed tenders in the prescribed form were invited from Registered Second Class Hoteliers having at least five years experience for putting up and running a Second Class Restaurant and two Snack Bars at the Bombay Airport for a period of three years.
Paragraph 8 stated that the acceptance of the tender would rest with the Airport Director who does not bind himself to accept any tender and reserve to himself the right to accept or reject any tender received without assigning any reason therefor.
Out of the six tenders received only the tender of the 4th Respondent was complete and offered the highest amount as licence fee.
All the other tenders were rejected because they were incomplete.
As the 4th respondent did not satisfy the description of a Registered Second Class Hotelier having at least five years experience prescirbed in paragraph (1) of the tender notice, the first respondent called upon the 4th respondent to produce documentary evidence whether they were registered second class hoteliers having at least five years experience.
The Fourth Respondent stated once again that they had considerable experience of catering for various reputed commercial houses, clubs, messes and banks and that they held on Eating House Catering Establishment (Centeen) Licence.
On being satisfied by the information given by the 4th respondent, the first respondent accepted the tender on the terms and conditions set out in its letter.
74 The appellant challenged the decision of the first respondent in accepting the tender of the 4th respondent.
This Court held that the action of the first Respondent in accepting the tender of the 4th respondent who did not satisfy the standard or norms was clearly discriminatory since it exlcuded other persons similarly situated from tendering for the contract and it was arbitrary and without reason.
The acceptance of tender was invalid as being violative of the equality clause of the Constitution as also the administrative law for its arbitrary actions.
This Court also did not justify the action of the first respondent on the ground that it could have achieved the same result by rejecting all the tenders and entering into direct negotiations with the 4th respondent.
This Court observed: "It is true that there was no statutory or administrative rule requiring the 1st respondent to give a contract only by inviting tenders and hence the 1st respondent was entitled to reject all the tenders and, subject to the constitutional norm laid down in Article 14, negotiate directly for entering into a contract.
Paragraph (8) of the notice also made it clear that the 1st respondent was not bound to accept any tender and could reject all the tenders received by it.
But here the 1st respondent did not reject the tenders outright and enter into direct negotiations with the 4th respondents for awarding the contract.
The process of awarding a contract by inviting tenders was not terminated or abandoned by the 1st respondent by rejecting all the tenders but in furtherance of the process, the tender of the 4th respondents was accepted by the 1st respondent.
The contract was not given to the 4th respondents as a result of direct negotiations.
Tenders were invited and out of the tenders received, the one submitted by the 4th respondents was accepted and the contract was given to them." This Court quoted with approval the following observations of Mathew J., in V. Punnan Thomas vs State of Kerala, AIR 1969 Kerala 81: "The Government is not and should not be as free as an individual in selecting the recipients for its largess.
Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society.
A democratic Government cannot lay 75 down arbitrary and capricious standards for the choice of persons with whom alone it will deal." Shri Anil Dev Singh, appearing for the respondents, has contended that respondent No. 4 being the State Government agency was rightly awarded the contract as per the policy of the Government of India as laid down in Letter No. 12(1)/1/85/D/(QS) dated August 13, 1985.
The policy adopted by said letter dated August 13, 1985 came in after the 16th July, 1985 when respondent No. 2 issued tender notice for the supply of fresh buffalo or cow milk.
As such the notification dated August 13, 1985 is of no avail to the respondent in so far as the acceptance of the tender of respondent No. 4 is concerned.
Acceptance or rejection of tender made by the appellant or the respondent No. 4 will depend upon the compliance of the terms of tender notice.
It is true that the Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily.
In the instant case, tenders were invited and the appellant and respondent No. 4 submitted their tenders.
The tenders were to be adjudged on their own intrinsic merits in accordnace with the terms and conditions of the tender notice.
The learned counsel, however, placed reliance on C.K. Achuthan vs State of Kerala, [1959] Suppl.
1 SCR 787 where Hidayathullah, J., as he then was, held that a contract which is held from Government stands on no different footing from the contract held by a private party and when one person is chosen rather than another, the aggrieved party cannot claim protection of Article 14.
The wide observation made by Hidayatullah, J., was explained in Ramana Dayaram Shetty (Supra).
Bhagwati J. as he then was, speaking for the Court observed: "Though the language in which this observation is couched is rather wide, we do not think that in making this observation, the Court intended to lay down any absolute proposition permitting the State to act arbitrarily in the matter of entering into contract with third parties.
We have no doubt that the Court could not have intended to lay down such a proposition because Hidayatullah J. who delivered the judgment of the Court in this case was also a party to the judgment in Rashbihari Panda v State of Orissa (Supra) which was also a decision of the Constitution Bench, where it was held in so many terms that the State cannot act arbitrarily in selecting persons with whom to enter into 76 contracts.
Obviously what the Court meant to say was that merely because one person is chosen in preference to another, it does not follow that there is a violation of Article 14, because the Government must necessarily be entitled to make a choice.
But that does not mean that the choice be arbitrary or fanciful.
The choice must be dictated by public interest and must not be unreasoned or unprincipled.
" Next reliance was placed on Viklad Coal Merchants, Patiala, etc. etc.
vs Union of India & others, AIR 1984 SC 95.
In that case this Court had to construe section 27A and 28 of the Railways Act and the Court observed: "Section 28 forbids discrimination by giving undue or unreasonable preference or advantage in respect of any particular traffic to any particular person or any railway administration but this general prohibition against discrmination is subject to the overriding power conferred on Central Government under section 27A.
If while giving effect to the orders of the Central Government issued under Section 27A, priority is accorded in the matter of transport of goods consigned to Central or State Government or class of goods specified in the general or special order issued in this behalf, the action of the railway administration in complying with such special or general order could not be said as tentamounting to giving undue or unreasonable preference or advantage to or in favour of any particular person or railway administration.
What section 28 forbids is discrimination in the matter of transport of goods against a class but this is subject to the permissible classification that would be introduced by a special or general order issued by the Central Government in exercise of the power conferred by Section 27A. It may be recalled that the Preferential Traffic Schedule according to Priority `C ' to transport of coal by those mentioned therein has been issued in exercise of the power conferred by Section 27A.
Therefore, the submission that petitioners in the matter of transport of coal are similarly situated with the Central or State Government or transporters given priority by general or special order issued under Section 27A cannot be entertained.
" 77 This case is not of much help in the present case.
The facts were materially different in that case.
In that case, the railway authority had to comply with the directions given by the Central Government which was in the public interest.
Lastly, the counsel relied upon Madhya Pradesh Ration Vikareta Sangh Society & Ors.
etc etc.
vs State of Madhya Pradesh & Anr. ; In that case the question for consideration was whether the Fair Price Shops in the State under the Government Scheme should be directly run by the Government through the instrumentalities of the Consumers Co operative Societies as its agents or by retail dealers to be appointed by the Collector.
This Court took the view that essentially this was a matter of policy to which the Court is not concerned.
This case also is not of much help in the present case.
In the instant case, the instrumentalities of the State invited tenders for the supply of fresh buffaloes and cows milk and, therefore, this case has to be decided on the basis of bid by the tenderers.
There was no question of any policy in this case.
It is open to the State to adpot a policy different from the one in question.
But if the authority or the State Government chooses to invite tenders then it must abide by the result of the tender and cannot arbitrarily and capriciously accept the bid of respondent No. 4 although it was much higher and to the detriment of the State.
The High Court, in our opinion, was not justified in dismissing the writ petition in limine by saying that the question relates to the contractual obligation and the policy decision cannot be termed as unfair or arbitrary.
There was no question of any policy decision in the instant case.
The contract of supply of milk was to be given to the lowest bidder under the terms of the tender notice and the appellant being the lowest bidder he should have been granted the contract to supply, especially, when he has been doing so for the last so many years.
In the result, the appeal must succeed.
It is accordingly allowed and the judgment and order of the High Court dated January 10, 1986 is set aside and the Writ Petition is allowed and the order of the authorities rejecting the tender of the appellant and accepting the tender of respondent No. 4 is quashed.
The respondents authorities are directed to accept the tender of the appellant.
There is, however, no order as to costs.
P.S.S. Appeal allowed.
|
The appellant is carrying on the business of bulk supply of milk and milk products for the last twenty years.
He has a plant for pasteurization at Pune.
On July 16, 1985 the officer in charge of the Military Farms respondent No. 2, issued tender notice for the supply of pure fresh buffalo and cow milk.
The appellant being eligible and already on the approved list of the respondent authority, submitted a tender offering fresh buffalo milk of the specified fat content and gravity giving a rate of R.S. 421 per 100 litres.
The General Manager, Government Milk Scheme, Pune respondent No. 4, also submitted a tender for the supply of pasteurized milk, an item not contemplated by the tender notice, at Rs.400 per 100 litres.
Tenders were opened on August 23, 1985 and the appellant was found the lowest bidder.
The Military officer concerned submitted a report to the higher authority stating that the appellant was not only the lowest 'bidder but also that the purchase of milk from him would be profitable, while the purchase of milk from respondent No. 4 would result in serious loss to the extent of rupees ten lakhs or so.
But all the same, the respondent authority accepted the higher bid of respondent No. 4, in preference to the lower bid of the appellant contrary to the terms of the notice inviting tender.
Feeling aggrieved by the rejection of his tender, the appellant challenged the order by filing a writ petition in the High Court which was dismissed in limine.
In this appeal by special leave on behalf of the appellant it was 64 contended that even in the matter of contracts, the Government has to act fairly and justly and the failure of the Government to do so gives a right to the citizen to approach the court for justice, that the authority concerned in rejecting his tender had acted contrary to the principles of law, unfairly, arbitrarily and discriminately, that the tender submitted by respondent No. 4 was not in consonance with the tender notice and it should have been ignored, and that if the authority wished to alter the conditions of the tender notice it was obligatory and mandatory for it to call him for negotiation.
It was further contended that the 10 per cent price preference given to respondent No. 4 contrary to the terms of the tender notice was illegal and discriminatory.
On behalf of the respondents it was contended that respondent No. 4 being the Government agency was rightly awarded the contract as per the policy of the Government of India laid down in notification dated August 13, 1385.
Allowing the appeal, the Court, ^ HELD: 1.
The Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily.
It is open to the State to adopt a policy different from the one in question, but once the authority or the State Government chooses to invite tenders then it must abide by the result of the tender.
[75 C D; 77 D E] 2.
The High Court was not justified in dismissing the writ petition in limine by saying that the question relates to the contractual obligation and the policy decision cannot be termed as unfair or arbitrary.
[77 E] There was no question of any policy decision in the instant case.
The notification dated August 13, 1985 laying down the policy came in after July 16, 1985 when respondent No. 2 issued tender notice.
The instrumentalities of the State having invited tenders for the supply of fresh buffalo and cow milk, these were to be adjudged on their intrinsic merits in accordance with the terms and conditions of the tender notice.
The contract for the supply of milk was to be given to the lowest bidder under the terms of the tender notice and the appellant being the lowest bidder, it should have been granted to him.
The authority acted capriciously in accepting a bid which was much higher and to the detriment of the State.
[75 B D; 77 D F] 3.
Where the tender form submitted by any party is not in con 65 formity with the conditions of the tender notice the same should not be A accepted.
So also, where the original terms of the tender notice are changed the parties should be given an opportunity to submit their tenders in conformity with the changed terms.
[72 C E] 4.
The authority acted arbitrarily in allowing 10 per cent price preference to respondent No. 4.
The terms and conditions of the tender had been incorporated in the tender notice itself and that did not indicate any such price preference to government undertakings.
The only concession available to Central/State Government or to the purely government concerns was under para 13 of the notice, that is, that they need not pay tender form fee and earnest money.
No other concession or benefit was contemplated under the terms of the tender notice.
[73 A C ] Ramana Dayaram Shetty vs The International Airport Authority of India & Ors., ; ; V. Punnan Thomas vs State of Kerala, AIR 1969 Kerala 81; C.K. Achuthan vs State of Kerala [1359] Suppl.
1 SCR 787; Viklad Coal Merchants, Patiala etc.
vs Union of India & Ors.
AIR 1984 SC 95; and Madhya Pradesh Ration Vikreta Sangh Society SCR 750, referred to.
|
Criminal Appeal No. 75 of 1979.
From the Judgment and Order dated 6.2.
1976 of the Bombay High Court in Criminal Appeal No. 636 of 1973.
Raghunath Singh (Amicus Curiae) for the Appellant.
A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellant, Shivaji Patil was ac quitted by the Additional Sessions Judge, Kolhapur of the charge under Section 302, Indian Penal Code for committing murder of one Tulashiram Sutar, but on appeal the High Court by its judgment dated February 6, 1976 set aside the order of acquittal and convicted him under section 302 of the Indian Penal Code and sentenced him to imprisonment for life.
The house of deceased Tulashiram in Village Rashivade adjoins the temple of Shri Ambabai and in front of the temple, there is open place.
The deceased along with his wife Parvatibai, two children and parents was living in the house.
Cousin brothers of the deceased and their mother were living in the adjoining house.
Vyanku Sutar belonging to the brother hood of deceased was also living in the same village.
The deceased had illic it relation with Vyanku 's wife Akkatai.
Parvatibai claimed to have caught them in the sex act in sugarcane fields.
The accused Shivaji and Vyanku were friends.
On January 30,1972 at about 7 or 7.30 P.M. Tulashiram returned to the house after performing his role described as "Sasankathi" in the festival of "Mahi Poornima".
In the house Parvatibai, her mother in law Tanubai, her husband 's sister Malutai, 402 and her husband 's cousin brother 's wife Shalubai, were present.
The male members, namely, deceased 's father Pandu rang Sutar, his brother Soundappa and servant named Shama had gone to another village called Kote.
Tulashiram asked his mother Tanubai to prepare tea and thereafter he went out and sat on the foot steps of the temple at a distance of about 15 to 20 feet from the house.
What followed can best be reproduced in words of Parvat ibai as P.W. 3 at the trial: "After the tea was ready, I started going out of the house to call for my husband, when I went to the front door of my house, I saw the accused Shivaji hitting my husband with a stick on his head and running away.
I saw him running in the direction of the by lane.
I saw my husband failing down from the steps and lying on the ground near the "Deepmal".
I saw him rubbing his feet on the ground in agony and blood was coming from the injury on his head.
I could see this in the light of the tube light.
I went near my husband and started calling him.
He could not speak.
Hence, I raise a hue and cry and my mother in law and sister in law Malubai and Shalibai and Vishnu Patil came there.
I did not see anybody else nearby then as I was busy attending to my husband.
My husband had become unconscious due to the head injuries and froth had come out of his mouth.
Myself, Vishnu Patil and sister in law bodily lifted my husband and took him to the house . .
Somebody went and brought a local doctor named Jayant Patil.
The doctor came there, examined and treated my husband and advised him to be removed to his dispen sary.
My husband was accordingly taken there, but I did not go, as my small children were crying and I was prevented from going there.
My children had frightened.
In the morning next day, I came to know that my husband was removed to C.P.R. Hospital at Kolhapur.
Hence in the morning, myself my mother in law and others went to Kolhapur by Yelavade Kolhapur Bus reaching there at about 8.30 A.M.
When we reached the C.P.R. Hospital my brother in law came there crying saying that my husband had overnight succumbed to his injuries.
Hence myself and my mother in law started crying and shouting.
Hence some villagers brought a taxi, we were 403 asked to sit in the taxi and we were taken to Rashivade even without showing the dead body to us.
We reached Rashivade at about 11 A.M.
After reaching home, we were crying in agony and our house became full with females and I did not notice who others had come there." Vishnu Patil deposed that he was returning from his sugarcane crushing site and while passing by the temple he found deceased Tulashiram lying injured in front of the steps of the temple and his wife was crying nearby.
At a distance of about 5 or 6 feet from there, he saw Nana Patil and asked him what was the matter.
Nana Patil replied that he did not know anything.
Vishnu Patil asked Nana Patil to call the doctor.
Jaywant Patil a private practitioner reached the house of the deceased and on his advice the deceased was removed to the dispensary.
When for two hours, Tulashiram did not regain consciousness, Dr.
Patil at about 11/12 P.M. took him to the hospital at Kolhapur in his own car.
Patil at the trial stated that Tanubai said to him and also gave in writing (exhibit 26) to the effect that she had no complaint against anybody.
The prosecution produced P.W. 3 Parvatibai, P.W. 9 Krishan Wadkar, P.W. 10 Shankar Patil, P.W. 11 Krishna Sadashiv Patil and P.W. 12 Nanu Patil, all eye witnesses.
Except P.W. 3 Parvatibai all other eye witnesses were de clared hostile.
The prosecution case, thus, hinges on the sole testimony of Parvatibai.
Parvatibai has deposed that she saw on the evening of January 30, 1972, Shivaji Patil hitting her husband with a stick.
Admittedly her mother in law, her two sisters in law and Shivaji Patil came present on the spot immediately thereafter.
Parvatibai did not disclose the name of the assailant to them or to anybody else.
Rather Dr. Patil who came to the house little later was told by Tanubai that the family did not suspect anybody.
Vishnu Patil stated at the trial that nobody informed him about the accused or any other person who gave injuries to the deceased.
The Police Patil in his report dated 31.1.1972 stated that at 10.30 A.M. on that day he went to the house of deceased.
The father of the deceased, an uncle and a distant relation were present in the house.
The Police Patil asked them about the incident.
They replied that they had no knowledge about the incident as they were not present in the house at the time of occurrence.
The Police Patil further says that while he was present in the house a taxi came from Kolhapur and the 404 mother and wife of Tulashiram deceased got down from the taxi.
The Police Patil questioned the ladies as to how Tulashiram was injured.
The ladies were not prepared to talk and no information regarding the alleged occurrence was given to him.
He made further enquiries from other people but nobody gave him any information regarding the assail ants.
On the basis of the Police Patil 's report a case was registered at police station Rachanagari wherein it was mentioned that the cause of death of Tulashiram was not known.
Head constable B.S. Patharvat sent a complaint on 1st of February, 1972 wherein he stated that he came to know about the incident on the morning of 31st of January, 1972 and he went to the house of Tulashiram at about 10/11 A.M. and asked the in mates about the occurrence but nobody gave him any information.
He again went to the house of Tulashiram deceased on 1st of February, 1972 and recorded the statement of Parvatibai.
She stated that when she came to the front door she saw Shivaji Patil running with a stick from near about her husband.
She said that the relations between her husband and Vyanku were not good and Shivaji Patil and Nana Patil were friends of Vyanku Sutar.
She further stated that Vyanku Sutar, Shivaji Patil and Nana Patil made company and assaulted her husband.
On the basis of the statement of Parvatibai the head constable sent the complaint for regis tering the case against Vyanku Sutar, Shivaji Patil and Nana Patil under sections 302/34, IPC, though ultimately charge was filed by police only against Shivaji Patil.
The question for consideration is as to why was Parvati bai mum from 30.1.1972 to 1.2.
1972? The High Court felt satisfied by saying that she was in a dazed mood.
We do not agree with the High Court.
Parvatibai 's conduct was highly unnatural.
A wife, who has seen an assailant giving fatal blows with a stick to her husband, would name the assailant to all present and to the police at an earliest opportunity.
There is nothing in the evidence to justify this highly unnatural and improbable conduct of Parvatibai.
Even on 1.2.
1972 the statement of Parvatibai recorded by police head constable is entirely different than what she stated at the trial.
The prosecution has, thus, not been able to prove its case against the appellant beyond reasonable doubt.
We, therefore, give benefit of doubt to the appellant and accept the appeal.
The judgment of the High Court is set aside and the appellant is acquitted of the charge under section 302, IPC.
The appellant is on bail and as such his bail bond is cancelled.
N.P.V. Appeal allowed.
|
The appellant was charged under Section 302 I.P.C. for committing the murder of the deceased.
At the trial, prose cution produced P.W.3, wife of the deceased, and P.Ws.10, 11 and 12, all eye witnesses.
Except for P.W.3, all other eye witnesses were declared hostile.
Thus, the prosecution depended on the sole testimony of P.W.3. P.W.3 deposed that she saw the appellant hitting her husband with a stick.
But admittedly, she did not disclose the name of the appellant to anybody including the Police.
The doctor, who came to the house of the deceased little later, examined and treated the deceased and removed him to the hospital deposed that he was told by the mother of the deceased that the family did not suspect anybody.
Another witness who was passing by the scene of occurrence also testified that nobody informed him about the appellant or any other person, who injured the deceased.
The Additional Sessions Judge acquitted the appellant.
But, on appeal, the High Court, set aside the acquittal order, and convicted and sentenced the appellant to impris onment for life.
Hence, the appeal by the accused.
Allowing the appeal, this Court, HELD: The conduct of the deceased 's wife was highly unnatural.
A wife, who has seen an assailant giving fatal blows with a stick to her husband, would name the assailant to all present and to the police at an earliest opportunity.
There is nothing in the evidence to justify this highly unnatural and improbable conduct of the deceased 's wife.
Even her statement recorded by police head constable, is entirely different than what she stated at the trial.
The prosecution has, thus, not 401 been able to prove its case against the appellant beyond reasonable doubt.
[404F G] Therefore, the appellant is given benefit of doubt, the judgment of the High Court is set aside, and the appellant is acquitted of the charge under section 302, IPC.
[404H]
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Appeal No. 294 of 1955.
Appeal by special leave from the Judgment and Order dated the 7th September, 1955, of the Nagpur High Court, in Civil Revision No. 833 of 1954.
B.B. Tawakley, (K. P. Gupta, with him for the appellant.
R. section Dabir and R. A. Govind, for respondent No. 1. 1955.
December 2.
The Judgment of the Court was delivered by BOSE J.
The appellant was a candidate for the office of President of the Municipal Committee of Damoh.
The respondents (seven of them) were also candidates.
The nominations were made on forms supplied by the Municipal Committee but it turned out that the forms were old ones that had not been brought up to date.
Under the old rules candidates were required to give their caste, but on 23 7 1949 this was changed and instead of caste their occupation had to be entered.
The only person who kept himself abreast of the law was the first respondent.
He struck out the word "caste" in the printed form and wrote in "occupation" instead and then gave his occupation, as the new rule required, and not his 1031 caste.
All the other candidates, including the appellant, filled in their forms as they stood and entered their caste and not their occupation.
The first respondent raised an objection before the Supervising Officer and contended that all the other nominations were s; invalid and claimed that he should be elected as his was the only valid nomination paper.
The objection was overruled and the election proceeded.
The appellant secured the highest number of votes and was declared to be elected.
The first respondent thereupon filed the election petition out of which this appeal arises.
He failed in the trial Court.
The learned Judge held that the defect was not substantial and so held that it was curable.
This was reversed by the High Court on revision.
The learned High Court Judges referred to a decision of this Court in Rattan Anmol Singh vs Atma Ram(1) and held that any failure to comply with any of the provisions set out in the various rules is fatal and that in such cases the nomination paper must be rejected.
We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form.
Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines.
This principle was enunciated by Viscount Maugham in Punjab Co operative Bank Ltd., Amritsar vs Incometax Officer, Lahore(2) and was quoted by the learned High Court judges ' "It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially".
(1) ; (2) [1940] L.R. 07 I.A. 464, 476, 1032 But apart from that, this is to be found in the Act itself.
The learned High Court Judges were of opinion that the directions here about the occupation were mandatory.
That, we think, is wrong.
The present matter is governed by section 18 of the Central Provinces and Berar Municipalities Act (II) of 1922.
Among other things, the section empowers the State Government to "make rules under this Act regulating the mode. . of election of presidents. ." and section 175(1) directs that "all rules for which provision is made in this Act shall be made by the State Government and shall be consistent with this Act", Now one of the provisions of the Act, the one that directly concerns us, is set out in section 23: "Anything done or any proceeding taken under this Act shall not be questioned on account of any defect or irregularity not affecting the merits of the case".
The rules have therefore to be construed in the light of that provision.
Rule 9 (1)(i) states that " each candidate shall. .deliver to the Supervising Officer a nomination paper completed in the form appended and subscribed by the candidate himself as assenting to the nomination and by two duly qualified electors as proposer and seconder".
The amended form requires the candidate to give, among other things, his name, father 's name, age, address and occupation; and rule 9(1)(iii) directs that the Supervising Officer "shall examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds: * * * * 1o33 (C) that there has been any failure to comply with any of the provisions of clause (i). . " It was contended that the word "may" which we have underlined above has the force of "shall" in that context because clause (a) of the rule reads "(a) that the candidate is ineligible for election under section 14 or section 15 of the Act".
It was argued that if the candidate 's ineligibility under those sections is established, then the Supervising Officer has no option but to refuse the nomination and it was said that if that is the force of the word "may" in a case under clause (a) it cannot be given a different meaning when clause (c) is attracted.
We need not stop to consider whether this argument would be valid if section 23 had not been there because the rules cannot travel beyond the Act and must be read subject to its provisions.
Reading rule 9(1) (iii) (c) in the light of section 23, all that we have to see is whether an omission to set out a candidate 's occupation can be said to affect "the merits of the case".
We are clear it does not.
Take the case of a man who has no occupation.
What difference would it make whether be entered the word "nil" there, or struck out the word "occupation" or placed a line against it, or just left it blank? How is the case any different, so far as the merits are concerned, when a man who has a occupation does not disclose it or misnames it, especially as a man 's occupation is not one of the qualifications for the office of President.
We are clear that this part of the form is only directory and is part of the description of the candidate;, it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt.
It was also argued that there was a reason for requiring the occupation to be stated, namely, because section 15(k) of the Act disqualified any person who "holds any office of profit" under the Committee.
But disclosure of a candidate 's occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or 1034 "agriculture" and need not be particularised; also, in any 'event, section 15 sets out other grounds of dis qualification which are not required to be shown in the form.
As regards our earlier decision.
That was a case in which the law required the satisfaction of a particular official at a particular time about the identity of an illiterate candidate.
That, we held, was the substance and said in effect that if the law states that A must be satisfied about a particular matter, A 's satisfaction cannot be replaced by that of B; still less can it be dispensed with altogether.
The law we were dealing with there also required that the satisfaction should be endorsed on the nomination paper.
That we indicated was mere form and said at page 488 "If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality".
A number of English cases were cited before us but it will be idle to examine them because we are concerned with the terms of section 23 of our Act and we can derive no assistance from decisions that deal with other laws made in other countries to deal with situations that do not necessarily arise in India.
The appeal succeeds and is allowed with costs here and in the High Court.
The order of the High Court is set aside and that of the Civil Judge restored.
|
The appellant was a candidate for the office of President of the Municipal Committee, Damoh.
The nomination was made in an old form under the old rules which required a candidate to enter his caste.
Under the new rules this was changed and occupation had to be stated instead, which none except the respondent No. I had done.
Objection to the validity of the appellant 's nomination paper was overruled by the Supervising Officer.
The appellant secured the highest number of votes and was declared elected.
The respondent No. 1, thereupon, filed the election petition.
He failed in the Election Tribunal which held that the defect was not substantial and was curable.
The High Court, however, reversed this decision in revision, holding that failure to comply 'with any of the provisions set out in the rules was fatal and in such cases the nomination paper should be rejected.
1030 Held, that the rule requiring the occupation of the candidate to be stated in the nomination form was directory and not mandatory In character and as the failure to comply with it did not affect the merits of the case as laid down in section 23 of the Act, the election could not be set aside on that ground.
Rattan Anmol Singh vs Atma Ram ([1955] 1 S.C.R. 481), dis tinguished.
Courts should not go by mere technicalities but look to the substance.
Some rules may be vital, while others are merely directory, and a breach of these may be overlooked, provided there is substantial compliance with the rules read as a whole and no prejudice ensues.
When the Act does not make a clear distinction, it is the duty of the court to sort out one class from the other along broad based commonsense lines.
Punjab Co operative Bank Ltd., Amritsar vs Income Tax Office? , Lahore ([1940] L.R. 67 I.A. 464), referred to.
|
Appeals Nos. 1944 1946/ 67.
(From the Judgments and Decrees dated the 20th July, 1964 of the Punjab High Court in L.P.As.
23 to 25 of 1960).
M.L. Sethi and Harder Singh, for the appellants.
S.K. Mehta and section Ranga Raju, for Respondents No.s.
The Judgment of A.N. Ray, C.J. and Jaswant Singh J. was delivered by Jaswant Singh, J.M.H. Beg, J. gave a dissenting opinion.
JASWANT SINGH, J.
These three Appeals Nos.
1944, 1945 and 1946 of 1967 by certificate which are directed against the common judgment and decree dated July 29, 1964 of a Division Bench of the High Court of Punjab and Haryana at Chandigarh involving a question of limitation shall be disposed of by this judgment.
The facts leading to these appeals are: As appears from the pedigree table referred to in the judg ment under appeal, Chuhar Singh, a descendant of Amrika, son of Har Lal, sold land admeasuring 167 kanals and 10 marlas situate in village Dhugga, Tahsil Hoshiarpur, to Bhagwan Singh, the grandfather of defendants Nos. 1 to 6, for Rs.23/8/ vide a registered sale deed dated June 20, 1885.
After the aforesaid alienation, one Hamira, a collat eral of Chuhar Singh, filed a suit for possession by pre emption of 52 kanals, 13 marlas out of the aforesaid area which was decreed in his favour on April 29, 1889 on payment of 671/ .
The mutation in respect of the remainder of the land admeasuring 114 kanals and 17 marlas was attested in favour of Bhagwan Singh on May 4, 1890.
Hamira did not retain the property which he secured by pre emption and sold it back to Bhagwan Singh on September 20, 1890, with the result that Bhagwan Singh again became the owner of the entire land which was originally sold tO him by Chuhar Singh who died in 1896.
On July 19, 1898, Jiwan, Bela, Jawahar and Jawala, descendants of Bharimian, another son of Har Lal, filed a representative suit for declaration to the effect that the aforesaid sale by Chuhar Singh in favour of Bhagwan Singh would not affect their reversionary rights as the aforesaid land was ancestral and the sale thereof was with out 18 1458sc//76 258 consideration and legal necessity.
A Division Bench of the Punjab Chief Court finally disposed of the said suit by judgment dated July 29, 1902 declaring that upon the death of Alla Singh, adopted son of Chuhar Singh, and extinction of his line, the aforesaid sale of 1885 would not affect the reversionary interests of Bela and Jawahar.
This declaration was made subject to the condition that before these plain tiffs or their successors in interest would take possession of their share of the laud sold, they would pay to Bhagwan Singh or his successors in interest a sum bearing the same proportion of Rs.1611/ i.e. Rs.2378 minus 767/ ) as their share in the land sold bore to the Whole area sold.
On the death of Alia Singh, Kishan Singh, his only sou, succeeded him.
On December 18, 1943, Jawahar Singh and Bela Singh brought a suit for possession of land admeasuring 113 kanals and 18 marlas situate in village Dhugga alleging that Kishan Singh having died on August 15, 1945, and the line of Alia Singh having become extinct, they were entitled to posses sion of the land in accordance with the aforesaid decree of the Punjab Chief Court.
This suit was followed by two more suits of identical nature for the remainder of the land by two other sets of collaterals of Bhagwan Singh, one by Waryam Singh and his three brothers who claimed half of the entire holding and the other by Khazan Singh and Jagat Singh, who claimed one fourth share of the holding.
The Trial Court consolidated all these three suits and proceeded to try them together, Eventually it decreed the first two suits in favour of the plaintiffs pursuant to the aforesaid decree of the Chief Court of Punjab holding that Kishan Singh had died on August 15, 1945.
It, however, dismissed the suit brought by Khazan Singh and Jagat Singh on the ground that they being the successors in interest of Hamira, who had brought the aforesaid pre emption suit, were stopped from claiming possession of the land.
On appeal, the Dis trict Judge, Hoshiarpur, dismissed all the three suits as premature holding that the factum of Kishan Singh 's death not been established.
The decision of the District Judge was affirmed in appeal by a Single Judge of the Punjab High Court by his judgment and decree dated August 3, 1951.
The plaintiff 's in the last mentioned suits, viz. Waryam Singh and his three brothers, Jawahar Singh and Bela Singh, and Khazan Singh and Jagat Singh again instituted three sepa rate suits (out of which the present appeals have arisen) on October 28, 1952, December 16, 1952, and May 12, 1953, respectively for the same relief which was sought by them in the previous suits.
In these suits, the plaintiffs averted as follows with regard to the cause of action : "5.
After Alia, adopted son of Chuhar Singh, deceased, his son Kishan Singh became his heir and representative.
Now the where abouts of Kishan Singh aforesaid, have not been traceable for more than seven years.
Since the 15th Aug., 1945, no information or intimation that he is alive has been received by any of his relative or any other concerned person.
Hence.
he is considered as dead and his suit is being filed.
The line of Alia has become extinct.
Under these circumstances, the plaintiffs being collaterals of Chuhar Singh, deceased vide the pedigree table given 259 above, are entitled to get possession of the laud of half share, the sale of which has been cancelled vide the decree granted by the Chief Court, subject to payment of Rs.805/8/ of their proportionate share.
Hence, we have filed this suit.
The parties are governed by the Zamindara custom in the matters of succession.
Prior to it, the plaintiffs had filed a suit for possession of this property (land) on the 18th December, 1945, in the Civil Court at Hoshiarpur, alleging that Kishan Singh, son of Alia who was the last man of the line of Alia, has died on 15th August, 1945 . . 7.
The suit of the plaintiffs, detailed in para No. 6 above was based upon the factum of the death of Kishan Singh.
The plaintiffs had no personal knowledge about this fact, rather it was based on mere hearsay, but this event of the 15th of August, 1945, came out to be false and such a decision was passed in the previous suit between the parties and the parties are bound by the same.
But the where abouts of Kishan Singh, aforesaid, have not been traceable since the 15th August, 1945, according to the above facts mentioned in para No. 5.
After the 15th of August, 1952, (1945 ?) the event of his death is to be determined according to law (under section 108) and facts (under section 114) Evidence Act.
According ly, Kishan Singh is to be considered as dead after the 15th of August 1952(?) and he is not alive.
Two months prior to the 15th of Au gust, 1945, he had been residing sometime at Mauza Dhugga, District Hoshiarpur and sometime at Mauza Sonion, District Jullundur, perma nently.
Thereafter, he went outside towards Ahmedabad for searching some job and earning his livelihood.
The last information about his presence in Ahmedabad was received on the 5th of August, 1945 and since then his where abouts have not been available. ". 10.
The right to sue has accrued against defendants Nos. 1 to 6 within the jurisdiction of his district after the 16th of August, 1952, in the beginning of the months of October, 1952 viz., after a period of seven years since the whereabouts of Kishan Singh have not been traceable and since he is con sidered to be dead according to law and so the Civil Court of this District is competent to try this suit .
At any rate, Kishan Singh died within a period of three years from the date of filing the suit and so this suit is within time.
At any rate, the entire aforesaid period mentioned in para No. 6 from 18 12 45 to 3 8 51 is liable to be deducted according to law and facts.
" These suits which were resisted by the contesting de fendants on a number of grounds, were eventually dismissed by the Trial Court as time barred with the finding that though Kishan Singh had not been heard for 'seven years before the institution of the suits, the actual date 260 of this death had not been proved.
The trial Court, however, held that the decree of the Punjab Chief Court enured for the benefit of the entire body of reversioners and not exclusively for the benefit of Jawahar Singh and Bela Singh.
On appeal, the District Judge upheld the dismissal of the suits adding that Hamira having successfully brought a suit for pre emption in respect of a portion of the sale precluded not only himself but his successors as well from acquiring the property.
In this view of the matter, he opined that Jagat Singh and Khazan Singh were not entitled to any share at all in the land.
On further appeal, a Single Judge of the Punjab High Court decreed all the three suits by his judgment dated October 28, 1959, holding that Kishan Singh having been treated as alive by.
the High Court when it passed the previous judgment dated August 3, 1951, the conclusion of the courts below that Kishan Singh had been dead seven years before the institution of the present suits could not be sustained.
While computing the period of limitation, the Single Judge also excluded the time spent on the previous litigation from 1945 to 1951 under section 14(1) of the Limitation Act.
It would be advantageous to reproduce the observations made in this behalf by the.
Single Judge: "Till 3rd of August, 1951, when the judgment (of the High Court in the previous suits) was delivered, the position was that the death of Kishan Singh had not been established.
Admittedly, the whereabouts of Kishan Singh are still not known and, in my opinion, there can be no escape from the conelusion on these facts that the death of Kishan Singh must be presumed under section 108 of the Indian Evidence Act as he had not been heard of for a period of seven years,.
The present suits were brought between 28th of October, 1952 and 12th of May, 1953.
The correct ap proach to reach a solution of the present problem is to give allowance to the plain tiffs, if found necessary, for the period which they spent in previous litigation that is to say, from the years 1945 to 1951.
Under sub section (1) of section 14 of the Indian Limitation Act, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be ex cluded, where the proceeding is found upon the same cause of.
action and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it . .
Both the previous litigation and the present are found on the same cause of action.
The previous litigation ended with the judgment of the Punjab High Court in which it was held that the suit was premature, the plaintiffs having failed to establish the death of Kishan Singh . .
The plain fact of the matter is that no proof is forthcoming of Kishan Singh continued existence since 1945.
Since the judgment of the High Court in 1951, where it was held that the death of Kishan Singh had not been proved 8 years have elapsed.
There can be no escape from the conclusion 261 now that Kishan Singh 's death must be pre sumed.
The decision of the High Court in 1951 should provide a suitable ground for extension of time under provisions of section 14 of the Indian Limitation Act.
The whole basis of the judgment of the courts below, in my opinion, is erroneous.
It is not a requirement of section 108 of the Indian Evidence Act that the date of death of the person whose death is to be presumed must be established.
All that is said is that if a person is not heard of for a period of seven years, his death maybe presumed." The contesting defendants then took the matter in Let ters Patent Appeal to a Division Bench of the High Court which by its Judgment dated July 29, 1964 set aside the afore Said judgment and decree of the Single Judge holding that the Single Judge was in error in excluding.the time spent on the previous litigation by the plaintiffs by apply ing section 14(1) of the Limitation Act.
Relying on the decision of the Full Bench of the Lahore High Court in Bhai Jai Kishan Singh vs People Bank of Northern India, I.L.R. , the Division Bench held that the words. "or other cause of a like nature" occurring in section 14(1) of the Limitation Act had to be read ejusdem generis with the preceding words "relating to defect of jurisdiction" and that it was not possible to give the benefit of that provi sion to the plaintiffs as it could not be regarded that the court was unable to entertain the previous suits because of any defect of jurisdiction or other cause of a like nature merely because of the fact that the court came to the con clusion that the cause of action had not yet arisen.
Ag grieved by this judgement, the plaintiffs have come up in appeal to this Court as already stated.
Before adverting to the contentions raised before us on behalf of the appellants, we must first dispose of the preliminary objection raised by Mr. Mehta, counsel for the contesting respondents, regarding the maintainability of the appeals.
According to Mr. Mehta, the said appeals have been rendered untenable and have to be dismissed in view of the amendment introduced in section 7 of the Punjab Custom (Power to Contest) Act, 1920 (Act 2 of 1920) by the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) which has been given a retrospective operation by sub section (2) of section 1 of the Amending Act.
This contention is, in our opinion, wholly misconceived and cannot be allowed to prevail as it overlooks the savings clause contained in section 4 of the Punjab Custom (Power to Contest) Act, 1920 (Act 2 of 1920) which has been left untouched by the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) and runs thus: "4.
Savings This Act shall not affect any right to contest 'any alienation or ap pointment of an heir made before the date on which this Act comes into force.
" The alienation in question was admittedly made by Chuhar Singh in favour of Bhagwan Singh in 1885 i.e. long before the 28th day of May, 1920 the date on which the Punjab Custom (Power to Con 262 test) Act 1920 (Act 2 of 1920) came into force.
It was, therefore, not at all affected by Act 2 of 1920.
In this view of the matter, it is not necessary to go into the other contention raised by Mr. I Sethi, counsel for the appellants, to the effect that in any event the preliminary objection raised by Mr. Mehta is not tenable as the Punjab Custom (Power to Contest) Amendment Act, 1973 (Act 12 of 1973) had not the effect of abrogating the declaratory decree already obtained by predecessors in interest of his clients prior to the coming into force of the Amending Act.
Having disposed of the preliminary objection, we now proceed to consider the contentions that have been pressed for our consideration by Mr. Sethi, counsel for the appel lants.
He has strenuously urged that section 14(1) of the Limitation Act was applicable to the facts and circumstances of the present case and that the Division Bench of the High Court has grossly erred in not giving the benefit of the provision to the appellants which would have entitled them to the exclusion of the time from October 10, 1945 to August 3, 1951 spent in prosecuting with due diligence and in good faith the previous suits in the court of first instance and in the courts of appeal which expressed their inability to entertain the suits on the ground that they were premature.
There is no force in these contentions.
It cannot be and has not been disputed that the present suits are governed by Article 2 of the Schedule annexed to the Punjab Limitation (Customs) Act, 1920 (Act 1 of 1920) which provides as follows : Description of suit Period of Time from which period limitation begins to run 2.
A suit for poss ession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the pla intiff according to custom (a) if no declar atory decree of the 6 years First : If the alienation nature referred is by a registered deed, to in Article 1 is the date of registration obtained.
of such deed.
Secondly If the aliena tion is not by a regis tered deed (a) if an entry regarding the alienation in the Register of Mutation has been attested by a Revenue Officer under the Punjab Land Revenue Act, 1887, the date on which the entry is attested.
263 (1) (2) (3) (b) if such entry has not been attested, the date on which the alienee takes physical posses sion of the whole or part of the property alienated in pursuance of such alienation.
(c) in all other cases, the date on which the alienation co mes to the know ledge of the plaintiff.
(b) if such declaratory 3 years The date on which the decree is obtained.
right to sue accrues or the date on which de claratory decree is ob tained, whichever is later As the plaintiffs had already obtained a declaratory decree, they had to, in order to be able to succeed, bring their suits within three yers of the accrual of the right to sue (which according to the well settled judicial opinion means the accrual of the right to seek relief) viz. within three years of the death of Kishan Singh when the line of Alia Singh became extinct.
They had to prove affirmatively that the death of Kishan Singh took place within three years of the institution of the suits.
The contention of counsel for the plaintiffs is, however, that Kishan Singh not having been heard of for more, than seven years since August 15, 1945, a presumption of the factum or his death has to be drawn at the expiration of seven years from that date in terms of section 108 of the Evidence Act.
We find it diffi cult to accept this contention.
Granting that Kishan Singh has to be presumed to be dead, it cannot be overlooked that under section 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within seven years lies upon the person who claim a right for the establishment of which the proof of that fact is essential.
The plaintiffs had not only, there fore, to prove that Kishan Singh had not been heard of for a period of seven years and was to be taken to be dead, but it also lay heavily on them to prove the particular point of time within seven years when Kishan Singh 's death occurred.
This they have miserably failed to prove.
In the absence of such proof, it cannot be held that the present suits had been brought within three years of the accrual of the right to sue.
We are supported in this view by a catena of au thorities.
In Nepean vs Doe D. Knight ; 7L J Ex 335 Lord Denman delivering the judgment of the Court observed : "The doctrine laid down is, that where a person goes abroad, and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period 264 during those seven years; that if it be.
important to anyone to establish the precise time of such person 's death, he must do so by evidence of some sort, to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was last heard of.
Such inconveniences may no doubt arise, but they do not warrant us in laying down a rule, that the party shall be presumed to have died on the last day of the seven years, which would manifestly be contrary to the fact in almost all instances.
" This case was followed by a Division Bench of the Bombay High Court as far back as 1916 in Jayawant Jivanrao Desh pande vs Ramchandra Narayan Joshi (A.I.R. 1916 Bom.
300) A similar view was taken by the Privy Council in Lalchand Marwari vs Ramrup Gir (LIII I.A. 24: A.I.R. 1926 P.C. 9) where it was observed : "Under the Indian Evidence.
Act, 1872, section 108, when the Court has to determine the date of the death of a person who has not been heard of for a period of more than seven years, there is no presumption that he died at the end of the first seven years, or at any particular date." Another case in point is jiwan Singh vs Kuar Reoti Singh & Anr.
(A.I.R. 1930 All. 427), where it was held : "The presumption raised by section 108 is confined to the factum of death and not the exact time when death may have occurred.
Where a party affirms that a certain person died on or before a particular date, that fact has to be established by positive evidence.
" Similar view was expressed in Kottapalli Venkateswarlu vs Kottapali Bupayya & Ors.
(A.I.R. 1957 A.P. 380).
In Punjab & Ors.v.
Natha & Ors.
(A.I.R. 1931 Lab. 582).
a Full Bench of the Lahore High Court observed : "Where a person has not been heard of for seven years when a suit is instituted, section 108 comes into operation and raises a presump tion that at the institution of the suit he was dead, but no presumption arises as to the date of his death, which has to be proved in the same way as any other relevant fact in the case." Again in Ram Kali & Ors.
vs Narain Singh (A.I.R. 1934 Oudh 298 F.B.) it was laid down: "If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential." 265 In the instant cases, assuming that Kishan Singh died within seven years of the institution of the suits out of which the present appeals have arisen, even then the benefit of the section 14 cannot be allowed to the appellants.
This provision in so far as it is material for our purpose runs as follows : "14(1).
In computing the period of limitation prescribed for any suit the time, during which the plaintiff has been prosecut ing with due diligence another civil proceed ing, whether in a court of first instance or in a Court of Appeal, against the defendant shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it . . " It would be noticed that three important conditions have to be satisfied before the section can be pressed into service.
These three conditions are (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prose cuted in good faith in a court which from defect of juris diction or other cause of a like nature was unable to enter tain it and (3) the earlier proceeding and the later pro ceeding must be based on the same cause of action.
Now the words "or other cause of a like nature" which follow the words "defect of jurisdiction" in the above quoted provision are very important.
Their scope has to be determined according to the rule of ejusdem generis.
Ac cording to that rule, they take their colour from the pre ceding words "defect of jurisdiction" which means that the defect must have been of an analogous character barring the court from entertaining the previous suit.
A Full Bench of the Lahore High Court consisting of Hatties C.J., Abdur Rahman, J and Mahajan J. (as he then was) expressed a simi lar view in Bhai Jai Kishan Singh vs People Bank of Northern India (supra).
In the instant cases, it is not denied by the ' plaintiffs that the Court which tried the previous suits was not pre cluded from entertaining them because of any defect of jurisdiction.
We have, therefore, only to see whether the said court was unable to entertain the former suits on account of any defect of an analogous character.
Even a most liberal approach to the question does not impel us to hold that the court trying the earlier suits was unable to entertain them on any ground analogous to the defect of jurisdiction.
In Dwarkanath Chakravarti vs Atul Chandra Chakravarti (I.L.R. where the court trying the previous suit had refused to entertain a claim for rent because it was premature, it was held that in a subsequent suit for the aforesaid rent, the plaintiff could not rely upon the provisions of section 14(1) of the Limitation Act and say that the time did not run against him while those proceedings were being prosecuted.
Again in Palla Pattabhi ramayya & Ors.
vs Velaga Narayana Rao (A.I.R. it was held that the fact that the previous suit was dis missed as the plaintiff had no cause of action was not a ground which was covered by section 14 (1).
266 Thus it could not be held that the court which tried the previous suits but eventually threw them out as.
premature suffered from inability or incapacity to entertain the suits on the ground of lack of jurisdiction or any other defect of the like character.
Accordingly the exclusion of the period from December 18, 1945 to August 3, 1951 sought by the appellants cannot be legitimately allowed to them while computing the period of limitation.
There is also another factor which prevents us from granting the benefit of section 14(1) of the Limitation Act to the appellants.
It would be seen that in the previous suits, the plaintiffs had averted that the cause of action accrued to them on the death of Kishan Singh which had occurred on August 15, 1945.
They have, however, as already indicated by reference to the averments made in paragraphs 5, 6, 8, 9, and 10 of the petition of plaint based the present suits on a different cause of action.
It is, however, not necessary to dilate upon this aspect of the matter in view of our categoric finding that the earlier suits did not suffer from any defect of jurisdiction or any other defect of the like character which could have preclud ed the court from entertaining them.
It is also significant that the protection of section 14(1) of the Limitation Act was not claimed by the plain tiffs either in the Trial Court or in the first appellate court.
Assuming, therefore, that Kishan Singh died within seven years of the institution of the suits.
out of which the present appeals have arisen even then the protection of section 14(1) cannot be allowed to the appellants and.
the suits have to be dismissed as time barred in terms of sec tion 5 of the Punjab Limitation (Customs) Act, 1920, (Act 1 of 1920) which is reproduced below for facility of reference : "5.
Dismissal of suits of the descrip tion specified in the act if instituted after the period of limitation herein prescribed has expired.
Subject to the provisions con tained in sections 4 to.
25 (inclusive) of the Indian Limitation Act 1903, and notwithstand ing anything to the contrary contained in the first schedule of the said Act, every suit, of any description specified in the schedule annexed to this Act, instituted after the period of limitation prescribed therefor in the schedule shall be dismissed, although limitation has not been set up as a defence.
" As a result of the foregoing discussion, the appeals fail and are hereby dismissed.
In view, however, of the circumstance of the case, the parties are left to pay and bear their own costs in these appeals.
BEG, J.
The question before us is: Were the three suits, the first instituted on 21st October, 1952, the second on 18th December, 1952, and the third on 5th May, 1953, tried and heard together, cut of which the three appeals before us arise, filed within time, and if they were filed beyond time, whether the plaintiffs in each suit were entitled to the benefit of Section 14 of the Limitation Act ? 267 Plaintiffs in the three suits instituted in circum stances explained fully by my learned brother Jaswant Singh, included all those persons who could sue as reversioners of Kishan Singh if it was proved that he was dead or presumed to be dead; and, they are all appellants before us.
It is evident from a bare statement of the case set up in each of the identically similar plaints in the suits now before us that, as three previous suits filed by these very plaintiffs in 1945 for the same reliefs had failed against the same defendants for want of proof of date of death of Kishan Singh, the suits now before us were based on somewhat dif ferent allegations setting up a new cause of action.
Other wise obviously, they would have been barred by res judicata.
As the learned Single Judge, before whom the three cases now before us first came up in the High Court, had pointed out, the earlier suits had failed because they were held to.
be pre mature so.
far as the cause of action now before us is concerned and for want of proof of the date of death of Kishan Singh so far as the actual cause of action set up there was concerned.
We also indicated, quite clearly, how the causes of action in the earlier and later sets of liti gation were quite different.
and why the new cause of action arose within three years before the filing of the suits.
Considerable confusion seems to have been caused by the prolixity of pleadings in the case so that, although the plaintiffs asserted clearly the accrual of a new cause of action, with the aid of a presumption, they were saddled with the responsibility to discharge another onus tied to the proof of a particular date which had been abandoned by them after their dismal failure in the earlier litigation to prove the actual date of death of Kishan Singh who.
had disappeared.
Could they fail again for the same reason although the cause of action they set up is fresh and dif ferent and arose within three years before filing of the suits ? That is the real question we have to answer.
Perhaps the way in which I look at the question and have stated it makes.
an answer in the negative unavoidable.
Hence, my inability, with great respect, to concur with another view put forward by my learned brother Jaswant Singh.
I think that the learned Single Judge, dealing with the question of limitation in the High Court, had correctly summarised the.
whole position and found as follows even without going into the question of burden of proof of date of death of Kishan Singh: "All the three sets of plaintiffs have come up in second appeal to this Court and Mr. M.L. Sethi has addressed a very persuasive argument on the question of limitation which in reality is now the only substantial matter in dispute.
He has pointedly brought to my notice the anomalous and baffling situation in which the plaintiffs have been placed.
According to the judgment of the High Court of 3rd August, 1951, it was found that the death of Kishan Singh had not been proved.
In other words, Kishan Singh was deemed to have been alive at the time when the High Court decree was passed on 3rd of August, 1951.
If that position is accepted, as indeed it must, the conclusion of the 268 Courts below, that Kishan Singh had been dead seven years before the institution of the present suits, cannot be sustained.
To this position there is the added complication of the defendant 's own admission that Kishan Singh was alive at the time when the statement was made by their counsel Milkhi Ram on 27th of April, 1953.
I find myself unable to assent to the proposition on which both the, courts below have founded their conclusions that suits must be.
regarded as barred by time as the date of death of Kishan Singh had not been proved.
The District Judge has arrived at his conclusion because in the previous suits it was asserted that Kishan Singh had died on 15th of August, 1945.
As the death of Kishan Singh had not been proved, the suits were dismissed up in the High Court being premature.
It passes my comprehension how it can now be said that Kishan Singh died some time before 1945 and the suits having been brought more than three years after his death are now barred by statute.
The previous suits filed by the three different sets Of plain tiffs were founded on the allegation that Kishan Singh had died in Ahmedabad some where in August 1945.
A good deal of oral and documentary evidence was led in support of Kishan Singh 's death.
The conclusion of the learned District Judge (Mr. Chhakan Lal) was that the plaintiffs had not succeeded in establishing the death of Kishan Singh and it could not, there, be held that the line of Alia had become extinct.
In the judgment, in second appeal, of Harnam Singh J., the only question which, was discussed was whether the death of Kishan Singh had been proved.
It is pertinent to observe ' that in the High Court it was common ground between both the parties that the: case did not fall under section 108 of the Indian Evidence Act.
Like the District Judge, Harnam Singh J. discussed the oral and documentary evidence, which had been adduced by the parties and agreed with the finding of the lower appellate Court.
Till 3rd of Au gust, 1951, when the judgment (of the HC in the previous suits) was delivered.
posi tion was that the death of Kishan Singh had not been established".
It seems to me that the learned Single Judge had suffi ciently indicared that the cause of action in the previous litigation was different from the one now before us inasmuch as the facts now proved indisputably, showing that Kishan Singh must be presumed to be dead, could not be and were not set up in the.
earlier suits.
In 1945, this cause of action had not accrued.
As the learned Single Judge held, the effect of the judgment in the formed suits was that those suits were premature.
This could not be said of the suits now before us in appeal.
It is true that the learned Single Judge had thought that, alternatively, Section 14 of the Limitation Act could apply inasmuch as the causes of action in the previous litigation as well as in the present litigation were identi cal.
In so far as the learned Single Judge postulated though for a limited purpose, an identity of causes of action of the previous and the present sets of suits, the assumption was inconsis 269 tent with his own emphatically expressed opinion revealing the difference in the causes of action.
The plaints in the suits before us set out the history of the whole litigation and clearly set up a case founded on new facts, not in existence at the time of the earlier litigation, and ex pressly state why the plaintiffs now rely on the presumption of death of Kishan Singh.
The identically similar plaints of the plaintiffs now before us were not based upon any assertion or plea of their own dispossession.
For such suits the period oil limitation was given in Article 2 to the schedule of the Punjab Limita tion (Customs) Act of 1920.
The provisions are set out in the judgment of my learned brother Jaswant Singh.
The period of limitation for such suits is three years from "the date on which right to sue accrues or the date on which declaratory decree is obtained, whichever is later".
If the previous suits were dismissed, as it seems to me that they were, on the ground inter alia, that they were premature, the cause of action could only be said to have accrued after their institution.
It seems to me that the learned District Judge, the fianl Court of facts in the suits now before us, had failed to determine the question whether Section 108 of the Evi dence Act could come to the aid of the plaintiffs on the erroneous assumption that, in any case, the plaintiffs ' suits would be barred by time as the plaintiffs had not proved when Kishan Singh had died.
The learned District Judge seemed to hold the view that not only would the plain tiffs ' suits be barred by limitation, because the plaintiffs could not prove the actual date of Kishan Singh 's death, but also that the presumption under section 108 itself will not be available to a party which could not prove the date of death of the person to be presumed to be dead.
At any rate, the learned District_ Judge was far from clear on the ques tion whether Section 108 would apply to the case.
He re corded his conclusion as follows: "So, it is clear from the above discussion that the plaintiffs appellants have failed to show that their suits are within time from the date of the death of Kishan Singh.
No doubt the presumption is there that Kishan Singh is not heard of for the last 7 years but the date of death was very necessary to be proved and this has not been done by any of the witness es".
If the date of death of Kishan Singh had to be proved by the plaintiffs, no question of invoking the aid of a pre sumption to prove death could arise.
Proof of death would dispense with the need reply on any mere presumption of death.
The result of the District Judge 's failure was that the Single Judge of the Punjab High Court had to record essential findings of fact on this crucial question.
of availability of the presumption of death.
These indicated, beyond the shadow of doubt, that the plaintiffs were enti tled to the benefit of the presumption laid down by Section 108 of the Evidence Act.
This meant that, on new facts asserted and proved, Kishan Singh could be presumed to be dead when the suits now before us were instituted in 270 1952 and 1953.
And, this presumption of the death of Kishan Singh having become available to the plaintiffs within three years of the suits and not before, no occasion for applying Section 14 Limitation Act could arise.
The defendants, while pleading the bar of limitation to the suits had, quite inconsistently, also tried to suggest that Kishan Singh was either alive or must be assumed to be alive.
The plaintiffs could not be expected, on their plea that, proof of date of death of Kishan Singh being absent, they were relying only on the presumption of death, to lead evidence Of any date of death.
All that could be reasonably expected from them was to show that the presumption became available to them within three years before the filing of their suits.
The learned Single Judge of the High Court had, in my opinion correctly, recorded the following finding which made the presumption of death of Kishan Singh avail able to the plaintiffs: "The plain fact of the matter is that no proof is forthcoming of Kishan Singh continued existence since 1945.
Since the judgment of the High Court in 1951, where it was held that the death of Kishan Singh had not been not proved, 8 years have elapsed.
There= can be No. escape from the conclusion now that Kishan Singh 's death must be presumed".
The learned Single Judge had also observed: "The decision of the High Court in 1951 should provide a suitable ground for extension of time under provisions of Section 14 of the Indian Limitation Act.
The whole basis of the judgment of the Courts below, in my opinion, is erroneous.
It is not a requirement of section 108 of the Indian Evidence Act that the date of death of the person whose death is presumed must be established.
All that is said is that if a person is not heard of for a period of seven years, his death may be pre sumed.
There is no presumption as to the time of death at any particular time within that period".
As I have already indicated, there was no need here to seek the aid of the provisions of Section 14 Limitation Act.
In Mohd. Khalil Khan vs Mohboob Ali Mian,(1) it was laid down: "A rough test, although not a conclusive one, as to whether the cause of action in a subsequent suit is the same as that in the former suit, is to see whether the same evidence will sustain both suits, and regard should be had to the allegations in the two suits, and not the facts found by the Court in the former suit".
On the facts of the cases before us, we find the evidence sought to be given in the previous suits was that Kishan Singh had died on a particu lar date (i.e. 15th.
August, 1945), but, the evidence in the subsequent suits (now before us for decision) was not that he had died on a particular date but that he had not been heard of from 5th August, 1945, up.to the time of the filing of new suits.
This evidence could not be given in the previous suit 'section Hence, the above test is satisfied.
(1) A.I.R. 1949 P.C. 78, 86. 271 In Smt.
Mahadevi vs Kaliji Birajman,(1) it was held that, if certain additional facts had to be proved for the success of the subsequent suit, the causes of action would differ.
It did not matter if there is a certain common ground to be covered by the evidence in both sets of cases.
This test would also be satisfied in cases before us now because the additional facts show that Kishan Singh had not been heard of by those who would have otherwise heard of him in the course of seven years.
This evidence could not be led at all in the previous suits as they were filed very soon after the alleged date of death of Kishan Singh.
If causes of action differ from suit to suit, the accrual of the cause action can also not be tied down to a particular kind of fact such as the date of actual death of the holder of the property.
Once it is held that the causes of action differ for purposes of their accrual, their accrual could not be made to depend on facts of one type only.
Facts denoting their accrual must differ from case to case.
Of course, proof of date of actual death is conclusive.
But, where the basis of the right to sue is presumption of death the date of accrual of the right is the date on which that presumption matures.
I have set out above the reasoning which appeals to me and makes the decision of this Court in India Electric Works Ltd. vs James Mantosh & Anr.
,(2) applicable to the cases now before us.
In that case, the appellant before this Court was a defendant tenant in a suit for recovery of damages with interest and costs.
In a previous suit the predecessor in interest of the plaintiff had sued the de fendant for ejectment, but the defendant had continued in occupation of the premises as the suit was compromised.
The accommodation was requisitioned on 2nd February, 1945.
After the accommodation was released by the Govt.
on 21st Novem ber, 1945, the plaintiff filed two suits against defendant one for the recovery of damages upto 1st February, 1944, and another for damage 's from 22nd November, 1945, upto the date of recovery of possession although there was no suit for possession.
When the matter came up before the High Court in appeal, the High Court disallowed the claim for future mesne profits on the ground that it "was a pure money suit and not a suit for recovery of possession of immovable property and for mesne profits under Order 20, Rule 12, Civil Procedure Code".
The plaintiff then filed a third suit on 5th November, 1956, for recovery of Rs.28,650/ as damages with interest thereon for a period from 22nd Novem ber, 1948, to 5th November, 1956.
The benefit of Section 14 of the Limitation Act was claimed for the amount claimed for the period beyond three years.
Two of the learned Judges of this Court, Shah and Grover, JJ., held that, although the claim for future mesne profits, not having been satisfied by the money suit of 1948, in which the decree of the Trial Court was Set aside on 30th June, 1955, by the High Court, a fresh cause of action arose from 30th June, 1955, yet, it was unnecessary to decide the case on that principle because the Court was satisfied that, in any event, Sec tion 14(1) of the Limitation (1) 1969 All L.J. 896.
(2) ; 272 Act, which had to be construed liberally, would cover the period for which the claim was said to be barred by limita tion.
Though, the third learned Judge, Hegde, J., seemed to be of the opinion that Section 24(1) of the Li,mitation Act could not help the plaintiff, yet, following the decision of the Judicial Committee in Mst.
Ranee Surno Moyee vs Shooshee Mokhee Burmonla & Ors.
(1) which had governed later decisions of the Privy Council and various High Courts a new cause of action, arising within the period of limitation, would , ensure to the benefit of the plaintiffs.
It seems to me that the lines on which the case of India Electric Works (supra) was decided enable us to correctly decide whether a new cause of action had accrued in favour of the plaintiffs in the suits before us, which were filed within three years of the accrual of this cause of action, as well as on the question whether, if this be not the correct position, Section 14(2) of the Limitation Act could be invoked by plaintiffs.
Indeed, the view accepted by the three Judges of this Court, that it is enough to institute proceedings within the prescribed period from the accrual of the fresh cause of action, appears to me to provide the common view we cannot reject.
This view would apply if we agree, as my learned brother Jaswant Singh does, that a cause of action had arisen here.
In State of Madras vs
V.P. Agencies & Anr.
,(2) Das, C. J., referred to various expositions of the meanings of the term "cause of action", including that by Lord Watson, in Mst.
Chand Kour vs Partap Singh,(3) where we find (at p. 1310): "Now the cause of action, has no rela tion whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff.
If refers entirely to the grounds set forth in the plaint as the cause of ac tion, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour".
The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circum stances which constitute either the infringement or the basis of a right and no more.
In a wider and more compre hensive sense, it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed.
These are all those essential facts without the proof of which the plaintiff must fail in his suit.
Now, whether we use the expression in the narrower or in the wider sense, in the case before us, the death of Kishan Singh was certainly an essential part of the cause of ac tion.
It had to be proved to enable the plainttiffs to put forward their claims to succeed at all.
But, proof of the date of death was not essential or indispensable for that purpose.
It could only become material in deciding whether the right which had accrued had (1)12 Moore 's I.A. 244.
(2) A.I.R. 1960 S.C. 1309 at 1310.
(3) 273 been extinguished by the law of limitation.
Both the nar rower and the wider sense of the term "cause of action" would certainly include all those facts and circumstances on the strength of which the plaintiffs urged that they were entitled to the benefit of the obligatory presumption of law contained in Section 108 of the Evidence Act.
As these were not available to the plaintiffs before the expiry of seven years from 5th August, 1945, it does not seem to be possible to urge that this cause_ of action had arisen more than three years before the filing of the suits now before us.
Applying the tests stated above, the causes of action in the earlier and later litigations would, in my opinion, be materially different.
We could only hold that no cause of.
action had arisen at all if we assume that Kishan Singh had not died at all.
And, how could we assume that without disregarding Section 108 Evidence Act ? If we cannot do that, the cause of action could only accrue when we could presume that he is dead, And, the date of its accrual could not possibly lie a day earlier than 7 years after 5th Au gust,1945, when Kishan Singh was last heard of.
As indicated above, the identity of the relief asked for in the earlier and later suits does not matter.
It also does not matter that the defendant in both sets of suits have.
attempted to suggest that Kishan Singh is still alive.
It iS they who had asserted that the plaintiffs ' rights were extinguished by the operation of the law of limitation.
Therefore, strictly speaking, it appears to me that it was for the defendants to establish, if they could, that Kishan Singh was either alive or had died more than three years before the 'suits were filed.
There is no proof of either of these here, The presumption under Section 107 of the Evidence Act could not.
come to the aid of the defendants when the plaintiffs had established facts necessary to raise the presumption under Section 108 of the Evidence Act.
There seemed to be irrefutable evidence that, after a letter of Kishan Singh, received at Ahmedabad on 5th August, 1945, nothing had been beard or was known about him.
Hence, the plaintiffs relied on the presumption under Section 108 Evidence Act 'because 'they could not prove the actual date of death which had a bearing only on the bar of limitation set up by the defendants.
As has been pointed out some times, the function of a presumption is to fill a gap in evidence.
In these circumstances, it seems to me that the defendants should have been called upon to show, before relying upon the bar of limitation, how the death of Kishan Singh took place on a date.
beyond three years of the filing of the suit before the question of applying Section 14 Limitation Act could arise at all.
The plaintiffs could only be required to show the accru al of their cause of action within the prescribed period of limitation.
They had, obviously, discharged that burden.
If the "media", to use the term employed by Lord Watson, quoted earlier, upon whiCh the plaintiffs rest their cases, are different in the previous and subsequent litigations, the causes of action are different, as held by ray learned brother Jaswant Singh also.
And, if the two causes of action are different, each with a different date of accrual that being the basic difference between the two sets of suits we have only to determine the date 19 1458SCI/76 274 of accrual of the second cause of action.
If the alleged date of death of Kishan Singh was the date of accrual of the previous cause of action, the date of accrual of the second could only be something other than this date of death of Kishan Singh.
It could not possibly be the same.
And, that other date of accrual could only be subsequent to 5th Au gust, 1945, because, as indicated above, it was held in the previous suit that ,the suit was premature on the ground that seven years since Kishan Singh was last heard of on 5th August, 1945, had not elapsed then.
Since the evidence was that he was last heard of at Ahmedabad on 5th August, 1945, the only possible date of accrual of the subsequent cause of action here could be seven years after that (i.e. 6th Au gust, 1952).
The suits before us were flied within three years of that date.
Therefore, I fail to see how the suits before us could possibly be held to be barred by Limitation.
We must not forget that Article 2 of Schedule to the Punjab Limitation (Customs) Act 1 of 1920, lays down that limitation for a suit for possession, which applies to the case before us, commenced from "the date on which the right to sue accrues" and not from the date of death of the holder of property.
The term "fight to sue" must, I think, be equated with "cause of action", unless the context indicates otherwise.
The choice of words used must be presumed to be deliberate.
I do not think that we can substitute "the date of death" for the date of accrual of "the right to sue '.
In the Limitation Act, as well as in other statutes, the accrual when intended to be tied to the date of some event, is specified as the date of that event.
Here, it is not so.
We cannot, without an obvious inconsistency with our find ings that the causes of action in the previous and subse quent limitations were different, hold that the date of accrual in both sets of suits is one and the same, that is to say, the actual date of death.
Such a view could, I think, be contrary also to the plaintiffs ' pleading where the difference in the causes of action must be found.
The solution to the difficulty before us emerges automatically if we answer two questions correctly: What was the differ ence between the two causes of action ? What is the effect of that difference upon the date of accrual of the subse quent and different cause of action ? It is well established that it is not in every suit for possession that the commencement of date dispossession must be established by the plaintiff.
It is only in a suit for possession, based on the allegation by the plaintiff of his own dispossession, that the burden has been held to be governed by Article 142 of the repealed Limitation Act (See Ram Gharib vs Bindhiyachal(1), and the plaintiff is required to prove the date of his dispossession within limitation.
Its equivalent, the present Article 64 of the Limitation Act of 1963, places the position beyond the region of every conceivable doubt.
: "64.
For possession of Twelve years The. date of immovable property dispossession.
based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
(1) A.I.R. 1934 All.
(ST.) 993.
275 Objects and Reasons Articles 142 and 144 of the existing Act have given rise to a good deal of confusion with respect to suits for possession by owners of property.
Article 64 as proposed replaces article 142, but is restricted to suits based on possessory title so that an owner of property does not lose his right to the property unless the defendant in possession is able to prove adverse posesssion".
(See: Chitaley & Rao the Limitatian Act 1903 Vo1.
There is no suggestion whatsoever in the suits before us that the plaintiffs were ever in possession so that no ques tion of their dispossession could possibly arise.
It was a pure and simple suit for possession on the basis of title against which the defendants had not even alleged adverse possession.
Hence, there was, it seems to me, no room here for bringing in the actual date of death, constructively, as the date of some presumed dispossession or adverse pos session which has not been asserted anywhere.
As pointed out earlier, the defendants seem to have cleverly drafted theft pleadings so that a Division Bench of the High Court, which had erroneously allowed the defendants ' appeals, had been misled into placing a burden upon the plaintiffs which, according to law, as I see it, could not rest there at all.
The Division Bench applied decisions on Section 14 of the Limitation Act when this provision could not, as explained below, be invoked at all.
The plain and simple question which arose on the pleadings was whether seven years had elapsed since Kishan Singh was last heard of by those who would, in the natural course of events, have heard from or about him if he was alive, and if so, did this happen within three years before the filing of the suits ? The plaintiffs have asserted and proved that this period of seven years had elapsed.
Accord ing to them, their cause of action matured within three years of their suits.
Even if, by some stretch of imagina tion, the concept of adverse possession of the defendants were to be introduced in this litigation, when neither the plaintiffs nor the defendants have pleaded it, it is abun dantly clear that the legal position is that the possession of defendants could not conceivably be adverse to Kishan Singh 's reversioners even before Kishan Singh could be presumed to be dead.
Indeed, the defendants had themselves set up the plea that he must be still deemed to be alive.
On these pleadings, the plaintiff could only be required to prove Kishan Singh 's death but not the date of his death or the date of the plaintiff 's dispossession which can occur only after a previous possession of the plaintiffs followed by the adverse possession of the defendants.
Neither cases dealing with recovery of possession on the plaintiff 's allegation of his own dispossession nor those where proof of date of death was a necessary part of either the cause of action or the plaintiff 's statutory duty, for showing that the suit was within time, are really applicable here.
We have a simple case before us where the cause of action seems to me to have clearly been shown to have arisen within three years before the filing of the suits.
Nevertheless,I will deal here with some authorities which are relied upon by my learned brother Jaswant Singh.
The first of these is: Nepean vs Deo D. Knight(1).
Inthis case, an action for ejectment was brought, apparently on an allegation (1) English Reports 150 Exchequer p. 1021.
276 of dispossession of the plaintiff by the defendants.
It was pointed out here that the terms of a statute, applicable in the case, having done away with the doctrine of "adverse possession", except in certain cases specially provided for, the question of adverse possession was unimportant.
It was, however, held that there was a statutory duty cast upon the plaintiff to bring his suit within twenty years of the accrual of the right of entry.
The date of this accrual, therefore, became essential to prove as a statutory duty.
On the terms of statutory provisions to be construed and the facts of the particular case, Denman C. J. said: (at p. 1029): "It is true the law presumes that a person shewn to be alive at a given time remains alive until the contrary be shewn, for which reason the onus of shewing the death of Matthew Knight lay in this case on the lessor of the plaintiff.
He has shewn the death by proving the absence of Matthew Knight, and his not having been heard of for seven years, whence arises, at the end of those seven years, another presumption of law, namely, that he is not then alive; but the onus is also cast on the lessor of the plaintiff of shewing that he has commenced his action within twenty years after his right of entry accrued, that is, after the actual death of Matthew Knight".
This was really a case in which it was not enough to invoke the presumption of death, but, the right to sue itself depended on commencing the suit within 20 years of the date of accrual of the right to entry which was held to be the actual date of death of Matthew Knight who had disappeared In the case before us, I think that the accrual of the right to sue arises only seven years after Kishan Singh was last heard of.
If Nepean 's case (supra) could or did lay down anything applicable to the cases before us, I am unable, with great respect, to accept it as correct law which we could follow.
In my opinion, the facts as well as the applicable provisions of law in the case before us are very different from those in Nepean 's case (supra) which could, in any event, not be more than an authority of some persua sive value in this Court.
In Jaswant livanrao Deshpande vs Ramchandra Narayan Joshi,(1) in a suit governed by Article 141 Limitation Act, it was held (at p. 301): "article 141 Lira.
Act, is merely an exten sion of article 140, with special reference to persons succeeding to an estate as reversioners upon the cessa tion of the peculiar estate of a Hindu widow.
But the plaintiff 's case under each article rests upon the same principle.
The doctrine of non adverse possession does not obtain in regard to such suits and the plaintiff suing in ejectment must prove, whether it be that he sues as a remainderman in the English sense or as a reversioner in the Hindu sense, that he sues within 12 years of the (1) A.I.R. 1916 Bom.
300 @ 277 estate failing into possession, and that onus is in no way removed by any presumption which can be drawn according to the terms of section 108,Evidence Act.
The exact point for the purpose of article 140, and also, in our opinion, of article 141, has been decided many years ago in England soon after the passing of the English Law of Limitation regarding Real Property in Nepean vs Deod.
Knight L.J. exhibit 335".
It is evident that here the cause of action laid down by the statute itself arises from actual date of death.
This case, like the previous one, turns on the special meaning of the statutory provisions prescribing a person 's actual death as the point of time from which the period of limitation is to commence.
In the cases before us the statute explicitly makes a different provision.
We are not concerned at all here with anything more than an accrual of a right to sue which must be shewn to arise within the prescribed period.
No question of any accrual of a right of re entry or one arising from adverse possession or the date on which such rights could conceivably arise is before us at all.
In Lal Chand Marwari vs Mahant Ramrup Gir & Anr.
(1) the suit seems to have been based on an allegation by the plain tiff of his own dispossession by the defendant.
Hence, it.
was governed by Article 142 of the former Limitation Act, the equivalent of which is Article 64 of the Limitation Act of 1963.
It seems to me that Article 144 of the old Limita tion Act is mentioned by mistake in the body of the judgment here.
In any event, the statement of facts showed that the plaintiff had pleaded his own dispossession, or, at least, the plaint could be so construed as to imply that.
Hence, a case of this.
type is distinguishable.
In Jiwan Singh vs Kaur Reoti Singh & Anr,(2) a decree in a previous suit brought against a person alleged to be insane as well as not heard of for more than seven years had been assailed on several grounds: that, the defendant was insane; that, the defendant was unheard of for more than seven years, and, therefore, should have been deemed to be dead; that, the decree was obtained by fraud.
As the High Court upheld the plea of fraud, it did not consider it necessary to decide on other grounds.
Nevertheless, it pointed out, quite correctly, that the presumption under Section 108 of the Evidence Act only enables the Court to presume the factum of death but not the date of death.
No question of limitation arose at all in this case.
In Kottapalli Venkateswarlu vs Kottapalli ' Bapaya & Ors,(3) reliance was placed, Inter alia, on Punjab vs Natha,(4) which, in my opinion, was wrongly decided.
Venkateswarlu 's case (supra), however.
arose on facts and circumstances in which the proof of date of death was neces sary to determine as the question was whether a legatee had (1) A.I.R. 1926 P.C. 9.
(2) A.I.R. 1930 All. 427.
(3) A.I.R. 1957 AP.
(4) A.I.R. 1931 Lah.
582 (F.B.).
278 survived the testator.
In such a case, proof of date of death is necessarily a part of the cause of action.
In Ram Kali & Ors.
vs Narain Singh,(1) it was held that: (at section 299 300): "Before the plaintiff can succeed in approving himself to be the nearest reversion ary heir, he must prove in sequence that Harpal Singh and after him Pahalwan Singh and after him Sheo Ghulam Singh and after him Kali Singh predeceased Ram Lal.
The exact date of Ram Lal 's death is important from the point of view of the success of the plaintiff 's case, because it was only then that succession opened out, and it is only by proving the exact date of Ram Lal 's death that the plain tiff can succeed in establishing his claim to be the nearest reversionary heir of Ram Lal".
This, in my opinion, is the type of case in which the date of death is an essential part of the plaintiff 's cause of action so that the failure to prove it would involve the failure of the plaintiff 's suit.
Incidentally, it may be observed that this also seemed to be a case in which the plaintiff appears to have come to the Court with a suit for possession on the allegation of his own dispossession.
Hence, it became necessary for the plaintiff to prove the date of commencement of the defendant 's adverse interest.
It seems to me that wherever the accrual of a right or com mencement of a period of limitation, within which a suit must be shewn by the plaintiff to have been brought, can only be established by proving the date of a person 's death that duty must be discharged by the plaintiff or the suit will fail.
But, to carry the doctrine beyond that and to lay down that the date of death must invariably be proved whenever the question of limitation is raised in such cases must result in stultifying or defeating legal rights and wiping out the effects of a statutory presumption.
An accrual of a cause of action based on untraceability of the owner cannot be said to depend at all on proof of either actual death or the date of the actual death of the owner.
It accrues as soon as death can be presumed and not a day earlier.
I may point out that the rule laid down in re Phene 's Trusts(2), which has been repeatedly followed by the Privy Council and by our.
High Courts, was enunciated in the circumstances of a case in which it was absolutely essential for the success of the claim before the Court that a legatee claimant must be shown to have survived a testator.
It was a case in which there was a competition between claimants which could only be resolved by a decision of the question as to who died first.
It is in such circumstances that the onus of proving the date of death also would properly and squarely lie upon the plaintiff claimant.
The general principles were thus enunciated in this case(at p. 144): "First: That the law presumes a person who has not been heard of for seven years to be dead, but in the absence (1) A.I.R. 1934 Oudh 298 @ 289,300.
(2) 5 Chancery Appeal cases p. 139 @ 144.
279 of special circumstances draws no presumption from that fact as to the particular period at which he died.
Secondly: That a person alive at a certain period of time is, according to the ordinary presumption of law, to be pre sumed to be alive at the expiration of any reasonable period afterwards.
And, thirdly: That the onus of proving death at any partic ular period within the seven years lies with the party alleging death at such particular period".
It is neither a part of the case of any plaintiff before us nor necessary for the success of his case to prove that Kishan Singh died on a particular date or that.
Kishan Singh died before or after somebody else.
I, therefore, fail to see, with great respect, how the plaintiffs can be saddled with the responsibility to prove this date in the suits now before us.
It was nobody 's case that Kishan Singh died long ago and that the defendants have been in open hostile ad verse possession against Kishan Singh and whoever may be his heirs or feversioners.
In the earliest litigation, the defendants claimed as transferees of the rights of Kishan Singh.
The declaratory decree restricted their rights to the life time of Kishan Singh.
Their rights could not extend beyond the point of time when Kishan Singh must be presumed to be dead.
That is the farthest limit of their rights.
They knew this after the litigation which terminat ed in 1902.
That is why, in the suit 's now before us, they took up the alternative case, though rather obliquely, that Kishan Singh must be or at least deemed to be alive, so that they may benefit from the declaration in 1902 that their rights were limited to the life time of Kishan Singh.
If, even after litigating for such a long period, the plaintiffs are still to be denied their rights to Kishan Singh 's property, to which they were declared entitled to succeed, they would be really deprived of the benefit of the presumption under section 108 of the Evidence Act on the ground that they could not prove the date of his death when they have been asserting repeatedly that the basis of their present claim is that although the actual date of death of Kishan Singh cannot be proved, yet, he has not been heard of for seven years and that they had to wait seven years more for this claim to mature.
That it could and did mature in 1952 follows logically from the judgment of the High Court in 1951 which is binding inter partes.
The plaintiffs are, in my opinion, on the actual basis of their claims, entitled to succeed.
That basis having emerged within three years before the filing of the suits, their suits could not possibly be barred by time.
If the right to sue had not been proved to have accrued at all, due to want of proof of date of death of Kishan Singh, the suits could perhaps, more logically be held to be still premature or infructuous.
But, I fail to see how, even on such a view, we could hold them to be barred by time.
If the cause of action itself does not arise no question of the extinguish ment by the law of limitation could emerge.
If, for some reason, we could still hold that the plain tiffs ' claims were made beyond the period of Limitation.
I think that this would be a fit case in which Section 14(1) of the Limitation Act could 280 come to the aid of the plaintiffs provided there was identi ty of issues to be tried.
The previous suits did not fail for want of jurisdiction.
Nevertheless, the provision has to be liberally construed as this Court has to be a period of time, shown to have elapsed since the expiry of the present suits was certainly due to the fact that no Court could decree the claim before the cause of action matured.
This was, certainly beyond the control of the plaintiffs.
There fore, a cause of "like nature" to a defect of jurisdiction seems to me to be there.
Indeed, it could be urged that it is a stronger ground in equity than a lack of jurisdiction which can be foreseen with sufficient deligence.
It is far more difficult to predict the outcome of a suit depending largely on oral evidence.
The defect revealed by the evi dence in he earlier litigation was that the suits did not lie at all as they were "premature".
This was, in my opin ion, a defect reasonably comparable to want of jurisdiction.
I, however, find it very difficult to attempt to apply Section 14 Limitation Act to the cases before us for two reasons.
Firstly, there has to be a period of time, shown to have elapsed since the expiry of the period of limita tion, which could be excluded under section 14.
If the cause of action does not accrue at all there is no point of time from which any period of limitation could run.
Hence, if no cause of action could accrue at all unless and until the date of actual death of Kishan Singh is established, there could be no commencement of a period of limitation.
If that be the correct position, where is the question of excluding any time in computing it ? The only possible point from which limitation could start running here is the date on which seven years expired from the date on which Kishan Singh was last heard of.
This was within three years before filing of the suits as pointed out above.
Secondly, Section 14 provides that the time to be excluded spent in proceed ings prosecuted in good faith must relate to "the same matter" as is "in issue" in the subsequent proceeding.
It seems to me that the issue in the earlier litigation was whether Kishan Singh was actually shown to have died on a particular date.
This was quite different from the issue decided in the cases now before us.
This is whether Kishan Singh 's whereabouts had remained unknown for seven years so that he could be presumed to be dead.
I, therefore, rest my judgment solely on the ground that, the causes of action in the previous litigation and the litigation now before us being different, and the subsequent cause of action having arisen within three years before the filing of the suits before us, the suits were not barred by limitation.
The Division Bench of the Punjab High Court had proceeded on the obviously erroneous assumption that the learned Single Judge had decided the appeals only by giving the appellants the benefit of Section 14, sub.
s (1) of the Limitation Act.
It had overlooked completely the very first ground of deci sion of the learned Single Judge and also the condition imposed by the learned Judge on the application of Section 14 by.
using the words: "if found necessary".
The learned Judge had held: 281 "Admittedly,.
the whereabouts of Kishan Singh are still not known and, in my opinion, there can be no escape from the conclusion on these facts that the death of Kishan Singh must be presumed under Section 108 of the Indian Evidence Act as he had not been heard of for a period of seven years.
The present suits were brought between 21st of October, 1952 and 5th of May, 1953.
The correct ap proach to reach a solution of the present problem is to give allowance to the plain tiffs, if found necessary.
for the period which they spent in previous litigation that is to say, from the years 1945 to 1951".
The Division Bench had thus completely ignored the effect of the finding of a new cause of action arising within three years before the filing of the plaintiffs suits.
In my opinion, this finding of the learned Single Judge was enough to dispose of these appeals.
And, as I have pointed out above, question of either a time bar or its removal by resorting to Section 14(1) Limitation Act postu lates that a point of time from which lirai, ration can run has been ascertained.
As that point, on the findings of every Court, including this Court, could not be the date of Kishan Singh 's death, which is unknown, the suits could not possibly be dismissed on that ground.
They could con ceivably be dismissed on the finding that the date of death of Kishan Singh, being an indispensable part of the cause of action, the plaints do not disclose a cause of action at all, and, therefore, should have been rejected.
But, the defendants have not taken any such plea directly.
Nor was this argued on heir behalf.
For the reasons given above, I regret to have to re spectfully differ from the view adopted by my learned broth er Jaswant Singh.
I am unable to accept an interpretation of the relevant provision prescribing limitation which would confine the accrual of a cause of action only to cases of direct proof of death, on a particular date.
Such a view implies that suits based on a presumption of death are devoid a cause of action which could support a suit by a reversioner.
I do not think that the provision we have to interpret was meant to define or restrict a right of suit or a cause of action in this fashion at all.
The object of a "statute of repose" is only to extinguish rights of the indolent but not to demolish the causes of action of those who have not been shewn lacking in vigilance in any way whatsoever.
Consequently, I would allow these appeals, set aside the judgment and decrees of the Division Bench of the High Court and restore those of the learned Single Judge and leave parties to bear their own costs throughout.
P.B.R. Appeals dis missed.
|
The appellants filed three suits (the earliest of the three suits was filed on December 18, 1945) for possession of lands claiming that K, the last owner of the lands died on August 15, 1945.
Those suits were dismissed on August 3, 1951, as premature on the ground that the fact of the death of K had not been established.
The appellants again instituted three suits in October 1952, December 1952 and May 1953 for the same relief as in the previous suits alleging that the right to sue had ac crued after August 16, 1952, that is, after a period of seven years, under section 108 of Evidence Act; that K died three years before the date.
of the filing of the suits; and that they were within time under article 2(b) of the.
Schedule annexed to the Punjab Limitation (Customs) Act, 1920 which provides that the period of limitation for a suit for pos session of ancestral immovable property which has been alienated, is three years, if a declatory decree has been obtained, and that period commences from the date on which the right to sue accrues.
On appeal, a single Judge of the High Court decreed the suits holding that K having been treated as alive by the High Court when it passed the previous decree in 1951, the conclusion of the lower courts that he had been dead for seven.
years before the institution of the suits could not be sustained and also excluded the time spent on the previ ous litigation from 1945 to 1951 under section 14(1) of the Limitation Act.
On Letters Patent appeal, the Division Bench held: (1) that the single Judge was in error in ex cluding the time spent on the previous litigation by apply ing section 14(1) of the Limitation Act; (ii) that the words "or other cause of a like nature" occurring in section 14(1) had to be read ejusdem generis with the preceding words "relating to the defects of jurisdiction" and that it was not possible to give the benefit of that provision to the plaintiffs.
Dismissing the appeal to this Court (per A.N. Ray, C.J. and Jaswant Singh, J) HELD: (1) Under article 2(b) of the Schedule to the Punjab Limitation (Customs) Act, 1920 in order to be able to succeed the plaintiffs must bring their suits within three years of the accrual of the right to sue (which ac cording to well settled judicial opinion means the accrual of the right to seek relief), namely within three years of the death of K.
They had to prove affirmatively that the death of K took place within three years of the institution of the suits.
Granting that K has to be presumed to be dead, it cannot be overlooked that under section 108 of the Evidence Act, the precise time of the death is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within seven years lies upon the person who claims the right for the establishment of which the proof of that fact is essential.
The plaintiffs had not only, therefore, to prove that K had not been heard of for a period of seven years and was to be taken to be dead, but it also lay heavily on them to prove the particular point of time within seven years when K 's death occurred.
This they have failed to prove.
In the absence of such proof, it cannot be held that the present suits had not been brought within three years of the accrual of the right to sue.
[263 D G] 251 Nepean vs Doe D. Knight ; ; , Jayawant Jivarao Deshpande vs Ramachandra Narayan Joshi (A.1.R. 1916 Born.
300), Lalchand Marwari vs Ramrup.
Gir (LIII I.A.24; A.I.R. 1926 P.C. 9), Jiwan Singh vs Kuar Reoti Singh & Anr.
(A.I.R. 1930 All. 427), Kottappalli Venkates warla vs Kottapalli Bapayya & Ors.
(A.I.R. 1957 A.P. 380), Punjab and Ors.
vs Natha & Ors.
(A.I.R. and Ram Kali & Ors.
vs Narain Singh (A.I.R. 1934 Oudh 298 F.B.) referred to.
(2) If K had died beyond three years, from the date of the suits, the suits would be barred by limitation because the appellants cannot claim the benefit of section 14 of the Limitation Act 1908.
The three important requirements of the section are: (1) that the plaintiff must have prosecuted the earlier civil proceeding with due diligence; (2) the former proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it and (3) the earlier proceeding and the later proceeding must be based on the same cause of action.
[265 D] (3) The contention that the appeals had been rendered untenable as a result of the amendment made to section 7 of the Punjab Customs Power to Contest) Act 1920 by the Amending Act 12 of 1973 has no force and must be rejected.
Section 4 of the Act provides that the Act shall not affect any right to contest any alienation or appointment of an heir made before the Act came into force.
This section has been left untouched by the Amending Act of 1973.
In the instant case, the alienation was made before the 1920 Act came into force and was not affected by that Act.
[261 F H] (4) The words "or other cause of a like nature" in section 14(1) take their colour from the preceding words "defect of jurisdiction" according to the rule of ejusdem generis.
Therefore, the defect must be of a character analogous to jurisdiction barring the Court from entertaining the previ ous suit.
In the instant case, the Court which tried and dismissed the previous suits as premature did not suffer from inability or incapacity to entertain the suits on the ground of lack of jurisdiction or any other ground analogous to the defect of jurisdiction.
The exclusion of the period during which the previous suits were pending, could not, therefore, be allowed to the plaintiffs while computing the period of limitation.
[265 E; I 1; 266 A] Bhai lai Kishan Singh vs People Bank of Northern India, I.L.R. , Dwarkanath Chakravarti vs Atul Chan dra Chakravarti (I.L.R. and Palla Pattabhira mayya & Ors.
vs Velga Narayana Rao (A.I.R. referred to.
[Obiter: The causes of action in the previous suits and in the present suits are also different.
And hence the appellants cannot press section 14 into service.] Beg, .J. (Dissenting) The Division Bench of the High Court was wrong in ignor ing the effect of the finding of the single Judge that a new cause of action had arisen within three years before the filing of the plaintiffs ' suits.
[281 C] The question of time bar or its removal by resorting to section 14(1) of Limitation Act postulates that a point of time from which limitation could run had been ascertained.
As that point could not be the date of the death of K, which was unknown the suits could not be dismisses on that ground.
[281 D] (1) The single Judge had sufficiently indicated that the cause of action in the previous litigation was different from the one in the later inasmuch as the facts proved in the later case showing that K must be presumed to be dead could not be and were not set up in the earlier suits.
The cause of action had not accrued in 1945.
The effect of the judgment in the former suits was that these suits were premature, which is not the case in the suits in appeal.
The plaints in the later cases set out the case founded on new facts not in existence at the time of the earlier liti gation and expressly stated why the plaintiffs rely on the presumption of death of K.
If the previous suits were dismissed on the ground that they were premature, the cause of action could only, be said to have accrued after their institution.
[268 G; 269 C] 252 The findings of the single Judge showed that the.
plain tiffs were entitled to the benefit of the presumption laid down by section 108 of the Evidence Act.
He found that till August 3, 1951 when the judgment of the High Court in the previous suits was delivered, the position was that the death of K had not been established.
This meant that on new facts asserted and proved, K could be presumed dead when the subsequent suits were instituted in 1952 and 1953.
This presumption of death having become available to the plain tiffs within.
three years of the suits and not before, no occasion for applying section 14 of the Limitation Act could arise.
The evidence sought to be given in the previous suits was that K had died on a particular date but the evidence in the subsequent suit was not that he had died on a particular date but that he had not been heard of from August 5, 1945 upto the time of filing of the subsequent suits.
[269 H; 270 H] Modi Khalil Khan vs Mahboob Ali Mian, A.I.R. 1949 PC 78 at 86 referred to.
(2) (a) If causes of action differ from suit to suit, the accrual of the cause of action can also not be tied down to a particular kind of fact such as the date of actual death of the holder of the property.
Once it is held that the causes of action differ for purposes of their accrual, their accrual could not be made to depend on facts of one type only.
Facts denoting their accrual must differ from case to case.
Proof of date of actual death is conclusive.
But, where the basis of the right to sue is presumption of death, the. date; of accrual of the right is the date on which that presumption matures.
[271 C] Indian Electric Works Ltd. vs James Montosh & ,Anr. ; followed.
Rante Surno Moyee vs Shooshee Mokhee Burmonia & Ors.
12 Moore 's I.A. 244, State of Madras
V.P. Agencies & Anr.
AIR 1960 SC 1309 at 1310 and Mst.
Chand Kour vs Partap Singh, , referred to.
(b) The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circum stances which constitute either the infringement or the basis of a right and no more.
In a wider and more compre hensive sense it has been used to denote the whole bundle of material facts which a plaintiff must prove in order to succeed.
These are all those essential facts without the proof of which the plaintiff must fail in his suit.
[272 G] (c) Applying these tests, in the instant case, the causes of action in the earlier and later litigations would be materially different.
No cause of action had arisen at all if it is assumed that K had not died at all.
K 's death was an essential part of the cause of action.
It had to be proved to enable the plaintiffs to put forward their claims to succeed.
But proof of the date of death was not essen tial or indispensable for that purpose.
It could only become material in deciding whether the right accrued had been extinguished by the law of limitation.
Both the narrow and wider sense of the term "cause of action ' would include all those facts and circumstances on the strength of which the plaintiffs urged that they were entitled to the benefit of the obligatory presumption of law contained in section 108 of the Evidence Act.
As these were not available to the plain tiffs before the expiry of seven years from August 5, 1945, it was not possible to urge that this cause of action had arisen more than three years before the filing of the suits.
Therefore, the date of its accrual could not lie a day earlier than seven years after August 5, 1945 when K was last heard of.
[272 G H; 273 A B] (d) It was for the defendants to establish that K was either alive or had died more than three years before the suits were filed.
The presumption under section 107 of the Evidence Act could not come to the aid of the defendants when the plaintiffs had established facts necessary to raise the presumption under section 108 of the Evidence Act.
[273 E] (e) The suits are not barred by limitation.
The plaintiffs discharged their burden as to when the accrual of their cause of action was within the prescribed period of limita tion.
If the "media" upon which the plaintiffs rest their cases 253 are different in the previous and subsequent litigations, the causes of action are different.
If the alleged date of death of K was the date of accrual of the previous cause of action, the date of accrual of the second could only be something other than the date of death of K, it could not possibly be the same.
The other date of accrual could only be subsequent to August 5, 1945 because it was held in the previous suit that the suit was premature on the ground that seven years since K was last heard of had not elapsed then.
Since the evidence was that he was last heard of on August 5, 1945, the only possible date of accrual of the subsequent cause of action could be seven years after the date.
The suits were filed within three years of that date.
[273 H; 274 A C] (3)(a) The term 'right to sue ' occurring in article 2 of Schedule to the Punjab Limitation (Customs) Act 1 of 1920 must be equated with cause of action.
" The "date of death" cannot be substituted for the date of accrual of the "right to use".
In the Limitation Act the accrual when intended to be tied to the date of some event is specified as the date of that event.
In this case, it is not so.
It cannot be held that the date of accrual in both sets of suits is one and the same, that is to say, the actual date.
of death.
[274 D] (b) Wherever the accrual of a right or commencement of a period of limitation, within which a suit must be shown by the plaintiffs to have been brought, could only be estab lished by proving the date of a person 's death, that duty must be discharged by the plaintiffs or the suit will fail.
But to carry the doctrine beyond that and to lay down that the date of death must invariably be proved, whenever the question of limitation is raised in such cases must result in stultifying or defeating legal right and wiping out the effects of a statutory presumption.
The accrual of a cause of action based on untraceability of the owner could not be said to depend at all on proof of either actual death or the date of actual death of the owner.
It accrues as soon as death can be presumed and not a day earlier.
[278 D F] (c) It is not in every suit for possession that the com mencement of the date of dispossession must be established by the plaintiffs.
It is only in a suit for possession based on the allegation by the plaintiff of his own dispos session that the burden is governed by Art, 142 of the Limi tation Act.
[274 G] (d) In the instant ease, the plaintiffs were never in pos session and, therefore,there was no question of their dis possession.
It was a pure and simple suit for possession on the basis of title against which the defendants had not even alleged adverse possession.
Therefore, there is no need to bring in the actual date of death constructively, as the date of the presumed dispossession or adverse possession has not been asserted anywhere.
[275 B] (e) The plaintiffs have asserted and proved that the period of seven years when K was last heard of by those who would in the natural course of events have heard of or about him if he was alive, had elapsed and that their cause of action matured within three years of their suits.
Assuming that the concept of adverse possession of the defendants was to be introduced, the legal position is that possession of defendants could not be adverse to K 's reversioners even before K could be presumed to be dead.
The defendants them selves had set up.
the plea that he must be still deemed to be alive.
The plaintiffs could only be required to prove K 's death but not the date of his death or the date of the plaintiffs ' dispossession.
Neither cases dealing with recov ery of possession on the plaintiffs ' allegation of their own dispossession nor those where proof of date of death was a necessary statutory duty for showing that the suit was within time; are applicable in these cases.
[275 E F] Nepean vs Doe D. Knight (English Reports 150 Exchequer p. 1021), Jayawant Jivanrao Deshpande vs Ramachandra Narayan Joshi, AIR 1916 Bom.
300 & 301.
, Lal Chand Marwari vs Mahant Ramrup Git & Anr.
AIR 1926 PC 9, Jiwan Singh vs Kuar Reoti Singh & Anr.
AIR 1930 All.
427, Kottapalli Venkateswarlu vs Kottapalli Bapayya & Ors.
AIR 1957 AP 380 Punjab v Natha AIR 1931 Lab.
582 (FB) & Ram Kali & Ors vs Naraian Singh AIR 1934 Oudh 298 & 299 300, refrered to.
254 (f) It is neither a part of the case of any plaintiff in these cases nor necessary for the success of his case to prove that K died on a particular date or that K died before or after somebody else.
The plaintiffs cannot be saddled with the responsibility to prove this date.
[279 ,B] (4) The suits were not barred by limitation because the causes of action in the previous litigation and the litiga tion now are different and the subsequent cause of action has arisen within three years before the filing of the suits.
Assuming that the suits were filed beyond the period of limitation on the actual basis of their claims the plaintiffs are entitled to succeed because this is a fit case in which section 14(1) Limitation Act could come to the aid of the appellants.
They had been asserting repeatedly that the basis of their claim was that although the actual date of death of K could not be proved, yet, he has not been heard of for seven years.
That basis having emerged within three years before the filing of the suits, their suits could not be barred by time.
If the causes of action did not arise no question of its exceeding by the law of limitation, could emerge.
[280 G] The previous suits did not fail for want of jurisdic tion.
The delay in bringing the present suits was due to the fact that no court could decree the claim before the cause of action matured.
Therefore, the cause of action of a "like nature" to a defect of jurisdiction is present in these cases, since the provision has to be liberally con strued.
The defect revealed by the evidence in the latter litigation was that the suits did not lie at all as they were premature.
This was a defect reasonably comparable to a want of jurisdiction.
[280 A C] India Electric Works Ltd. vs James Mantosh & Anr. ; , followed.
(5)(a) If no cause of action could accrue at all unless and until the date of actual death of K was established, there could be no commencement of a period of limitation.
The only possible point from which limitation could start framing in these, cases is the date on which seven years expired from the date on which K was last heard of.
This was within three years before filing of the suits.
[280 D] (b) The issue in the earlier litigation was whether K was actually shown to have died on a particular date.
This was quite different from the issue decided now, which was whether K 's whereabouts had remained unknown for seven years so that he could be presumed to be dead.
[280 F] ARGUMENTS For the appeliants: The legal presumption under Section 108 was not sought to be raised in the prior suits.
It was for the first time raised in the subsequent group of suits instituted in Octo ber, 1952 based on the allegation that Kishan Singh was not heard of since 15th August, 1945.
This submission opens the questions (i) when is the presumption of death to be raised and (ii) whether for the purpose of proceedings in which it is raised or any prior proceedings.
The presumption is to be raised in the pro ceedings where the question has been raised i.e. the second group of suit.
However, there is no presumption as to the time of death of the person whose death is accepted as a result of presumption.
The two are distinct matters (i) the legal presumption of death and (ii) the time of death preceding the period when presumption is drawn.
The death may be at any time during the preceding period of 7 years the period that has enabled the court to draw presumption of death.
The law requires that if one has to establish the pre cise period during these 7 years at which such person died he must do so by evidence.
255 The conclusion of the court of presumption of death based upon disappear ance from 15th August, 1945 cannot be ignored.
Death at any time on or after 15th August, 1945 does not in any manner adversely affect the case of the appellants, inasmuch as the parties had instituted suits (of course premature) on 18th December 1945 (other suits some time later decided by a common judgment).
If the parties are held entitled to the benefit of deduction of time from 18th December 1945 to 3rd August, 1951, the death of Kishan Singh even if it took place between 15th August, 1945 to any date before 3rd August, 1951 the suit are not barred by limita tion.
On the pleading of the parties it cannot be assumed that the presumption of death would justify acceptance of date of death, any time prior to 15th August, 1945.
The period of limitation for the suit for possession was 3 years The defendants had not pleaded in the prior suit that the suit was.
barred by limitation as instituted.
In other words it was not alleged that he had died at any time 3 years prior to the institution of the suit (18th December, 1945).
Actually death has not been admitted even on 15th August, 1945.
The trial Court and the District Judge held the suit to be time barred not on the ground that his death had taken place at a period exceeding 3 years from the date of the institution of the first suit.
They have apparently not ignored the possibility of death having taken place during the period between 18th December, 1945 to 3rd August., 1951.
They have held the. suit to be time barred because it was considered that the appellants are not entitled to deduct the stated period spent in the prior suits.
Even if it is considered that death had taken place during this period or any time after 15th August, 1945 or during the 3rd August to 31st October, 1952 the suits are not time barred.
Preliminary objection was raised by the respondents as to the effect of the Punjab Customs (Power to Contest) Amendment Act, 1973 (Punjab Act 12 of 1973).
It was urged that the Act had come into force on 23rd January, 1973, it has retrospective operation and bars all suits to contest alienation also including the suits for possession of the property following a declaratory decree.
It was urged that the appeals are barred as a consequence of repeal of the provisions of Punjab Act II of 1920.
The contention as to the effect of Act 12 of 1973 is not correct.
The previous law on the subject of right to contest alienation of immovable property and the limitation of suits relating to alienation of ancestral immovable property is regulated by two Acts.
(1) Punjab Act II of 1920 Described an Act to restrict the powers of the descendents or collaterals to contest an alienation of immovable property; and (2) Punjab Act I of 1920 Described as an Act to amend and consolidicate the law govern ing the limitation of suits relating to alien ations of ancestral immovable property etc.
The present Act 12 of 1973 repeals section 6 of Act II of 1920.
It also amends section 7 of the aforesaid Act.
Effect of the repeal of section 6 and amendment of section 7 merely is that the right to.
contest vesting in the collaterals upto 5th degree has been done away with and the suit to contest alienation of ancestral property has been taken away.
Under the previous existing law an alienation of non ances tral property could not be contested.
Act I of 1920 has also not been repealed.
The limitation provided for a suit for possession i.e. 3 years is still an existing provision of the Act.
It is obvious that the legislature has retained 256 Act I of 1920 unrepealed so that the benefit of the decrees may be available to all persons under section 8 of the Act and the period of limitation may be retained as before.
The effect of the declaratory decree in that the alienation is not binding against the inheritance.
The succession never remains in abeyance.
A person entitled to succeed to the last male holder is entitled to sue for possession on the basis of right to succession to the property.
For the respondent: The principle of res judicata would be immediately attracted if the plaintiffs allege the "same cause of ac tion" and seek the exclusion of the time because the earlier suit was tried on merits by a competent court having jurisdiction and was dismissed holding that 'plaintiff failed to prove that Kishan Singh died on 15th August, 1945.
This finding would be binding between the parties in the subsequent suits as they have been given after recording the evidence and a full trial by, the competent court having jurisdiction.
Therefore, the plaintiff is barred by principles of res judicata from alleging the accrual of right to sue before the filing of the earlier suits as the same would be res judicata.
The plaintiff is estopped from alleging the accrual of same cause of action, therefore, no question of exclusion of time inasmuch as the principle of section 14 of exclusion of time arises only if the cause of action is the same.
Section 14 uses the words "the proceeding is founded upon the same cause of action".
The language of section 14 of the Limitation Act by using the words "same cause of action" makes it very clear that time can be excluded for the same cause of action only if the earlier suit is dismissed be cause of defect of jurisdiction or other cause of a like nature.
On the interpretation of section 14 also the time cannot be excluded for the reason that the earlier suit was dis missed as premature and the new suit was filed on a new cause of action, namely, Alla Singh and his line became extinct on the death of Kishan Singh on 15th of August, 1952 i.e. after the expiry of ' seven years from 15th August, 1945.
Since a new cause of action was alleged after the dismissal of previous suit, section 14 cannot be attracted.
The words "is unable to entertain it" mean that it is not able to admit the matter for consideration on merits i.e. the.
inability is of a formal nature but it does not mean inability to grant relief.
From the decisions one principle is deducible that section 14 of the Limitation Act has to be construed harmoniously with section 11 C.P.C. Section 11 C.P.C. bars the filing of a fresh suit on the same cause of action whereas section 14 of Limitation Act allows time to be.
excluded in the previous litiga tions was "founded on the same cause of action ' '.
Section 12 says that if plaintiff is barred under section 11 C.P.C. to file suit for any cause of action then plaintiff cannot file suit for a such cause of action in any court to which C.P.C. applies.
If both.
section 14 of Limitation Act and principles of res judicata are to operate then, it should be held that to apply section 14 the earlier suit had been dismissed on a technical ground of jurisdiction, or other cause of a similar nature, court is unable to entertain it without going into the merits of the case.
In the present case earlier suits were dismissed because the plaintiff failed to prove the death of Kishan Singh and the extinction of line of Alia.
The words used by the High Court at page 302 line 37 are: "The suit had been rightly dismissed as premature" do not mean that Kishan Singh was alive but it means that plaintiffs have not proved the accrual oj cause of action namely the extinction of line of Alia.
In these circumstances it is submitted that the suits were not dis missed on the ground of defect of jurisdiction or other cause of similar nature.
for which the court was unable to entertain it.
Section 14 of the Limitation Act does not apply.
Plaintiffs have failed to prove the date of death of Kishan Singh and the extinction of line of Alla within 3 years of the filing of the suit.
Suits are therefore time barred.
257 Sections 107 and 108 of the Evidence Act do not help the appellants.
Rule of evidence in section 107 is that it is for the plaintiff to prove the death of a person if he was alive within 30 years and section 108 says that burden of proving that a man was ,dive is on the person who alleges he is alive if it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had even alive.
In this case the plaintiffs appellants have alleged that Kishan Singh was last heard of on 15th August, 1915 and singe then he is not heard of.
The onus is, there fore, on the plaintiff appellant under section 107 of Evidence Act 10 prove as to when Kishan Singh died.
It is; Submit ted that Kishan Singh may have died on any date either before 15th August, 1945 or immediately theereafter.
There is no presumption that he died on the expiry of 7 years from the date he was last heard.
The date of death is thus required to prove by the plaintiff like any other fact.
The suits are, therefore, barred by time and should be dismissed plaintiffs ' failure to prove death of Kishan Singh within three years of the filing of suits.
|
Appeal No. 1453 of 1966.
Appeal from the judgment and decree dated September.
14, 1965 of the Madras High Court in Second Appeal No. 1394 of 1963.
A. K. Sen, R.M. Mehta and J.B. Dadachanji, for.
the appellant.
R. Gopalakrishnan, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by certificate granted by the High Court of Madras is directed against its judgment and decree modifying the decree passed by the District Judge.
The relevant facts for the determination of the points raised before us are as follows: The plaintiff, K '.
M. Viswanatha pillai, appellant before us and hereinafter referred to as the plaintiff, and K.M. Shanmugham Pillai, respondent before us and hereinafter referred to as the defendant, were originally members of a Joint Hindu Family.
On June 29, 1953, the six brothers who constituted the Joint Hindu Family entered into a partition of the properties belonging to the Joint Family, evidenced by a registered document exhibit A 35.
A motor bus MDH 662 fell to the share of the plaintiff.
At the time of partition the permit was not in the name of the defendant and some proceedings for the transfer of the permit to his name were pending.
Accordingly it was provided in the partition deed as follows: "As soon as its route permit and registration etc. are transferred in the name of Shanmugam Pillai, he shall have the same transferred in the name of the 4th individual of us, Viswanatha Pillai." In September 1953, the permit was transferred in the name of the defendant.
In April 1954, the plaintiff purchased two more vehicles, namely, MDO 1106 and MDH 730, but the permits were obtained in the name of the defendant in whose name the vehicles were also actually acquired.
As the defendant was going to Kuala Lumpur on business he executed a general power of attorney, exhibit A 55, in favour of the plaintiff.
In this power of attorney the defendant admitted that the three buses above mentioned belonged to the plaintiff and were plying in his name as requested by the plaintiff.
Two more buses seem to have been acquired since then.
The plaintiff 's case in brief was that the defendant was carrying on business on his behalf as a benamidar.
He accordingly prayed for a declaration that the five buses alongwith the stage 898 carriage permits belonged to him and that he was entitled to run the same in terms of the power of attorney which was irrevocable.
The defendant had joined with the plaintiff earlier in filing a joint application for transfer of permits before the Regional Transport Authority.
The defendant, however, withdrew his consent and the application was rejected.
The plaintiff, accordingly, seeks a mandatory injunction directing the defendant to execute necessary documents required to effectuate the transfer of the permits.
The suit was decreed entirely by the Trial Court, but the District Judge confirmed the decree only with reference to four of the buses.
With reference to Bus No. MDU 4069 the decree was set aside.
The High Court held that "the plaintiff and the defendant practiced a fraud upon the authorities, conjointly, in contravention of the express provision of the .
The benamidar of the vehicles, representing himself to be the owner, falsely obtained the permits in his name, and allowed the true owner, who had no permit, to conduct the actual business; there cannot be a more flagrant violation of the basic requirements of the Act, or of its scheme.
" The High Court, accordingly, felt that they could not possibly grant mandatory injunction compelling 'the defendant to co operate in any further application for transfer, since that would, in effect, give recognition to the fraudulent contrivance and effectuate rights on the very basis of that contrivance.
The High Court also agreed with the District Judge that the plaintiff could not get a declaration as far as bus No. MDU 4069 was concerned.
The learned counsel for the appellant, Mr. A.K. Sen urges 'before us that no provision of the (IV of 1939) hereinafter referred to as the Act has been contravened and that it is not necessary under the Act that a permit should be obtained only by the real owner of the bus.
The relevant statutory provisions may now be noticed, and they 'are as follows: "The Section 2.
(3) "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab 899 notwithstanding that the passengers may pay Separate fares." (19) "owner" means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which.
is the subject of a hire purchase agreement, the person in possession of the vehicle under that agreement.
" (20) "permit" means the document issued by the commission or a State.
or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage, or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle." (22) "private carrier" means an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub section (2) of section 42.
(23) "public carrier" means an owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise, and includes any person, body, association or company engaged in the business of carrying the goods of persons associated with that person, body, association or company for the purpose of having their goods transported." Section 42(1) on which the High Court has relied reads thus: "42(1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the.
conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used; . " This section does not, in our view, on the language require that the owner himself should obtain the permit; it only requires the owner that the transport vehicle shall not be used except in accordance with the conditions of the permit.
The High Court would add the words "to him" after the words "permit granted", 900 but, in our view, there is no justification for inserting those words.
The definition of the "permit" itself shows that all permits need not be in the name of the ,owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owner 's name.
The same inference follows from the definitions of "private carrier" and "public carrier".
This Court came to the same conclusion in Veerappa Pillai vs Raman & Raman(1).
Some reliance was placed on the amendments made in section 60( 1 ) (c).
The, section as ' amended reads :, "60 (1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit (c) if the holder of the permit ceases to (own)(2) the vehicle or vehicles covered by the permit," .
There has been a conflict of opinion between the different High Courts as to the inference following that amendment.
It seems to us that the High Court of Allahabad in Khalil ul Rahman Khan vs State Transport Appellate Tribunal(3) rightly gives the effect of the amendment.
Srivastava, J., observed: "A reference was, however, made to cl.
(c) of sub section (1) of Section 60 of the Act and on the basis of that clause it was urged that it assumed that the permit holder should be the owner of the vehicle.
That clause provides for one of the contingencies in which a permit can be cancelled.
According to it, it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit.
It is only a permissive clause and the Transport Authority has only been given a discretion to cancel the permit in that contingency.
It may or may not cancel it, even if the holder of the permit ceases to own the vehicle covered by it.
But it is by no means necessary that el.
(c) should be applicable to the case of every permit holder.
There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle.
This clause appears to apply only to t he former case and not to the latter.
On its basis, therefore, it cannot be held to be a requirement of the (1) ; (2) Substituted by section 54 of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956) for "possess" (w.e.f. 16 2 1957).
A.I.R. 1963 All. 383, 388.
901 Act that in each case the person in whose favour a permit has been issued should necessarily be the owner of the vehicle covered by it.
" We agree with these observations.
The contrary view held in Varadarajulu Naidu vs Thavasi Nadar(x) that section 42(1 ) contemplates that only an owner will have a permit is erroneous.
The decision of the Andhra High Court in Chavali Venkataswami vs Chavali Kotayya(2) that section 60(1)(c) of the Act envisages the grant of a permit to the owner alone must also.
be dissented from.
The learned counsel for the respondent says that at any rate the Act does not contemplate persons applying for permits benami.
In India benami transactions are recognised and not frowned upon.
(see Gut Narayan vs Sheolal Singh)(a).
In C.I.T. Gujarat vs Abdul Rahim & Co. (4) it was held by this Court that the registration of the partnership deed under section 26A of the Indian Income Tax Act, 1922, could not be refused on the ground that K was the benamidar of V. We see nothing in the Act which expressly or by implication bars benami transactions or persons owning buses benami and applying for permits on that basis.
In the result the appeal is allowed, the decree of the High Court set aside and the decree passed by the District Judge restored.
We may mention that Mr. Sen did not press the claim regarding the fifth bus, MDU 4069.
The appellant will have half costs in this Court.
The parties.
will bear their own costs in the High Court.
Appeal allowed.
|
The appellant was the owner of 5 buses.
The Vehicles stood in the name of the respondent, appellant 's benamidar, and the stage carriage permits were also obtained in the respondent 's name.
The appellant, who was running the buses, flied a suit claiming the buses along with their permits.
It was decreed by the trial court, and the lower appellate court confirmed the decree in respect of 4 buses.
The High Court, in further appeal, held that the appellant and the respondent together practised fraud in contravention of as.
41(1) and 60(1)(c) of the in as much as the respondent representing himself to be the owner falsely obtained the permits in his own name, and allowed the true owner, who had no permit to conduct the actual business and dismissed the suit in toto.
In appeal this Court, HELD: There is nothing in the , which expressly or by implication bars benami transactions or persons owning buses benami and applying for permits on that basis.
Section 42(1) does not require that the owner himself should obtain the permit; it only requires the owner to see that the transport vehicles shall not be used except in accordance with the conditions of the permit.
The definition of 'permit ' itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private earner or a public carrier that a permit has to be in the owner 's name.
The same inference follows from the definitions of 'private carrier ' and 'public carrier '.
[899 H] The amended section 60(1)(c) provides for one of the contingencies in which permit can be cancelled.
According to it, it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit.
It is only a permissive clause and the Transport Authority has only been g/yen a discretion to cancel the permit in that contingency.
It may or may not cancel it, even if the holder of the permit ceased to own the vehicles covered by it.
But it is by no means necessary that cl.
(c) should be applicable to the case of every permit holder.
There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle.
This clause appears to apply only to the former case and not to the latter.
[900] Veerappa Pillai vs Raman & Raman, ; , followed.
Khallil ul Rahman Khan vs State Transport Appellate Tribunal, A.I.R. 1963 All. 383, Gut Narayan vs Sheolaf Singh, and C.I.T. Gujarat vs Abdul Rahim & Co., , approved.
Varadarajulu Naidu vs Thavasi Nadar, (1963) 2 M.LJ. 20 and Chavali Venkataswami vs Chavali Kotayya, (1959) 2 and W.R. 407, disapproved.
|
: Criminal Appeal No. 98 of 1987.
From the Judgment and Order dated 9.10.1986 of the Punjab and Haryana High Court in Crl.
A. No. 437 of 1986.
A.N. Mulla and S.K. Sabharwal for the Appellants.
M.R. Sharma, R.S. Suri, H.S. Phoolta, Meera Agarwal and R.C. Mishra for the Respondent.
846 The Judgment of the Court was delivered by OZA, J.
This is an appeal on grant of special leave against the judgment of the High Court of Punjab and Haryana in Criminal Appeal No. 437/86 and Reference No. 4/86 wherein the learned Judgess of the High Court maintained the conviction and sentence passed against the appellants by the learned Additional Sessions Judge, Faridkot.
The conviction and sentences passed against the appellants are: CHARGES & SENTENCES: Darshan Singh u/s 302 IPC (for Sentenced to death and to the murder of pay a fine of Rs.200/ or Mukand Singh in default R.I. for three months.
Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life and alias Bagga (of Mukand Singh) to pay a fine of Rs.200/ Singh and or in default R.I. for Roop Singh three months each.
Darshan Singh u/s 302 IPC Sentenced to death and to (for the murder) pay a fine of Rs.200/ or of Harbans Kaur) in default to undergo R.I. for three months.
Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life alias Bagga of Harbans Kaur) and to pay a fine of Singh and Rs.200/ or in default Roop Singh R.I. for three months each Buggar Singh u/s 302 IPC Sentenced to death and to Bagga Singh (for the murder) pay a fine of Rs.200/ or of Pritam Kaur) in default to undergo for R.I. three months.
Darshan Singh, u/ss 302/34 IPC Sentenced to undergo Pala Singh and (for the murder) imprisonment for life and Roop Singh of Pritam Kaur) to pay a fine of Rs.200/ or in default to undergo R.I. for three months each.
847 Accused Pala Singh and Roop Singh are also convicted as mentioned above but they have not come up before this Court.
This appeal has been filed by Darshan Singh and Buggar Singh @ Bagga Singh, therefore we are concerned with their cases only.
The prosecution case at the trial was that on 24th June, 1985 at about 7.30 p.m. Dalip Singh, brother of Pritam Kaur, and his son Sarbjit Singh were present outside the house of Mukand Singh alongwith Gurnam Singh son of Babu Singh.
Mukand Singh was returning to his house.
At that time, Darshan Singh and Roop Singh accused armed with a Gandasa each, Pala Singh and Buggar Singh accused armed with Kapa each came on a tractor from the village side.
They stopped the tractor near Mukand Singh.
All the four accused got down from the tractor.
Pala Singh and Roop Singh accused caught hold of Mukand Singh deceased and threw him on the ground.
A blow on the neck of Mukand Singh was inflicted by Darshan Singh as a result of which the neck was chopped off except that it remained suspended with the body by skin.
Then Harbans Kaur, the daughter of Mukand Singh came out of the house and she was given three gandasa blows on her head by Darshan Singh.
It is thereafter that Pritam Kaur, the wife of Mukand Singh came out of the house and Bugger Singh gave kapa blows on her person.
As a result, all the three victims died on the spot.
Dalip Singh, Sarbjit Singh and Gurnam Singh who had witnessed the incident raised an alarm and also threw brick bats towards the assailants.
Thereupon all the appellants made good their escape.
It is significant that Mukand Singh had only one daughter Harbans Kaur and had no male issue.
The appellant Darshan Singh is the son of Pala Singh whereas Bugger Singh is said to be an agricultural labourer working with Pala Singh and Roop Singh also belonging to the group of appellant.
It is alleged by the prosecution that the two brothers had inherited some land from their father and there were disputes about it.
Apparently, Pala Singh and Darshan Singh by eradicating the family of his brother Mukand Singh removed one of the successors claiming half share in the property.
It was also alleged that as Mukand Singh had no male issue and Harbans Kaur was of marriageable age, it appears from evidence that negotiations for marriage were in the offing, Pala Singh apprehended the entrance of some stranger in the family as son in law of Mukand Singh to succeed to the property falling in the share of Mukand Singh.
848 Dalip Singh accompained with Gurnam Singh son of Babu Singh went immediately to the Police Station, Baghapurana and lodged the First Information Report exhibit PH which was recorded by Inspector Darshan Singh.
This report was recorded at 8.30 p.m. and it was alleged that the incident had taken place sometimes in the evening about 7.30 p.m.
Inspector Darshan Singh went on the spot, prepared the visual plan.
He also held inquest of the three dead bodies of Mukand Singh, Harbans Kaur and Pritam Kaur respectively and sent the dead bodies for autopsy.
He also took blood stained earth from the place where the bodies were found and recovered 20 brick bats from the spot.
The accused persons were searched and it is alleged that they were not traceable.
They, however, were arrested subsequently on 27th June, 1985 and 1st July, 1985.
After arrest, the Investigation officer interrogated Darshan Singh accused in the presence of Gurnam Singh son of Kartar Singh and Kalkiat Singh PW and he disclosed in his statement giving information where the gandasa is and on his information from the specified place, the gandasa was recovered.
After investigaton, a charge sheet was filed and on trial the appellants have been convicted and sentenced as mentioned above.
As it involved a sentence of death to the two appellants, apart from the appeal preferred by the appellants there was also a reference to the High Court and by the impugned judgment the High Court dismissed the appeal filed by the appellants and confirmed the sentence of death awarded by the learned trial court and it is against this judgment that the present appeal by Darshan Singh and Bugger Singh is before us.
Learned counsel appearing for the appellants mainly contended that the motive alleged that the appellants did not like the idea of a stranger inheriting the property and coming into the family after the marriage of Harbans Kaur appears to be not a very plaussible reason.
It was also contended that there is a will executed by Mukand Singh in favour of Sarbjit Singh son of Dalip Singh and therefore if the motive was to eliminate all possible successors to the half share of Mukand Singh the accused appellants would not have spared Sarbjit Singh.
So far as this contention of the learned counsel is concerned when he referred to the relevant evidence it is discovered that this will was filed by Sarbjit Singh after this incident in some civil proceedings when he claimed to be brought on record in place of Mukand Singh on the basis of the will.
This apparently could not indicate that this will in favour of Sarbjit Singh was in the knowledge of the appellants on the date of incident.
Learned counsel could not point out to any other material to 849 suggest that this will was known to the appellants on the date of incident and therefore this contention raised by the learned counsel for the appellant is without any substance.
Learned counsel also attempted to contend that Dalip Singh who is the brother of Pritam Kaur the wife of Mukand Singh has given an explanation for having come to the house of Mukand Singh but it does not appear to be justified.
As according to the witness, he is the maternal uncle of Harbans Kaur and there was some negotiations about her marriage and for that purpose he alongwith his son had come to the house of Mukand Singh.
It is apparent that a maternal uncle of the daughter (bride) is generally consulted when negotiations for marriage of the daughter are in progress and apart from it both the courts below had accepted the testimony of this witness which also is fully corroborated by the First Information Report lodged immediately after the incident.
In fact, in this case as the report is lodged immediately the contention advanced by the learned counsel for the appellants is not that there is delay but it was seriously contended that if the incident has taken place at 7.30 p.m. as mentioned in the First Information Report the report could not have been lodged at 8.30 p.m. within one hour as in the First Information Report itself the distance of the police station from the scene of occurrence is recorded as 121/2 kilometres and on this basis an argument was raised by learned counsel for the appellants that the report appears to have been prepared later on and a false time has been mentioned in the report.
Instances of this filed that no relevant evidence was brought on record and not a single question was put to any witness or to Dalip Singh who made the First Information Report that he had noted the time of incident after seeing the watch and this was recorded in the first information report as 7.30 p.m.
It is also clear that there is nothing in his evidence to indicate that he and Gurnam Singh who went to the police station walked on foot and covered a distance of 121/2 kilometres because it is not in their testimony as to whether they went through the normal route or they went across the fields by short cut nor there is anything in the evidence that they did not take a lift in any vehicles.
Learned counsel when confronted with this situation contended that the burden lay on the prosecution but it could not be disputed that if this was the contention of the defence that the report could not have been recorded at 8.30 p.m. if the incident was at 7.30 p.m. question to establish this should have been put in corss examination.
It is apparent that there is no material to indicate that the time of incident when noted was 7.30 p.m. it is precise time nor it is there in 850 evidence as to whether the persons who lodged the first information report walked through 12 1/2 kilometres.
In abssence of any material the only thing that appears is that immediately after the incident the report is recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses.
The courts below therefore on consideration of the testimony of the eye witnesses accepted their version and convicted the appellants as mentioned above.
Learned counsel could not from the evidence of the eye witnesses refer to any part of their evidence to indicate that the evidence is such on which reliance could not be placed except for the fact, according to the learned counsel, that there were disputes between the two parties i.e. the groups of the two brothers and all the prosecution witnesses apparently were belonging to the group of the deceased.
It was also contended that in the locality independent witnesses could be available but they have not been examined.
The Courts below have considered this aspect of the matter.
It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available.
Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence.
It is also significant that the testimony of the eye witnesses has been fully corroborated by the medical evidence and the injuries on the particular parts of the body of the three deceased persons.
In this view of the matter therefore learned counsel for the appellants mainly emphasised on the aspect of motive and the first information report.
It was also contended that appellant Bugger Singh had submitted an application somtimes before this incident in which he had made allegations against the police officers of the police station and in view of that the police officers must have been prejudiced against him.
The application for contempt against the police moved by Bugger Singh was also relied upon in support of the contention.
We do not find any substance in this contention too.
In the complaint made, it is apparent that none of the police officers in charge of the investigations of the present case has been referred to therein.
It was however, contended that the brotherhood of the uniform created a prejudice against the appellant Buggar Singh, and it is why he has been falsely implicated.
This appears to be too tall a proposition.
There is no material to indicate that there was any prejudice in the mind of the investigating officer.
The report of the incident was lodged immediately and in the 851 report the part played by the accused has been clearly stated.
Under these circumstances, therefore, merely because Buggar Singh chose to make some application and also mentioned the names of some police officers in it, it could not be held that all police officers will be interested in falsely implicating this appellant in a murder case.
There is no other material on the basis of which it could be contended that there was any prejudice against him.
The evidence of the eye witnesses have been considered by both the courts in detail and especially the Sessions Court before whom the witnesses were examined accepted their testimony and we have no reason to discard their testimony.
The names of the eye witnesses have been mentioned in the first information report, which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence.
No doubt could therefore be raised about the reliability of such evidence.
Learned counsel realising the situation ultimately contended that so far as Darshan Singh is concerned he could not make submissions about the sentence as he has done away with first Mukand Singh his uncle and then Harbans Kaur, Mukand Singh ' daughter i.e. her own cousin.
But he contended that so far as Buggar Singh is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him.
Pala Singh and Darshan Singh may have the interest of getting the property falling into the share of Mukand Singh but Buggar Singh has no such motive and therefore the sentence of death awarded to him does not appear to be justified.
The learned counsel appearing for the respondent State contended that the courts below have considered the question of sentence in a reasonable manner and those who are personally responsible for killing in such a brutal manner three persons one after another, have been sentenced to death and those who have been convicted with the aid of Section 34 have been treated leniently and sentence of life imprisonment alone is awarded.
In the light of the discussions above therefore so far as merits are concerned, there is no substance in the contention advanced by learned counsel for the appellants.
The conviction of the appellants could not be assailed on any ground.
The only question that remains to be considered is the question of sentence.
Learned counsel referred to the decision of this Court in Dalbir Singh & Ors.
vs State of Punjab, 852 ; wherein the plausible reasons which may weigh with a court while awarding a sentence of death have been enunciated.
So far as the present case is concerned we must consider the facts of the case.
It is clear and not disputed also that father of Mukand Singh and Pala Singh left behind some agricultural land.
It is not in dispute that the two brothers Pala Singh and Mukand Singh were the only heirs entitled to the share in the property of their father.
It is also not disputed that so far as Mukand Singh is concerned he had only one daughter Harbans Kaur and had no male issue.
It is also disputed that the property disputes have been going on.
There have been cases and complaints against each other.
It appears that Pala Singh and his son Darshan Singh were keen to grab that property and it is in pursuit of this motive that they attacked Mukand Singh and his family and killed all the members of the family, Mukand Singh, his wife Pritam Kaur and his only daughter Harbans Kaur and thereby eliminated everyone who could claim any share in the property.
The attack was brutal.
The medical evidence indicates that Mukand Singh 's neck was chopped off, repeated blows by Gandasa were inflicted on the body of Harbans Kaur.
Therefore it is clear that Darshan Singh first chopped off the neck of Mukand Singh and even after doing this he inflicted number of blows on Harbans Kaur a young girl, his own Uncle 's daughter and the repeated blows go to show that he inflicted injuries with determination that she may not escape.
In this view of the matter and the manner in which brutally these two were done to death, we see no reason to alter the sentence awarded to Darshan Singh.
So far as Buggar Singh is concerned it is no doubt true that he inflicted three blows on Pritam Kaur by Kapa which he was carrying.
So far as infliction of injuries are concerned it could be described as nothing but cruel but it is true that he had no motive.
He appears to have been dragged into the killing.
In our opinion, so far as he is concerned both the courts below were not right in awarding sentence of death.
Consequently the appeal is partly allowed.
The conviction of all the appellants is maintained.
The sentences of all the appellants except Buggar Singh are maintained and so far as Buggar Singh is concerned, sentence of death awarded to him is altered to a sentence of imprisonment for life.
G.N. Appeal allowed.
|
% Appellants Nos. 1 and 2 along with two other accused were convicted for the murder of the first Appellant 's paternal uncle, his wife and daughter.
First the brother, and then his daughter and wife were done to death with gandassa and kapa blows just outside their house.
The motive alleged was that the first appellant 's father and his deceased brother had inherited some land from their father and there were disputes about it, and by eliminating the family, one of the successors entitled to half share in the property had been removed.
It was also alleged that the deceased man had no male issue and had only one daughter for whom negotiations for marriage were in the offing and appellant No. 1 and his father apprehended the entry of a stranger in the family as the son in law to succeed to the property falling to the share of the deceased man.
The Trial Court convicted the appellants and sentenced them to death, while the other two accused were sentenced to life imprisonment.
Against the conviction and sentence, an appeal was filed.
There was also a reference to the High Court, as death sentence was involved in respect of the two appellants.
The High Court dismissed the appeal and confirmed the death sentence.
The appeal before this Court is filed by the two appellants who have been sentenced to death.
The motive alleged has been disputed on behalf of the appellants, as a will had been executed by the deceased man in favour of the son of his wife 's brother, and that if at all there was a motive he should have also been eliminated.
844 It was also contended that in the locality independent witnesses could be available and they have not been examined.
Another submission was that one of the witnesses had complained against the Police Officer and so the Police Officers were prejudiced against him.
The time at which the FIR had been registered has also been questioned.
In the absence of motive on the part of the second appellant, it was contended, that the death sentence awarded to him is not justified.
Allowing the appeal partly, this Court, ^ HELD: 1.
The will was filed after the murders, in some civil proceedings when the legatee claimed to be brought on record in place of the deceased man.
This apparently could not indicate that this will was in the knowledge of the appellants on the date of incident.
Therefore the motive cannot be doubted.
[848G H] 2.
One of the witnesses is the maternal uncle of the deceased girl and there were some negotiations for her marriage and for that purpose he along with his son had come to the house of the deceased.
It is apparent that a maternal uncle is generally consulted when negotiations for marriage of a girl are in progress and apart from it both the courts below had accepted the testimony of this witness which is fully corroborated by the First Information Report lodged immediately after the incident.
It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available.
Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence.
The names of the eye witnesses have been mentioned in the First Information Report, which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence.
No doubt could therefore be raised about the reliability of such evidence.
[849B C; 851C] 3.
No relevant evidence was brought on record and not a single question was put to any witness or to the person who made the First Information Report as to whether he had noted the correct time of the incident.
There is no material on record to show as to whether the persons who lodged the First Information Report, walked through 12 1/2 kilometres or took a lift in any vehicle.
In the absence of any material, the only thing that appears is that immediately after the incident the report was recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses.
[849F; 850A B] 845 4.
Merely because the second appellant chose to make some application and also mentioned the names of some police officers in it, it could not be said that all police officers would be interested in falsely implicating him in a murder case.
In the complaint made by appellant No. 2, none of the police officers in charge of the investigation of the present case has been referred to therein.
It was, however, contended that the brotherhood of the uniform created a prejudice against the second appellant and that is why he has been falsely implicated.
This appears to be too tall a proposition.
There is no material to indicate that there was any prejudice in the mind of the investigating officer.
The report of the incident was lodged immediately and in the report the part played by the accused has been clearly stated.
[851A B; 850G H] 5.1 It appears that first appellant and his father were keen to grab the property and it is in pursuit of this motive that they committed the triple murder.
The attack was brutal.
The medical evidence indicates that the deceased man 's neck was chopped off and repeated blows by Gandasa were inflicted on the body of his daughter.
Therefore, it is clear that the first appellant first chopped off the neck of his uncle and even after doing this he inflicted number of blows on the young girl, who was his own uncle 's daughter, and the repeated blows go to show that he inflicted the injuries with determination that she may not escape.
In this view of the matter and the brutal manner in which these two were done to death, there is no reason to alter the sentence awarded to the first appellant.
[852C E] 5.2 So far as the second appellant is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him.
He appears to have been dragged into the killing.
Therefore, the sentence of death awarded to the second appellant is altered to a sentence of imprisonment for life.
[852E F]
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Present : Mr. Munfaid Khan, Advocate for the petitioners.
The limited challenge to the order dated 23.09.2021 passed by
the Motor Accident Claims Tribunal, Palwal (hereinafter referred to as the
‘Tribunal’) is to the extent whereby the Tribunal has directed 50% of the
compensation awarded to be deposited in fixed deposits. The further
challenge is to the order dated 12.05.2022 dismissing the application filed by
the petitioners for release of the amount directed to be deposited in the
Learned counsel for the petitioners would contend that the
petitioners lost their son namely, Sakir, in a motor vehicle accident. The
Tribunal awarded a total amount of Rs.11,18,272/- along with interest @
7.5% per annum from the date of filing of the claim petition till its
realization. However, it was further directed that on realization of the
awarded amount together with the interest, the same shall be shared equally
by the claimants and 50% of the amount of the share of the claimants was
directed to be paid in cash to them whereas remaining 50% was directed to
be deposited in a FDR in a nationalized bank in their names for a period of
three years.
authenticity of this order/judgment
CR No.2270 of 2022 -2-
Learned counsel for the petitioners would contend that both the
petitioners are over 40 years of age and have three other children to look
after and hence the money is urgently required by them. In support of his
contention, he relies on judgment of the Hon’ble Supreme Court in H.S.
Ahammed Hussain vs. Irfan Ahammed, [2002(3) RCR (Civil) 563] to
contend that in the case of an adult it would not be appropriate to direct the
deposit of the amount of compensation in a fixed deposit.
I have heard learned counsel for the petitioners.
In the present case, the claimant-petitioners are the parents of
the deceased who are wanting the release of the amount which has been
awarded to them but 50% of the awarded amount has been directed to be
deposited in FDRs. It is contended by the learned counsel for the petitioners
that the petitioners require the amount for taking care of their three other
minor children and in support of his contention learned counsel for the
petitioners has relied upon a judgment by the Hon’ble Supreme Court in
H.S. Ahammed Hussain’s case (supra) wherein it has been held as under :
“8. Learned counsel for the appellant lastly submitted
that the amount of compensation payable to mothers of
the victims should not have been directed to be kept in
fixed deposit in a nationalised bank. In the facts and
circumstances of the present case, we are of the view
that the amount of compensation awarded in favour of
the mothers should not be kept in fixed deposit in a
nationalised bank. In case the amounts have not been
authenticity of this order/judgment
CR No.2270 of 2022 -3-
already invested, the same shall be paid to the mothers,
but if, however, invested by depositing the same in fixed
deposit in a nationalised bank, there may be its
premature withdrawal in case the parties so intend.”
Keeping in view the law laid down in the above referred case as
well as the fact that the petitioners are over 40 years of age and have also
three other minor children to look after, the present petition is allowed. The
order dated 12.05.2022 passed by the Tribunal is set aside and the award
dated 23.09.2021 is modified to the said extent. The amount of
compensation lying deposited in the shape of FDRs be released to the
petitioners forthwith.
Disposed off in the above terms. Pending applications, if any,
also stand disposed off.
NOTE : Whether speaking/non-speaking : Speaking
Whether reportable : YES/NO
authenticity of this order/judgment
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The Punjab and Haryana High Court recently allowed the plea of bereaved parents, seeking release of 50% compensation amount that was granted towards loss of their child in a motor accident, to be released from 3 years Fixed Deposit.Justice Alka Sarin referred to the case of H.S. Ahammed Hussain vs. Irfan Ahammed, [2002(3) RCR (Civil) 563], where the Supreme Court held that the amount...
The Punjab and Haryana High Court recently allowed the plea of bereaved parents, seeking release of 50% compensation amount that was granted towards loss of their child in a motor accident, to be released from 3 years Fixed Deposit.
Justice Alka Sarin referred to the case of H.S. Ahammed Hussain vs. Irfan Ahammed, [2002(3) RCR (Civil) 563], where the Supreme Court held that the amount of compensation awarded in favor of the mothers should not be kept in a fixed deposit in a nationalized bank.
In the present case, the petitioners had challenged an order passed by the Motor Accident Claims Tribunal whereby it was directed that 50% of the compensation awarded be deposited in fixed deposits in their names for a period of three years. The further challenge was to the order dismissing the application filed by the petitioners for release of the amount directed to be deposited in the FDRs.
The petitioners contended that both the petitioners are over 40 years of age and have three other children to look after and hence the money is urgently required by them.
Keeping in view the law laid down in the above referred case as well as the fact that the petitioners are over 40 years of age and have also three other minor children to look after, the present petition is allowed.
The court further set aside the order and award of the Motor Accident Claims Tribunal and ordered the release of the amount of compensation lying deposited in the shape of FDRs.
The order dated 12.05.2022 passed by the Tribunal is set aside and the award dated 23.09.2021 is modified to the said extent. The amount of compensation lying deposited in the shape of FDRs be released to the petitioners forthwith.
Case Title: Ayyub Khan and Anr VERSUS Pratap Gurjar and Ors.
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Civil Appeals Nos. 1 1970 1 1972 of 1983 Appeals by Special leave from the] judgment and order dated the 27th July, 1983 of the Madras High Court in W. A. Nos.
523, 531 & 528 of 1983.
K.K. Venugopal and C. section Vaidyanathan for the Appellants in CA Nos. 1 1970 71183.
Sahnti Bhushan, A. T. M. Sampath and Mr. K. Subramaniam for the Respondents in CA.
Nos. 1 1970 71/83. 194 A.K. Sen and A.V. Rangam for the Appellant in CA.
No. 1 1972 of 1983.
Soli J. Sorabjee A.T.M. Sampath and K. Subranmaniam for the Respondent in CA.
11972/83.
The Judgment of the Court was delivered by SEN, J.
These appeals by special leave directed against a judgment of a Division Bench of the Madras High Court dated July 7, 1983 upholding the judgment and order of a learned Single Judge dated June 13, 1983 relate to the grant of a licence for the manufacturing and supplying of bottled arrack to the wholesale and retail licensees for the Chingleput district under r. 7 of the Tamil Nadu Arrack (Manufacture) Rules, 1981 ( 'Rules ', for short) framed under the Tamil Nadu Prohibition Act, 1937 ( 'Act ' for short).
These appeals raise separate and distinct questions and must therefore receive separate consideration.
Put very shortly, the essential facts are these.
On May 28, 1982 one O.H. Kumar carrying on business under the name and style of Messrs Three Star Bottling Company surrendered his licence for the manufacture and supply of bottled arrack for the Chingleput district for the financial year 1 982.83.
The Commissioner of Prohibition & Excise, Madras called for applications from intending persons for the grant of the licence.
In response to the notice issued by the Commissioner under r. 3(2) of the Rules, there were two applications filed under r. 5 in Form 1, namely, by J. Balaji.
managing partner of Messrs Majestic Bottling Company on June 9, 1982 and by V. Ramabadran, managing partner of Messrs Chingleput Bottlers on June 14, 1982.
The Commissioner issued a questionnaire and directed the Collector, Chingleput to have an inquiry held as regards the suitability of the applicants for the grant of a licence.
Pursuant thereto, the Collector had an inquiry held by the Assistant Commissioner (Excise) which lasted for four days i.e. from June 21 to June 24, 1982.
After the preliminary inquiry and field inspection made by the Assistant Commissioner (Excise), the Collector forwarded his report dated July 2, 1982 to the Commissioner who fixed July S, 1982 for oral hearing of the parties.
On July 5, 1982, the Commissioner separately heard both J. Balaji and V. Ramabadran.
At the hearing, the Commissioner recorded the statements of both J. Balaji and vs Ramabadran in 195 support of their respective claims.
On July 31,1982 the Commissioner passed an order rejecting both the applications.
As regards Messrs Majestic Bottling Company, the Commissioner held that their application was in order but that they did not satisfy the requirements of r. S (a), and (e) of the Rules.
As to their suitability under r. S (a), he found that though the partnership had been formed prior to the date of the application i.e. On June 9, 1982 the firm actually got registered subsequent thereto on June 23, 1982 and therefore there was no valid partnership in existence on June 14, 1982 i. e.
On the date of the filing of the application.
As regards r. 5(e), he held that there was no water facility in the lands owned by the partnership firm.
As regards Messrs Chingleput Bottlers, the Commissioner held that the application made by them was not in order because it was not accompanied by a solvency certificate and that there was no potable water available at the proposed site.
He further held that there was only one and a half feet water in the well at the site and D it was of poor quality.
He also came to the conclusion that the application had not been made bona fide on behalf of the partnership firm but as benami for others.
The Commissioner accordingly held that Messrs Chingleput Bottlers did not fulfil the requirement of r. 5(a), (c) and (e) of the Rules.
The finding of the Commissioner that Messrs Chingleput Bottlers were mere benamidars of O.H. Kumar, the previous licensee, was based on the report of the Collector and the other material gathered by him during the course cf the inquiry.
Both Messrs Majestic Bottling Company and Messrs Chingleput Bottlers filed separate petitions under article 226 of the Constitution before the High Court questioning the validity of the order passed by the Commissioner.
By his judgment dated June 13, 1983 a learned Single Judge held that the Commissioner was not justified in rejecting the application of Messrs Majestic Bottling Company on a wrongful assumption that they did not satisfy the requirement of r. 5(a) and (e) of the Rules.
He held that the order was vitiated by an error apparent on the face of the record inasmuch as J. Balaji, managing partner of Messrs Majestic Bottling Company had produced record with regard to the availability of water.
The Learned Single Judge however set aside the finding of the Commissioner that the application made by Messrs Chingleput 196 Bottlers was not in order because it was not accompanied by a solvency certificate holding that non production of a solvency certificate would not entail a dismissal of the application on that ground alone, as also the finding with regard to non availability of water at the proposed site since the blending unit of Messrs Three Star Bottling Company was already functioning there.
The learned single Judge rejected the contention of Messrs Chingleput Bottlers that the Commissioner had acted in breach of the rules of natural justice by his failure to furnish the report of the Collector observing that nothing precluded them from seeking perusal of the records; nor did they make a demand for it.
By his judgment, the learned Single Judge by the issue of a writ of certiorari quashed the impugned order of the Commissioner insofar as he rejected the application made by Messrs Majestic Bottling Company on the ground that there was an error apparent on the face of the record but instead of remitting the matter back to the Commissioner to re consider the question of grant of such privilege, issued a writ of mandamus ordaining the Commissioner to grant the licence to Messrs Majestic Bottling Company.
He further upheld the order of the Commissioner rejecting the application of Messrs Chingleput Bottlers for the grant of privilege on the ground that they were mere benamidars of the previous licensee.
Aggrieved by the judgment of the learned Single Judge, both the State Government and Messrs Chingleput Bottlers preferred appeals under cl.
1 S of the Letters Patent.
Upholding the judgment of the learned Single Judge the learned Judge of the Division Bench held that learned Single Judge was justified not only in quashing the same but in issuing a writ of mandamus directing the Commissioner to grant the licence in favour of Messrs Majestic Bottling Company without the prior approval the State Government under r. 7 of the Rules.
Before proceeding further, we would like to mention that the State Government did not file a separate counter.
There was a counter affidavit filed by R. Lakshmanan, Joint Commissioner (IV), Department of Prohibition & Excise, Madras on behalf of both the State Government as well as the Commissioner of Prohibition & .
Excise seeking to support the impugned order passed by the Commissioner.
In addition to the grounds mentioned by the Commissioner for the refusal of the applications for grant of privilege, there was an additional ground taken in paragraph 11 and it was alleged that J. Balaji, managing partner of Messrs Majestic Bottling Company and his other partner Smt.
Shanthi, who incidentally is also his 197 mother were the two erstwhile directors of Messrs Dhanalakshmi Chemical Industries Private Limited, Ranipet upto November 26, 1980 and there was prima facie evidence that the company had misused the large quantity of rectified spirit by diverting alcohol from industries to arrack production and therefore they were persons not likely to abide by the provisions of the Act and the Rules farmed thereunder within the meaning of r. 5(b), and this would have been a relevant point to be taken into consideration by the State Government in the matter of grant or refusal of prior approval under r. 7(1).
It was alleged that these two persons were directors during the aforesaid period of misuse.
At the conclusion of the hearing of the appeals before the High Court, the State Government filed a supplementary affidavit of section Ranganathan, Deputy Secretary to the State Government of Tamil Nadu, Department of Prohibition & Excise furnishing further and better particulars of the alleged misuse of rectified spirit by Messrs Dhanalakshmi Chemical Industries Private Limited which had put the State Government to a loss of revenue to the tune of Rs. 2 crores.
It was averred that investigation into the case was almost complete and a prosecution was about to be launched against the Company and its directors, including J. Balaji and Smt.
Shanthi, the two partners of Messrs Majestic Bottling Company.
Inasmuch as no such objection was taken before the learned Single Judge, the learned Judges felt that it was not necessary for them to deal with the facts brought out in the two counter affidavits.
It appears that the learned Advocate General also did not press the ground at the hearing of the appeals.
The learned Judges held that the validity of the impugned order passed by the Commissioner must be adjudged by the reasons stated by him and cannot be supplemented by fresh reasons by the State Government in the shape of affidavit or otherwise .
There are really two questions that fall for determination.
The first is as to the jurisdiction of the High Court to issue a writ of mandamus.
It is said that the grant of licence under r. 7 is subject to the prior approval of the State Government and is in the discretion of the State Government.
The High Court is not the granting authority and therefore had no power to issue a writ of mandamus directing the Commissioner to grant a licence to Messrs Majestic Bottling Company.
The second question is whether the Commissioner acted in breach of the rules natural justice in not furnishing 198 to Messrs Chingleput Bottlers a copy of the report submitted by the Collector and other material gathered by him during the course of the inquiry tending to show that they were benamidars of one O.H. Kumar, the previous licensee.
It is said that Messrs Majestic Bottling Company had at the separate hearing before the Commissioner submitted a brief styled as a representation containing several documents in opposition to the application made by Messrs Chingleput Bottlers on the ground that their application was benami without furnishing a copy of the same to them and this must have influenced the mind of the Commissioner.
Even if the Commissioner was not acting in a judicial Or quasi judicial capacity, he was required to act fairly.
The rules of natural justice therefore required that Messrs Chingleput Bottlers should not be deprived of this business without knowing the case they had to meet.
Both the questions that arise will have to be dealt with separately.
The first issue, as already indicated, raises a question of prime importance and of some difficulty.
It would therefore be convenient, in the first instance, to deal with the appeal preferred by the State Government.
It is urged that the High Court had no jurisdiction to issue a writ of mandamus ordaining the Commissioner to grant a licence to Messrs Chingleput Bottlers under r. 7 of the Rules without the prior approval of the State Government.
It is said that although a writ of mandamus may be a necessary adjunct to a writ of certiorari the proper course for the High Court to have adopted was, if it was satisfied that the impugned order of the Commissioner was liable to be quashed insofar as he rejected the application made by Messrs Majestic Bottling Company on the ground that there was an error apparent on the face of the record, to have issued a writ of mandamus Commissioner to redetermine the question as to the grant of such privilege.
Reliance is placed on de Smith 's Judicial Review of Administrative Action, 4th edn.
at pp.341 and 544.
The contention must, in our opinion.
prevail.
In order that a writ of mandamus may issue to compel the Commissioner to grant the licence, it must be shown that under the Act and the Rules framed thereunder there was a legal duty imposed on the Commissioner to issue a licence under r. 7 of the Rules without the prior approval of the State Government and that Messrs Majestic Bottling Company had a corresponding legal right for its enforcement.
No mandamus will lie where the duty sought to be enforced is of a discretionary nature nor will a mandamus 199 issue to compel the performance by such public body or authority of an act contrary to law.
The Commissioner of Prohibition & Excise was under no legal duty to grant a licence to Messrs Majestic Bottling Company till he received the prior approval of the State Government under r. 7.
Even assuming that the Commissioner recommended the grant of a licence, to them under r. 7, the State Government were under no compulsion to grant such prior approval.
The grant or refusal of such licence was entirely in the discretion of the State Government.
The High Court had no jurisdiction to issue a writ of Mandamus to the Commissioner to grant a licence to Messrs Majestic Bottling Company contrary to the provisions of r. 7 of the Rules.
The learned Judges observed that in normal circumstances they would have upheld the objection of the learned Advocate General as to the jurisdiction of the High Court to issue a writ of mandamus, but in view of the fact that the State Government had chosen not to file a separate return taking a specific plea that in the event of a writ of certiorari being granted, the Court should not issue a writ of mandamus for the grant of licence since the grant or refusal of licence was subject to the prior approval of the State Government under r. 7 of the Rules.
The learned Judges accordingly held that the learned Single Judge was justified in issuing a writ in the nature of mandamus directing the Commissioner to issue a licence in favour of Messrs Majestic Bottling Company in view of the fact that there were only two applicants in the field and the application of Messrs Chingleput Bottlers having been rejected, the State Government had no other option but to make the grant in favour of Messrs Majestic Bottling Company.
Further, the learned Judges observed that to sustain the objection would be tantamount to allowing the State Government to sit in appeal over the judgment of the High Court.
In substance, the learned Judges were of the view that failure of the State Government to take a specific plea as to jurisdiction precluded them from raising a question as to the jurisdiction of the High Court to issue a writ of mandamus.
We are afraid, we cannot accept this line of reasoning.
It is true that sometimes it is prudent to couple a writ of certiorari with a writ of mandamus to control the exercise of discretionary power.
The following illuminating passages from de Smith 's Judicial Review of Administrative Action; 4th edn.
at pp.341 and 544 pithily sum up the function of a writ of mandamus; 200 "It is now open to a court when granting certiorari to remit the matter to the authority with a direction to reconsider and to decide in accordance with the findings of the court.
Apart from this, the role of the courts is limited to ensuring that direction has been exercised according to law.
If, therefore, a party aggrieved by the exercise of discretionary power seeks an order of mandamus to compel the authority to determine the matter on the basis legally relevant considerations, the proper form of the mandamus will be one to hear and determine according to law; though by holding inadmissible the considerations on which the original decision was based the court may indirectly indicate the particular manner in which the discretion ought to be exercised.
In practice the frontier between control of legality and control of the actual exercise of discretion remains indeterminate, for the courts are sometimes observed to cross the boundaries that they have set to their own jurisdiction." ** ** ** ** "The duty to observe these basic principles of legality in exercising a discretion is unlike the "duty" to apply the law correctly to findings of fact, prima facie enforceable by mandamus.
Hence where an authority has misconceived or misapplied its discretionary powers by exercising them for an improper purpose, or capriciously, or on the basis of irrelevant considerations or without regard to relevant considerations it will be deemed to have failed to exercise its discretion or jurisdiction at all or to have failed to hear and determine according to law, and mandamus may issue to compel it to act in accordance with the law " Professor H.W.R. Wade in his Administrative Law, 5th edn.
at p. 638 also defines the purpose of a writ of mandamus in these words: "Mandamus is often used as an adjunct to certiorari.
If a tribunal or authority acts in a matter where it has no power to act at all, certiorari will quash the decision and prohibition will prevent further unlawful proceedings.
If there is power to act, but the power is abused (as by breach of natural justice or error on the face of the record), certiorari will quash and mandamus may issue simultaneously to require a proper rehearing.
An example is Board of Education vs Rice cited elsewhere; the Board 's 201 decision was ultra vires since they had addressed their minds to the wrong question, consequently it was quashed by certiorari and the Board were commanded by mandamus to determine the matter according to law, i.e. within the limits indicated by the House of Lords.
" In our judgment, the High Court exceeded its jurisdiction in issuing a writ of mandamus directing the Commissioner to grant a licence to Messrs Majestic Bottling Company without the prior .
approval of the State Government as enjoined by r. 7 of the Rules.
The High Court was unduly technical in applying the rules of pleadings.
Absence of a specific plea in nature of demurrer would not invest the High Court with jurisdiction to issue a writ of mandamus ordaining the Commissioner to grant a licence to Messrs Majestic Bottling Company under r. 7 of the Rules without the prior approval of the State Government which was a condition pre requisite for the grant of such privilege.
It is regrettable that the High Court should have short circuited the whole procedure upon a wrongful assumption of its own powers.
The view taken by the High Court is manifestly erroneous.
Otherwise, the statutory requirement of such prior approval of the State Government under r. 7 would be rendered wholly otiose.
We should not be understood as laying down an inflexible rule that the High Courts cannot, under any circumstances, regulate or control the manner of grant of a liquor licence by the issue of a writ of mandamus.
It would all depend upon the facts and circumstances as to whether the High Court should issue a writ of mandamus or not.
The grant of a liquor licence is a matter of privilege.
In the very nature of things, the grant of refusal of licence is in the discretion of the State Government.
Normally, where the statute vests a discretionary power upon an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique motives or extraneous purposes or upon extraneous considerations.
The present case does not fall within the rule laid down in K. N. Guruswamy vs The State of Mysore & or and P. Bhooma Reddy vs State of Mysore & ors.
The decisions in Guruswamy 's and Bhooma Reddy 's cases are both in consonance with the well settled principle that the High Court can always issue a 202 writ of mandamus under article 226 of the Constitution against a public authority to compel the performance of a public duty where such authority acts in violation of the law.
It is urged on behalf of Messrs Majestic Bottling Company placing reliance on the decision of the House of Lords in Padfield vs Minister of Agriculture, Fisheries & Food and that of this Court in Messrs Hochtief Gammon vs State of Orissa & ors.
following the same that, no doubt where the reasons given are bad and the authority had not taken into consideration the relevant matters or real grounds on which the order could have been passed, the Court can direct the authority to reconsider the matter in the light of such relevant matters.
But it was urged that no useful purpose would be served in remitting the matter to the authority for reconsideration where all the reasons that can be given for upholding the validity of the order have been found by the Court to be bad and unsustainable.
The submission] is that in such a case the Courts will not direct the authority to reconsider the matter for, then there is nothing to reconsider but the Court will direct the authority to carry out what it has by the impugned order refused to do.
In Hochtief Gammon 's case, this Court deduced the following principles from the decision of House of Lords in Padfield 's case: "The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration.
They should not misdirect themselves on a point of law.
Only such a decision will be lawful.
The Courts have power to see that the Executive acts lawfully.
It is no answer to the exercise of that power to say that the Executive acted bonafide nor that they have bestowed painstaking consideration.
They cannot avoid scrutiny by courts by failing to give reasons.
If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny.
Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be. material to show that they have considered all the relevant facts.
203 This was not a case where it could be said that there was nothing for the State Government to consider as to whether should accord or refuse prior approval to the grant of a licence to Messrs Majestic Bottling Company under r. 7 of the Rules.
The Commissioner by the impugned order rejected the applications for grant of a licence made by both Messrs Chingleput Bottlers and Messrs Majestic Bottling Company and therefore the stage was not reached.
The stage for the State Government to reconsider the matter of grant of privilege under r. 7 would only arise when the commissioner makes a recommendation for the grant of a licence to Messrs Majestic Bottling Company.
At that stage, the State Government would have to consider whether they should accord prior approval for the grant of such privilege to Messrs Majestic Bottling Company having regard to the matters specified in r. 5 of the Rules and the conditions set out in r. 6(c), in view of the further facts brought out in the supplementary counter affidavit of Deputy Secretary to the State Government, Department of Prohibition & Excise in support of the objection raised in para 11 of the counter affidavit.
One of the relevant factors that the State Government must, as they should, take into consideration is the suitability of Messrs Majestic Bottling Company for the grant of licence as required under r. S(a) and the other is whether J. Balaji, the managing partner and Smt.
Shanthi the other partner, were persons who would abide by the provisions of the Act and the Rules made thereunder as enjoined by r. 5(b).
The facts lay a serious charge that Balaji, managing partner of Messrs Majestic Bottling Company and his other partner Smt.
Shanthi were directors of Messrs Dhanalakshmi Chemical Industries Private Limited, Ranipet upto November 26, 1980 and that there was prima facie evidence showing that the company had misused the rectified spirit issued to it causing a loss of revenue to the State Government to the tune of Rupees two crores or thereabout.
lt would be permissible for the State Government to take these facts as justification for refusal to grant prior approval under r. 7 of the Rules.
In coming to the conclusion they did, the learned Judges have drawn sustenance from the decision of this Court in Gujarat State Financial Corporation vs Messrs Lotus Hotels Private Limited and of the High Court in the State of Tamil Nadu & Anr.
vs C. Vadiappan in support of the view that the High Court had jurisdiction to issue a writ of mandamus directing the State of Tamil Nadu and 204 the Commissioner of Prohibition & Excise to grant the privilege for the manufacture and supply of bottled arrack to Messrs Majestic Bottling Company for the Chingleput district under r. 7 of the Rules.
The decision in Gujarat State Financial Corporation 's case (supra) is clearly distinguishable and is not an authority for any such proposition.
No such question arose in that case at all.
There, the Court was dealing with a contract entered into by the Gujarat State Financial Corporation with Messrs Lotus Hotels Private Limited for the purpose of setting up a 4 star hotel.
The Company approached the Corporation for a loan of rupees 30 lakhs and tile Corporation sanctioned a loan of Rs. 29.93 lakhs on certain terms and conditions which the Company accepted.
The Corporation however finally resolved not to disburse the loan to the Company whereupon the Company moved Gujarat High Court by a petition under Act.
226 for the issue of a writ of mandamus to direct the Corporation to disburse the loan.
A learned Single Judge of the High Court issued the writ as prayed for and it was confirmed by a Division Bench.
on appeal by the Corporation, this writ Court held that the High Court was justified in issuing the writ of mandamus.
The decision in Gujarat State Financial Corporation 's case, (supra) turned on the doctrine of promissory estoppel and it does not justify the conclusion reached by the learned Judges in the present case for the issue of a writ of mandamus.
It is needless to stress that if the requirement of law was that the advance of loan to be sanctioned by the Gujarat State Financial Corporation was to be subject to the prior approval of the Reserve Bank of India, the decision of the Court would have been otherwise: It is difficult to subscribe to the doctrine evolved by the High Court in Vadiappan 's case, (supra) that the Commissioner is the 'sole arbiter ' under r. 7 of the Rules.
It relied upon the earlier decision of the High Court in K. Ramaswamy vs Government of Tamil Nadu & ors laying down that the proviso to r. 6 of the Tamil Nadu Arrack (Supply by Wholesale) Rules, 1981 had to be understood strictly in a negative sense.
According to the High Court, at best it confers on the Government a power to veto.
By itself, the High Court observed, 'it does not make the Government a final arbiter between the competing claims.
The High Court further observed in Ramaswamy 's case, supra, that 'the weighing of the pros and cons and the consideration of the merits and demerits of the rival clai 205 ments remained, from first to last with the Commissioner as his sole responsibility, and that the requirement of the Government 's proper approval under the proviso to r. 6 of the Tamil Nadu Arrack (Supply by Wholesale) Rules 1981 was no doubt a necessary part of the validity of every licence, but 'the enabling power cannot be employed as a machinery for a review in every case but only as a check upon a possible abuse of its power by the Commissioner '.
That approach of the High Court seems to run counter to the scheme of the Act and the Rules framed thereunder.
The grant of a liquor licence under r. 7 is a matter of privilege of the State Government.
The Commissioner merely exercises the delegated powers of the State Government.
The ultimate responsibility for the grant of such privilege is with the State Government under r. 7 of the Rules.
Nor can we subscribe to the contention that the Commissioner had to act under the directions and control of the State Government under sub section
(2) of section 25A of the act while exercising his powers delegated under sub s (1) of section 17C read with section 25A (1) in the matter or grant of a liquor licence under r. 7 of the Rules.
It would not justify the High Court to issue a writ of mandamus to the Commissioner to grant a licence to Messrs Majestic Bottling Company under r. 7 of the Rules without the prior approval of the State Government.
Obviously, the State Government and the Commissioner cannot act de hors the scheme of the Act and the Rules framed thereunder.
Further, the contention that the State Government had already made up their mind against the grant of such privilege to Messrs Majestic Bottling Company and that there was no occasion for the High Court to send back the case to the Commissioner as it would have amounted to the State Government being asked to sit in appeal over the judgment of the High Court, cannot be accepted.
We regret to say, the High Court has tried to circumvent the whole procedure by issuing a writ of mandamus directing the Commissioner to grant a licence under r. 7 without the prior approval of the State Government.
As already stated, the grant of a licence under r. 7 of the Rules is a privilege.
There are no charges of mala fides on the part of the State Government.
There is no suggestion that the State Government had already made up their mind.
This is also not a case where the rules of necessity require recourse to a writ of mandamus to command the issue of a licence without conforming to the procedure prescribed under r. 7.
In the premises, it was not a proper exercise of jurisdiction for the High Court to have issued a writ of mandamus under article 226 206 of the Constitution ordaining the Commissioner to grant a licence to Messrs Majestic Bottling Company under r. 7 of the rules without the prior approval of the State Government.
In our opinion, the proper course for the High Court to adopt was to issue a writ of mandamus directing the Commissioner to redetermine the question after following the procedure of r. 7 and in case he came to a decision to grant the licence in favour of Messrs Majestic Bottling Company, to refer the matter to the State Government for its prior approval.
Otherwise r. 7 of the Rules would be rendered.
completely otiose.
Turning to the appeal preferred by M/s Chingleput Bottlers, learned counsel for them has mainly advanced a three fold submission: (1) The Commissioner had acted in flagrant violation of the rules of natural justice in.
not furnishing to Messrs Chingleput Bottlers a copy of the report of the Collector and other extraneous material comprising of a representation received from Messrs Majestic Bottling Company along with various other documents.
Nor had he disclosed to them the substance of the report of the Collector or other information gathered by him irrespective of the source.
(2) The impugned order passed by the Commissioner was vitiated by errors apparent on the face of the record.
There was no factual basis for the assumption that the three persons from whom Messrs Chingleput Bottlers had taken the lease of the land on which the blending unit is located.
viz, K.J. George, M/s. Visvambaran and E.K. Chandrasekaran, were real partners of Messrs Three Star Bottling Company.
There was also no warrant for the suspicion cast by the Collector in his report that Messrs Chingleput Bottlers were mere benamidars of one O.H. Kumar, proprietor of Messrs Three Star Bottling Company, the existing licensee, on the ground that they had entered into an agreement to purchase the blending unit from him.
The function of the Commissioner in making the grant of privilege under r. 7 of the Rules of being a quasi judicial nature, the Commissioner could not act on unwarranted conjectures and mere surmises.
(3) The Commissioner had rot acted fairly inasmuch as he adopted a double standard.
For a secret inquiry was conducted against Messrs Chingleput Bottlers for adjudging their suitability for the grant of privilege while no such inquiry was made against Messrs Majestic Bottling Company.
The Commissioner had thus treated Messrs Chingleput Bottlers and Messrs Majestic Bottling Company on an unequal footing and thus the procedure adopted was violative of article 14.
The observation made by the Commissioner that the deposit of Rs. 10,01,001 made by Messrs Chingleput Bottlers with 207 the Indian overseas Bank had not come from bona fide sources and that obviously there was some secret understanding between O.H. Kumar and Messrs Chingleput Bottlers was not based on any material at all.
The Commissioner knew that O.H. Kumar, the previous licensee, was not in a position to advance rupees 10 lakhs and odd to Messrs Chingleput Bottlers.
Again, no such inquiry was made as to the financial capacity of Messrs Majestic Bottling Company.
Further, the Commissioner had wrongly assumed that Messrs Chingleput Bottlers and given their address as 'Ramabadran, c/o Messrs Three Star Bottling Company, Iyanchery ' when no such address was ever furnished and therefore the impugned order is vitiated by an error apparent on the face of the record.
In support of the contention that the Commissioner acted in violation of the rules of natural justice, the learned counsel contends that Messrs Chingleput Bottlers had a right to be heard.
It is urged that there was clear breach of the principle of audi alteram partem in as much as neither a copy of the report of the Collector was furnished to Messrs Chingleput Bottlers nor a copy of the representation submitted by Messrs Majestic Bottling Company against the grant of licence to them.
The argument is that a hearing where a party does not know the case he has to meet is no hearing at all, while the learned counsel concedes that the right to know the case to be met does not necessarily involve any right to know the sources of adverse inference or to confront informants, for in many cases it will be quite proper for the authority to employ confidential sources, the rules of natural justice require that the information itself hold he disclosed so that there is a fair opportunity of meeting the case.
In the file relating to Messrs Majestic Bottling Company there is a representation filed by J. Balaji, managing partner of Messrs Majestic Bottling Company, consisting of 131 pages and was apparently handed over by J. Balaji at the time of hearing before the Commissioner on July 5, 1982.
The representation dated July 5, 1982 is in the form of a petition in continuation of the application for grant made on June 9, 1982.
Regarding Messrs Chingleput Bottlers, certain objections are raised to the grant of licence.
The objections are formulated in a document marked Annexure 'A '.
It is alleged that the existing licensee O.H. Kumar is ruling the show under the name and style of Messrs Three Star Bottling Company which is under the control of three persons, namely, K.J. George, M.S. Visvambaran and E.K. Chandrasekaran.
It recites that now find 208 ing that O.H. Kumar could not get the present licence, they have set up Ramabadran who has himself shown his address as care of Messrs Three Star Bottling Company.
This itself clearly shows that the applicant Ramabadran is a benamidar of Messrs Three Star Bottling Company.
In support of the assertion that Ramabadran is a benamidar of o.
H. Kumar, there is a copy of the judgment of the High Court of Madras in Writ Petition No. 1239 of 1961 filed along with other papers.
In the file relating to Messrs Chingleput Bottlers there is a two page note which formulates certain objections to the grant of privilege to Messrs Chingleput Bottlers.
It was obviously handed over by J. Balaji, managing partner of Messrs Majestic Bottling Company to the Assistant Commissioner (Excise) during his inspection of the blending unit or before the Collector before the submission of his report.
We do not think that the Commissioner was under an obligation to furnish Messrs Chingleput Bottlers with a copy of the report submitted by the Collector or of the representation made by Messrs Majestic Bottling Company.
This equally applies to the two page note appearing in the file of Messrs Chingleput Bottlers.
It was quite proper for the Commissioner to make secret and discreet inquiries from confidential sources.
There was no duty cast on him to disclose to Messrs Chingleput Bottlers the sources of adverse information or to give them an opportunity to confront the informants.
Rules of fairplay only 'enjoin that Messrs Chingleput Bottlers should know the case against them.
This apparently they did from the questionnaire issued by the Commissioner and the questions put by the Commissioner on July S, 1982 on the basis of the information gathered by him.
p The Commissioner has relied upon the report of the Collector and the conclusions reached by the Collector are based on the statement of Ramabadran recorded by the Assistant Commissioner(Excise).
Further, at the hearing on July 5, 1982, the Commissioner recorded the statement of Ramabadran, managing partner of Messrs Chingleput Bottlers.
There was no occasion for the Commissioner to have recorded the statement of Ramabadran over again unless this was to give him an opportunity to explain the substance of the report of the Collector or other information gathered by him irrespective of the source.
The learned Judges repelled the contention of Messrs Chingleput Bottlers that the Commissioner acted in breach of the rules of natural justice by his failure to furnish them with a copy of the 209 report of Collector on the ground that there is no fundamental right in a citizen to carry on any trade in liquor.
According to them, the Commissioner under the Rules performs an administrative function and having regard to the requirements of r. 5 of the Rules, and in view of the fact that Messrs Chingleput Bottlers had neither a legal right nor a legal expectation that they would be granted the privilege all that was required was that the Commissioner should act fairly in dealing with the application and not in a capricious or arbitrary manner.
On the material an record, the Learned Judges held that they were satisfied that the Commissioner acted fairly and reasonably and not arbitrarily or capriciously in coming to the conclusion that Messrs Chingleput Bottlers had not made the application on their own behalf, but benami for others and in rejecting their application for the privilege for setting up a blending unit for arrack Incidentally, they pointed out that Messrs Chingleput Bottlers did not specifically make a grievance of the fact in the writ petition that principles of natural justice had not been complied with.
It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case.
There has ever since the judgment of Lord Reid in Ridge v Baldwin, supra, been considerable fluctuation of judicial opinion in England as to the degree of strictness with which the rules of natural justice should be extended, and there is growing awareness of the problems created by the extended application of principles of natural justice, or the duty to act fairly, which tends to sacrifice the administrative efficiency and despatch, or frustrates the object of the law in question.
Since this Court had held that Lord Reid 's judgment in Ridge vs Baldwin would be of assistance in deciding questions relating to natural justice, there is always "the duty to act judicially" whenever the rules of natural justice are applicable.
There is therefore the insistence upon the requirement of a "fair hearing".
In the light of the settled principles, we have to see whether the Commissioner acted in breach of the rules of natural justice or fairplay in passing the impugned order.
There is authority for the proposition that an authority or body need not observe the rules of natural justice where its decision, although final, relates not to a 'right ' but to a 'privilege or licence ' In a number of recent decisions, the Courts have, while extending 210 the protection of natural justice in the former category of claims, denied such protection to the latter category.
All that is emphasized in such cases is that the applications must be considered fairly.
In R.V. Gaming Board for Great Britain ex parte Bneaim & Khaida the Court of Appeal held that in refusing a certificate for reasons concerning the character and suitability of the applicants, the Board must act fairly and obey the broad principles of natural justice.
In fact, it was held that they had done so since they had given the applicants full opportunity to know and contest the case against them, even though they had not revealed the sources of their information or given their reasons.
It follows that the right to know the case to be met does not necessarily involve any right to know the source of adverse information or to confront the informants, for in some cases it would be quite proper for the authority to employ confidential sources.
The Master of Rolls referred to the contention advanced by counsel appearing for the applicants that they ought not to be deprived of the chance to get licence for the gaming business without knowing the case they had to meet.
The counsel criticized especially the way in which the Board proposed to keep that confidential information and relied on some words of his in R. Surinder Singh Kanda vs Government of the Federation of Malayaa where he had said: "That the Judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other." Lord Denning rejected the contention by observing that 'the counsel had put his case too high '.
The learned Master of Rolls then observed: "It is an error to regard Crockford 's as having any right of which they are being deprived.
They have not had in the past, and they have not now, any right to play these games of chance roulette, cheminde fer, baccarat and the like for their own profit.
What they are really seeking is a privilege almost, I might say, a franchise to carry on gaming 211 for profit, a thing never hitherto allowed in this country.
It is for them to show that they are fit to be trusted with it." In Brren vs Amalgameted Engineering Union.
Lord Denning said: "If a man seeks a privilege to which he has no particular claim such as an appointment to some post or other then he can be turned away without a word." The Master of Rolls went on to say that nonetheless statutory and in some cases domestic bodies must act fairly and this may involve a hearing.
although it is not clear from the judgment whether the duty applies where an initial application is being considered or only where an existing privilege is being terminated.
In Mcinnes vs Onslow Fane & Anr.2 Megarry, V.C. has drawn a distinction between initial applications for grant of licence and the revocation, suspension or refusal to renew licences already granted.
The learned Vice Chancellor says that there is a substantial distinction between 'application cases ' and 'forfeiture cases '.
He observes that while an applicant for grant of licence has neither a right to such a grant nor a reasonable expectation that such grant would be made in his favour, but cancellation or forfeiture of an existing licence or refusal to renew a licences, involves a right to a hearing as the applicant has what may be called 'reasonable expectation '.
Megarry, V.C. dealt with the question whether the grant or refusal of licence by the Board of Control is subject to any requirement of natural justice or fairness which would be enforced by the courts.
In dealing with the nature of the right to claim a licence, he said that it was nothing but a privilege.
The three distinct categories can best be discerned in his own words: "First, there are what may be called the forfeiture cases.
In these, there is a decision which takes away some existing right or position, as where a member of an organization is expelled or a licence is revoked.
Second, at the other extreme there are what may be called the application cases.
There are cases where the decision merely refuses to grant the applicant the right or position that he seeks, such as membership 212 of the organization, or a licence to do certain acts.
Third, there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted.
This head includes cases where an existing licence holder applies for a renewal of his licence, or a person already elected or appointed to some position seeks confirmation from some confirming authority.
The learned Vice Chancellor went on to say that there was a substantial distinction between forfeiture cases and application cases.
In forfeiture cases, there is a threat to take something away for some reason.
In such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges which were the three features of natural justice are plainly apt.
In application cases, on the other land, nothing is being taken away, and in all normal circumstances there are no charges, and so no requirement of an opportunity of being heard in answer to the charges.
Indeed, there is the far wider and less defined questions of the general suitability of the applicant for membership or a licence.
The distinction is well recognized, for in general it is clear that the Courts will require natural justice to be observed for expulsion from a social club, built not on an application for admission to it.
The intermediate category i.e. Of the expectation cases, may at least in some respects be regarded as being more akin to forfeiture cases than application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or con formation of the membership is one which raises the question of what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.
In such cases, Megarry, V.C. felt that much help cannot be had from discussing whether 'natural justice ' or 'fairness ' was the more appropriate term.
He observes that if one expects that natural justice is a flexible term which impose, different requirement in different cases, it is capable of applying appropriately to the whole range of situations indicated by the terms such as 'judicial, ' 'quasi , judicial ' and 'administrative '.
The content of the "duty to act fairly ' did not impose on the Board to give either oral hearing to the 213 applicant or to disclose the case against him nor was .
it under any obligation to give reasons for a decision.
The learned Judge then went on to say that there was no obligation for the Board to give the applicant even the gist of the reasons while they refused his application, or proposed to do so, and added.
The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves while ranking unreasonable requirements and imposing undue burdens.
" In such cases; the right to hearing has been denied on the ground that the claim or interest or legitimate expectation is a more 'privilege or 'licence '.
This is in consonance with the decision of a Constitution Bench of this Court in Kishan Chand Arora vs Commissioner of Police, Calcutta following the judgment of the Privy Council in Nakkuda Ali vs M.F.De section Jayaratne 's case.
It is beyond the scope of the present judgment to enter into a discussion on the apparent conflict between the decision .
Of the Privy Council in Nakkuda Ali 's case and the observation of Lord Reid in Baldwin 's case.
It would appear that the long line of cases beginning with Baldwin 's case and ending with D 'arcy Ryan 's case are cases dealing with interference with property rights, deprivation of membership of professional or other non statutory bodies, dismissal from office, imposition of penalties and deprivation of advantages etc.
Both the Privy Council as well as this Court have required strict adherence to the rules of natural justice where a public authority or body has to deal with rights.
But the principle that there was a duly to observe the audi alteram partem rule may not apply to cases which relate not to rights or legal expectations but to mere privilege or licence.
lt is now well settled that while considering the question of breach of the principles of natural justice, the Court should not proceed as if there are inflexible rules of natural justice of universal application.
Each case depends on its own circumstances.
Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act.
214 There is nothing in the language of r.7 of the Rules to suggest that in refusing to grant the privilege, the Commissioner is obliged to act 'judicially '.
The order refusing a licence under r.7 is purely an administrative or executive order and is not open to appeal or revision.
There is no lis between the Commissioner and the person who is refused such privilege.
The power of refusal of licence unlike the power to grant is not subject to any pre condition.
It must follow that the grant of a liquor licence under r.7 of the Rules does not involve any right or expectation but it is a matter of privilege.
The Commissioner was therefore under no obligation either to disclose the sources of information or the gist of the information that he had.
All that was required was that he should act fairly, and deal with the applications without any bias, and not in an .
arbitrary or capricious manner.
There is no suggestion of any mala fides on the part of the Commissioner or the State Government.
The Commissioner heard both the parties after he had an inquiry made through the collector to adjudge their suitability for the grant of the licence.
The Commissioner had issued a questionnaire and had the material collected by the Collector.
The Commissioner was entitled to act on the report of the Collector and also on other material gathered by him during the course of the inquiry.
There is no requirement under the Act for a confronted hearing like the hearing contemplated between rival claimants for the grant of a stage carriage permit under the into their respective merits and demerits.
The Commissioner separately heard both the parties and had their statements recorded with respect to all the relevant aspects It cannot be said that the Commissioner in dealing with the applications did not act fairly in not furnishing a copy of the report of the Collector or in taking a representation from Messrs Majestic Bottling Company., The High Court could not have in proceedings under article 226 of the Constitution interfered with the impugned order of the Commissioner merely because on a reappraisal of the evidence it might have come to a contrary conclusion.
There was no error of jurisdiction on the part of the Commissioner nor was the impugned order vitiated by any error apparent on the face of the record.
The finding reached by the Commissioner that the application made by Messrs Chingleput Bottlers was not made bona fide on their own 215 account but as benanmi for others is a finding based on appreciation A of evidence.
The Commissioner was entitled to rely upon the facts found by the Collector.
It may be pointed out that the Collector 's report is entirely based on the statement of V. Ramabadran, managing partner of Messrs Chingleput Bottlers.
The High Court was therefore justified in dismissing the appeal preferred by Messrs Chingleput Bottlers.
In the result, the appeal preferred by the State Government must succeed and is allowed.
The judgment and order passed by the High Court for the issue of a writ or mandamus directing the Commissioner of Prohibition & Excise, Madras is set aside and the case is demanded to the Commissioner for a decision afresh according to law.
For the reasons stated, the appeal filed by Messrs Chingleput Bottlers must fail and is dismissed.
There shall be no order as to costs.
|
On the surrender of the licence for the manufacture and supply of bottled arrack for the Chingleput District for the financial year ]982 83 by the then existing licensee, the Commissioner of Prohibition and Excise called for fresh applications from intending persons for the grant of licence under the Tamil Nadu Arrack (Manufacture) Rules, 1981 framed under the Tamil Nadu Prohibition Act, 1937.
Two firms, namely, Majestic Bottling Company and Chingleput Bottlers, filed there applications and an enquiry with regard to them was held by the Assistant Commissioner.
The Commissioner considered the report of enquiry, gave separate oral hearing to the two applicants and passed an order rejecting both the applications.
As regards Majestic Bottling Company the Commissioner held that they did not satisfy the requirements of rr. 5(a) and 5(e).
In the case of Chingleput Bottlers, he held that they did not satisfy the requirements of rr. 5(a), 5(c) and 5(e).
While recording the finding in respect of Chingleput Bottlers, the Commissioner relied on a report of the Collector and other material gathered by him during the course of the enquiry, which included a representation from.
Majestic Bottling Company against the application of Chingleput Bottlers.
Both the applicants filed petitions under Article 226 of the Constitution questioning the orders passed by the Commissioner.
A Single Judge of the High Court issued a writ of certiorari quashing the order of the Commissioner insofar as he rejected the application of Majestic Bottling Company and also issued a writ of mandamus ordaining the Commissioner to grant the licence to Majestic Bottling Company.
As regards Chingleput Bottlers, the Single Judge rejected their contention that the Commissioner had acted in breach of rules of natural justice by his failure to furnish them the report of the Collector and observed that nothing precluded them from seeking perusal of the records or from making a demand for a copy of the same.
191 Both the applicants preferred appeals to the Division Bench.
The State Government which was in possession of material adverse to the two partners of Majestic Bottling Company did not initially file a separate counter affidavit but only did so at the conclusion of the hearing.
The Division Bench ruled that the order passed by the Commissioner must be adjudged by the reasons stated by him and those reasons cannot be supplemented by fresh reasons provided by the State Government in its belated affidavit and upheld the judgment of the Single Judge.
The State Government and Chingleput Traders filed appeals against the judgment of the Division Bench.
It was contended on behalf of the State Government that the grant of licence under r. 7 was subject to the prior approval of the State Government, that if the High Court was satisfied that the impugned order of the Commissioner was liable to be quashed on the ground that there was an error apparent on the face of the record, the proper course for it to adopt was to issue a writ of mandamus to the Commissioner to re determine the question of grant of such privilege and that the High Court had no power to issue a writ of mandamus directing the Commissioner to grant the licence in favour of Majestic Bottling Company.
It was contended on behalf of Chingleput Bottlers that the Commissioner had acted in breach of rules of natural justice in not furnishing them a copy of the report submitted by the Collector and other material gathered by him during the course of the enquiry.
Allowing the appeal of the State Government and dismissing the appeal of Chingleput Bottlers.
^ HELD: 1.
No mandamus will lie where the duty sought to be enforced is of a discretionary nature nor will a mandamus issue to compel the performance by a public body or authority of an act contrary to law.
[198H 199A] (a) In the instant case the Commissioner was under no legal duty to grant a licence to Majestic Bottling Company till he received the prior approval of the State Government under r. 7.
Even assuming that the Commissioner recommended the grant of a licence to them under r. 7, tho State Government were under no compulsion to grant such prior approval.
The grant or refusal of such licence was entirely in the discretion of the State Government.
The High Court had no jurisdiction to issue a writ of mandamus to the Commissioner to grant a licence to Majestic Bottling Company contrary to the provisions of r. 7.
[199 A C] de Smith: Judicial Review of Administrative Action, 4th Ed.
341 and 544: H.W.R. Wade: Administrative Law.
5th ed.
p. 638; referred to.
(b) Absence of a specific plea in the nature of demurrer would not invest the High Court with jurisdiction to issue a writ of mandamus ordaining the Commissioner to grant a licence under r. 7 without the prior approval of the 192 State Government which is a condition pre requisite for the grant of such privilege.
The High Court was unduly technical in applying the rules of pleading and short circuited the whole procedure upon a wrongful assumption of its own powers.
The view taken by it is manifestly erroneous; otherwise, the statutory requirements of such prior approval of the State Government under r. 7 would be rendered wholly otiose.
[201 C E] K.N. Guruswamy vs Stare of Mysore,[1955] 1 S.C.R. 305; and P. Bhooma Reddy vs State of Mysore, ; ; distinguished.
(c) It is not possible to accept the contention that no useful purpose would have been served by the High Court remitting the matter for the reconsideration of the Commissioner since it had already found that all the reasons that could be given for upholding the validity of the Commissioner 's order were bad and unsustainable.
This was not a case where it could be said that there was nothing for the State Government to consider while examining the question whether it should accord or refuse prior approval to the grant of licence to Majestic Bottling Company under r. 7.
One of the relevant factors that the State Government had to take into consideration was whether the partners of that Company were persons who would abide by the provisions of the Act and the rules.
The facts disclosed in the counter affidavit of the State Government lay a serious charge against the partners of that Company and it was permissible for the State Government to take those facts as justification for refusal to grant prior approval under r. 7.
[202C, 203A B, E F] (d) The proper course for the High Court to adopt was to issue a writ of mandamus directing the Commissioner to redetermine the question after following the procedure of r. 7 and in case he came to a decision to grant the licence in favour of Majestic Bottling Company, to refer the matter to the State Government for its prior approval.
[206A B] M/s Hochtief Gammon vs State of Orissa, [1976] 1 S.C.R. 667; Padfield vs Minister of Agriculture, Fisheries and Food; , referred to.
Gujarat State Financial Corpn.
vs M/s. Lotus Hotels Pvt. Ltd., ; distinguished.
State of Tamil Nadu vs C. Vadiappan, [1982] 2 Mad.
L.J. 30; and K. Ramaswamy vs Government of Tamil Nadu (Writ Appeal No. 368 of 1981); overruled.
It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case.
Strict adherence to the rules of natural justice is required where a public authority or body has to deal with rights.
The audi alteram partem rule may not apply to cases which relate not to rights or legal expectation but to mere privilege or licence.
An authority or body need not observe the rules of natural justice where its decision, although final, relates not to a 'right ' but to a 'privilege ' or 'licence '.
All that is emphasised in such 193 cases is that the applications for grant of privilege or licence must be considered fairly.
There are no inflexible rules of natural justice of universal application.
Each case depends on its own circumstances.
Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act.
[209C D G, 213D E G] The right to know the case to be met does not necessarily involve any right to know the source of adverse information or to confront the informants, for, in some cases it would be quite proper for the authority to employ confidential sources.
[210B C] Ridge vs Baldwin: ; ; R. vs Gaming Board for Great Britain, ; ; R. Surinder Singh Kanda vs Government of the Federation of Malaya, L R. ; ; Breen vs Amalgamated, Engineering Union, ; Mac Innes vs Onslow Fane & Anr., Kishan Chand Arora vs Commissioner of Police, ; ; and Nakkuda Ali vs M.F. De section Jayaratne referred to.
In the instant case there is nothing in the language of r. 7 to suggest that in refusing to grant the privilege, the Commissioner is obliged to act 'judicially '.
The order refusing a licence under r. 7 is purely an administrative or executive order and is not open to appeal or revision.
There is no lis between the Commissioner and the person who is refused such privilege.
The power of refusal of licence unlike the power to grant is not subject to any pre condition.
The grant of a liquor licence under r. 7 does not involve any right or expectation but it is a matter of privilege.
The Commissioner was under no obligation either to disclose the sources of information or the gist of the information that he had.
All that was required was that he should act fairly and deal with the applications without any bias, and not in an arbitrary or capricious manner.
The Commissioner was entitled to act on the report of the Collector and also on other material gathered by him during the course of the enquiry.
It cannot be said that the Commissioner in dealing with the applications did not act fairly in not furnishing a copy of the report of the Collector or in taking a representation from Majestic Bottling Company.
There is also no suggestion of any mala fides on the part of the Commissioner or the State Government.
[213G H, 214A B, C E, G H]
|
Civil Appeal No. 3047 of 1992.
From the Judgement and Order dated 30.7.1984 of the Patna High Court in Civil Writ Jurisdiction Case No. 373 of 1977.
M.L. Verma and S.K. Sinha for the Appellant.
A.K. Srivastava for the Respondents.
The Judgement of the Court was delivered by SHARMA, J.
The question arising in this case is whether a matter, if it comes within the scope of section 40 of the Bihar and Orissa Co operative Societies Act, 1935 (hereinafter referred to as the Act) has to be excluded from the purview of Section 48 of the Act.
Special leave is granted. 3.
The facts relevant for the decision of this appeal are in a short 894 compass.
The respondent No.1 was Depot Manager under the appellant Marketing Union Limited and during his tenure as such, a shortage of coal was detected.
A claim was accordingly made for the said loss by the appellant and a reference was made to the Assistant Registrar, Co operative Societies respondent No.3, under Section 48 of the Act.
The Assistant Registrar absolved the respondent No.1 from the alleged liability and an appeal was filed by the appellant under Section 48(6) of the Act before the Joint Registrar, Co operative Societies, respondent No.2, who are accepted the appellant 's case, rejected the defence and made an award accordingly.
This was challenged before the Patna High Court by a writ application under Article 226 of the Constitution of India.
The High Court held that since the matter was covered by the provisions of Section 40, Section 48 could not apply.
Consequently the award was held to be illegal.
So far section 40 was concerned, it was pointed out that the claim had to be rejected on the ground of limitation.
Thus without considering the other questions raised by the parties, the High Court allowed the writ petition by the impugned judgement which is under challenge in the present appeal.
It has been contended on behalf of the appellant that the provisions of Section 48 are wide enough to embrace the dispute which has been the subject matter of the present case and they cannot be given a narrow interpretation so as to exclude their application to cases which may also be covered by Section 40.
In reply reliance has been placed on behalf of the respondent No.1 on the decision in Purnea Ministerial Government Officer 's Co operative Society Ltd.v.
Abdul Quddus, (1969) B.L.J.R. Vol.
11 969 which has found favour with the High Court.
Section 40 pertaining to surcharge, provides that if as a result of an audit or inquiry it appears to the Registrar that any person who has taken part in the organisation or management of the society or any past or present officer of the society has either made a payment contrary to law or has been guilty of misappropriation or of having committed similar acts detailed therein, the Registrar may inquire into the matter and make an order requiring him to contribute an appropriate sum by way of compensation to the assets of the society.
The second Proviso to sub section (1) of the said section says that no such order shall be passed in respect of any act or ommission which had occurred more than six years earlier.
The provisions of sub section (1) of Section 48 (omitting the explanations which are not relevant for the present issue) dealing with Disputes are in the 895 following terms: "(1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises (a) amongst members, past members, persons claiming through members, past members or deceased members, and sureties of members, past members or deceased members, whether such sureties are members or non members; or (b) between a member, past member, persons claiming through a member, past member or deceased member, or sureties of members, past members or deceased members, whether such sureties are members or non members and the society, its managing committee or any officer, agent or servant of the society; or (c) between the society or its managing committee and any past or present officer, agent or servant of the society; or (d) between the society and any other registered society; or (e) between a financing bank authorised under the provisions of sub section (1) of Sec. 16 and a person who is not a member of a registered society; such dispute shall be referred to the Registrar: Provided that no claim against a past member or the estate of a deceased member shall be treated as a dispute if the liability of the past member or of the estate of the deceased member has been extinguished by virtue of Sec. 32 or Sec. 63".
The claim of the appellant against the respondent No.1 is clearly covered by clause (c) of sub section (1) above and, therefore, could have been validly referred to the Registrar under Section 48.
The argument, however, is that since the matter is covered by Section 40, Section 48 should be held to be inapplicable.
The High Court agreed and made the following observations: 896 "It is well known proposition of law that when a matter falls under any specific provision then if must be governed by that provision and not by general provisions (Generalia specialibus non derogant)".
The High Court has in its judgement assumed that whenever a specific remedy is made available in law the other remedy, more general in nature, necessarily gets excluded.
Validity of plural remedies, if available under the law, cannot be doubted.
If any standard book on the subject is examined, it will be found that the debate is directed to the application of the principle of election, where two or more remedies are available to a person.
Even if the two remedies happen to be inconsistent,they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly.
In the present case there is no such problem as no steps under Section 40 were ever taken by the appellant.
The provisions of Section 48 must, therefore, be held to be available to the appellant for recovery of the loss.
7.Our view that a matter which may attract Section 40 of the Act will continue to be governed by Section 48 also if the necessary conditions are fulfilled, is consistent with the decision of this Court in Prem Jeet Kumar V. Surender Gandotra and others, [1991] Supp. 2 S.C.C. 215, arising under the Delhi Co operative Societies Act, 1972.
The two Acts are similar and Sections 40 and 48 of the Bihar Act and Sections 59 and 60 of the Delhi Act are in pari materia.
The reported judgement followed an earlier decision of this Court in Pentakota Srirakulu vs Co operative Marketing Society Ltd.; , We accordingly hold that the High Court was in error in assuming that the application of provisions of Section 48 of the Bihar Act could not be applied to the present case for the reason that Section 40 was attracted.
So far the question of limitation is concerned it is true that as in the Delhi Act, a period of six years was fixed under the Bihar Act also by second Proviso under Section 40 (1), which reads thus: "Provided further that no order shall be passed under this sub section in respect of any act or omission mentioned in clauses (a), (b), (c) or (d) except within six years of the date on which such act or omission 897 occurred.
" It will be observed that the six years rule of limitation, however, is limited for the purpose of section 40, and cannot govern the reference under section 48.
The relevant provision of section 48 is to be found in the Proviso to section 48(1) which has been quoted above.
For determining its impact on the present case it is necessary to examine the Proviso closely.
Firstly, both the Proviso and section 63 of the Act are concerned only where the claim is against a member.
Even if the Proviso be assumed to govern a dispute between the society and its past or present officer or servant it cannot come to the aid of the present respondent No.1 because he was dismissed from service on 15.10.1966 and he was directed to deposit the disputed amount within 30 days therefrom.
The dispute was referred for adjudication under section 48 on 12.12.1966 and the reference was registered as Award Case No. 25 of 1968 on 03.08.1968.
Thus all these steps were taken within a period of two years.
No reliance, therefore, can be placed on either section 32 or 63.
The case of Putnea Ministerial government Officers ' Co operative Society Ltd. (Supra) is clearly distinguishable.
The respondent there was a member of the Society in question and had taken a loan which was the subject matter of the dispute.
As was pointed out by the High Court the claim had stood barred by limitation and, therefore, it was held that the reference was incompetent in view of the Proviso to section 48(1).
The High Court in the present case was, in the circumstances, not entitled to rely on this decision and its conclusions must be set aside as being erroneous in law.
However, since in the judgement it is stated that several other questions were also raised on behalf of the respondent No.1 (who was the writ petitioner) which remained undecided, the case requires reconsideration by the High Court on the remaining points.
Accordingly the impugned judgement is set aside and the writ petition is remitted to the High Court for fresh decision in accordance with the observations in the present judgement.
The appeal is allowed but in the circumstances without costs.
U.R. Appeal allowed.
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During the tenure of respondent 1 as Depot Manager of the Bihar State Cooperative marketing Union Ltd., a shortage of coal was detected.
The appellant Cooperative Union made a claim for the loss, and a reference was made to the Assistant Registrar, cooperative societies under section 48 of the Bihar and Orissa Cooperative Societies Act 1935.
section 48(1)(c) deals with disputes between the Society.
and a past or present officer or agent of the Society.
Section 40 provides for investigation by the Registrar where upon an audit or enquiry such officer has been found guilty of misappropriation or similar acts.
The Assistant Registrar in an enquiry under Section 48 absolved respondent 1.
This was reversed by the Joint Registrar and an award made accordingly.
The Patna High Court in a writ application under Article 226 by respondent 1 held that since the matter was covered by Section 40, Section 48 could not apply and set aside the award.
The High Court relied on the maxim generalia specialibus non derogant.
The claim under section 40 was rejected on the ground of limitation under second proviso to Section 40 which prescribe a period of six years.
Allowing the appeal, this Court, HELD : 1.
Validity of plural remedies, if available under the law, cannot be doubted.
Even if the two remedies are inconsistent, they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly.
A matter which may attract Section 40 will continue to be governed by Section 48 also if the necessary conditions 893 are fulfilled.
In the present case no steps under Section 40 were ever taken by the appellant.
The provisions of Section 48 are available to the appellant for the recovery of the loss.
[896C D] Prem Jeet Kumar vs Surender Gandotra & Ors., [1991] Supp.
2 SCC 215 and Pentakota Srirakulu vs Co operative Marketing Society Ltd., ; , followed.
The claim of the appellant against respondent 1 is clearly covered by Section 48(1)(c) and therefore was validly referred to the Registrar under Section 48.
[895G] 3.
The six year rule of limitation in Proviso under Section 40(1) is limited for the purpose of Section 40, and cannot govern a reference under Section 48.
Even otherwise, on facts the claim is not barred by limitation.
[897B] Purnea Ministerial Government Officers ' Co operative Society Ltd. vs Abdul Quddus, , distinguished.
Matter remitted to the High Court for decision on the remaining issues.
[897F]
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Petitioner :- Smt. Rashmi (Corpus)
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Hari Nath Chaubey
Counsel for Respondent :- G.A.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Gautam Chowdhary,J.
By way of this petition, the petitioner through his husband, has
sought a direction in the nature of Habeas Corpus directing
respondent No.4, Superintendent, Nari Niketan, Kanpur Dehat)
to produce the corpus namely Smt. Rashmi wife of Shivam
Yadav before this Court on date fixed by this Court on the date
fixed by this Court or released the corpus in favour of
petitioner.
Today, the corpus is brought before us from Nari Niketan,
Kanpur Dehat. She is major and wants to reside with her
legally wedded husband. Shivam Yadav, husband of the
petitioner, is also present before this Court and undertakes that
he will keep his wife with all goodness and it is at his behest
that this petition was filed. The mother of the husband also
accepts the girl.
In that view of the matter, Smt. Rashmi, petitioner herein, shall
be released immediately from Nari Niketan, Kanpur Dehat. We
make it clear that the police officials who have brought the girl
from Nari Niketan, Kanpur Dehat will immediately get her
released after lodging her back to the Nari Niketan, Kanpur
Dehat.
A copy of this order will be made available to the learned
A.G.A. who will transmit the same to the authority concerned
and the authority concerned would file compliance before this
Court on 4.7.2022. We request Hon'ble the Chief Justice to
constitute this Bench as we have heard this matter at length.
List on 4.7.2022 for filing the compliance.
|
The Allahabad High Court last week directed the release of a major woman from Nari Niketan (shelter for women in distress) after she told the Court she wished to reside with her legally wedded husband [Rashmi v. State of UP].
The direction was passed by a bench of Justices Kaushal Jayendra Thaker and Gautam Chowdhary in a Habeas Corpus petition filed by the wife, through her husband seeking a direction to the Superintendent, Nari Niketan to release her.
"In that view of the matter, Smt. Rashmi, petitioner herein, shall be released immediately from Nari Niketan, Kanpur Dehat," the Court ordered.
The bench directed the police officials who brought the petitioner to court to immediately release her.
The bench took note of the fact that the petitioner was a major who wished to reside with her husband. The husband also undertook to care for his wife, and his mother also accepted her.
"Husband of the petitioner, is also present before this Court and undertakes that he will keep his wife with all goodness and it is at his behest that this petition was filed. The mother of the husband also accepts the girl," the Court said.
The bench ordered a copy of the order to be made available to the additional government advocate for transmission of it to the concerned authority.
Further, the authority was directed to file compliance before the Court on July 4, 2022.
The petitioner was represented by advocate Hari Nath Chaubey.
|
Civil Appeal No. 297 of 1983.
From the Judgment and order dated 11 1.1983 of the Delhi High Court in C.W No 1858 of 1981 Soli J. Sorabjee, A.N. Haksar, Ravinder Narain P.K. Ram.
703 D.N. Mishra and Appellant in person (in C.A. No. 2658 of 1983) for the Appellants K. Parasaran, Attorney General, A K. Ganguli, K. Swamy and C.V.S. Rao for the Respondents The Judgment of the Court was delivered by DUTT, J.
This appeal is directed against the judgment of the Delhi High Court allowing in part only the petition of the appellants under Article 226 of the Constitution of India The appellant No. 1, J.K. Cotton Spinning & Weaving Mills Limited, has a composite mill wherein it manufactures fabrics of different types.
In order to manufacture the said fabrics, yarn is obtained at an intermediate stage.
The yarn so obtained is further processed in an integrated process in the said composite mill of the appellant No. 1 for weaving the same into fabrics.
The appellants do not dispute that the different kinds of fabrics which are manufactured in the mill are liable to payment of excise duty on their removal from the factory.
They also do not dispute their liability in respect of yarn which is also removed from the factory.
It is the contention of the appellants that no duty of excise can be levied and collected in respect of yarn which is obtained at an intermediate stage and, thereafter, subjected to an integrated process for the manufacture of different fabrics.
Indeed, on a writ petition of the appellants, the Delhi High Court by its judgment dated October 16, 1980 held that yarn obtained and further processed within the factory for the manufacture of fabrics could not be subjected to duty of excise.
It is the case of the appellants that in spite of the said decision of the Delhi High Court, the Central Board of Excise has wrongly issued a circular dated September 24, 1980 purporting to interpret rules 9 and 49 of the Central Excise Rules, 1944 (hereinafter referred to as 'the Rules ') and directing the subordinate excise authorities to levy and collect duty of excise in accordance therewith.
In the said circular, the Board has directed the subordinate excise authorities that "use of goods in manufacture of another commodity even within the place/premises that have been specified in this behalf by the Central Excise officers in terms of the powers conferred under rule 9 of the Rules, will attract duty".
As the said circular was being implemented to the prejudice of the appellants, they filed a writ petition before the Delhi High Court, inter alia, challenging the validity of the circular.
During the pendency of the writ petition in the Delhi High 704 Court, the Central Government by a Notification No . 20/82 C. dated 20.2.1982 amended rules 9 and 49 of the Rules.
Section 51 of the Finance Act, 1982 provides that the amendments in rules 9 and 49 of the Rules shall be deemed to have, and to have always had the effect on and from the date on which the Rules came into force i.e. February 28, 1944.
After the said amendments of the Rules with retrospective effect, the appellants amended the writ petition and challenged the constitutional validity of section 5 1 of the Finance Act, 1982 and of the amendments to rules 9 and 49 of the Rules.
The High Court came to the conclusion that section S I and rules 9 and 49 of the Rules, as amended, were valid.
It has, however, been held that the retrospective effect given by section S I will be subject to the provisions of sections 11A and 11B of the (hereinafter referred to as 'the Act ') Further, it has been held that the yarn which is produced at an intermediate stage in the mill of the appellants and subjected to the integrated process of weaving the same into fabrics, will be liable to payment of excise duty in view of the amended provisions of rules 9 and 49 of the Rules.
But the sized yarn which is actually put into the integrated process will not again be subjected to payment of excise duty for, the unsized yarn, which is sized for the purpose, does not change the nature of the commodity as yarn.
The writ petition was, accordingly, allowed in part.
Hence this appeal by the appellants upon a certificate granted by the High Court.
F At this stage, we may refer to rules 9 and 49 before and after amendment of the same.
The relevant portion of rule 9 before the same was amended is as follows: "Rule 9.
Time and manner of payment of duty. (1) No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf whether for consumption, export, or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require, and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form: " [The remaining provisions of rule 9 which are not relevant for our purpose are omitted. ] 705 By a Notification No. 20/82 C.B. dated 20.2.1982 of the Central Government, rule 9 was amended by the addition of the following A Explanation thereto: "Explanation.
For the purposes of this rule excisable goods produced, cured or manufactured in any place and consumed or utilised (i) as such or after subjection to any process or processes; or (ii) for the manufacture of any other commodity, whether in a continuous process or otherwise, in such place or any premises appurtenant thereto, specified by the Collector under sub rule (1), shall be deemed to have been removed from such place or premises immediately before such consumption or utilisation." Rule 49 before its amendment was as follows: "Rule 49.
Duty chargeable only on removal of goods from the factory premises or from an approved place of storage. (1) Payment of duty shall not be required in respect of excisable goods made in a factory until they are about to be issued out of the place or premises specified under rule 9 or are about to be removed from a store room or other place of storage approved by the Collector under rule 47:" [The remaining provisions of rule 49 which are not relevant for our purpose are omitted . ] By the said Notification rule 49 was amended by the addition of an Explanation thereto as follows: "Explanation.
For the purposes of this rule, excisable goods made in a factory and consumed or utilised (i) as such or after subjection to any process or processes; or (ii) for the manufacture of any other commodity, whether in a continuous process or otherwise, in such factory or place or premises specified under rule 9 or store 706 room or other place of storage approved by the Collector under rule 47, shall be deemed to have been issued out of, or removed from such factory, place, premises, store room or other place of storage, as the case may be, immediately before such consumption or utilisation.
" It has been already noticed that by section 5 1 of the Finance Act, 1982, amendments made to rules 9 and 49 have been given retrospective effect from the date on which the Rules came into force, that is to say, from February 28, 1944 It is not disputed before us that under section 3(1) of the Act, the taxing event is the production or manufacture of the goods in question.
Indeed, section 3 provides that there shall be levied and collected in such manner as may be prescribed, duties of excise on all excisable goods other than salt which are produced or manufactured in India and at the rates set forth in the First Schedule.
It is, therefore, clear that as soon as the goods in question are produced or manufactured, they will be liable to payment of excise duty.
While section 3 lays down the taxable event, rules 9 and 49 provide for the collection of duty.
There is a distinction between levy and collection of duty.
In The Province of Madras vs Boddu Paidanna & Sons, A.I.R. 1942 FC 33 it has been observed by the Federal Court as follows: "There is in theory nothing to prevent the Central Legislature from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it afterwards, whether it be sold, consumed, destroyed or given away.
A taxing authority will not ordinarily impose such a duty, because it is much more convenient administratively to collect the duty (as in the case of most of the Excise Acts) when the commodity leaves the factory for the first time, and also because the duty is intended to be an indirect duty which the manufacturer or producer is to pass on to the ultimate consumer, which he could not do if the commodity had, for example, been destroyed in the factory itself.
It is the fact of manufacture which attracts the duty, even though it may be collected later.
" Relying upon the aforesaid observation of the Federal Court, it has been urged by Mr. Soli Sorabjee, learned Counsel appearing on behalf of the appellants, that although it is true that as soon as the commodity is manufactured or produced it is liable to the payment of 707 excise duty, the duty will not, however, be collected unless the commodity leaves the factory.
It is submitted by him that the commodity must be removed from one place to another either for the purpose of consumption in the factory or for sale outside it before excise duty an be claimed.
Counsel submits that rules 9 and 49, as they stood before they were amended, and even the main part of these two rules after amendment, indicate in clear terms that so long as the goods which are manufactured in the factory are not removed, there is no question of payment of excise duty on the goods.
Several decisions have been cited on behalf of the appellants to show that some High Courts also have taken the view that removal is the main criterion for the collection of excise duty on the commodity produced or manufactured inside the factory or the place of manufacture.
We shall presently refer to these decisions.
It may, however, be noticed that the decisions are not also uniform on the interpretation of rules 9 and 49, as they stood before amendment.
We are, however, really concerned with the interpretation of these two rules after amendment, but as much submissions have been made by the parties in the light of the decisions of the High Courts on the interpretation of these two rules, we would like to refer to the same.
In Caltex oil Refining (India) Ltd. vs Union of India and others, it has been held by the Delhi High Court that there can be removal only if the product goes out of one stream of production into another stream of production or if the product is issued out of or taken out or consumed if no further processing of that product is to be done.
Further, it has been observed that there can be no removal of a product within the plant itself so long as the product is in the process of manufacture.
According to this decision, if the product, which is obtained at an intermediate stage of an integrated and uninterrupted process of manufacture, there is no removal of such product.
But, if the intermediary product is transferred from one plant to another for the manufacture of another commodity, there will be removal for the purpose of collection of duty.
In an earlier decision in Delhi Cloth & General Mills Co. Ltd. vs Joint Secretary, Government of India, the Delhi High Court had taken a different view.
In that case calcium carbide manufactured in the factory in one plant was used to generate acetylene gas by the transfer of the article from one plant to another in the same factory.
The question that came up for consideration of the High Court was whether there was removal of calcium carbide for the 708 purpose of levy and collection of excise duty.
The High Court relied upon the definition of 'factory ' under section 2(e) of the Act and took the view that the definition was not restricted to only the part in which the excisable goods were manufactured.
It was, accordingly, held that it could not, therefore, be said that calcium carbide made by the petitioner Company was removed from the factory in which it was produced.
This decision lays down that so long as a commodity is not removed from the factory premises, there is no removal within the meaning of rules 9 and 49.
A similar view has been taken by the Delhi High Court in a later decision in Modi Carpets Ltd. vs Union of India, where the High Court has expressed the view that o excise duty can be levied and recovered on 'sliver ' obtained by the petitioners, if it is consumed within the very premises in which it is manufactured because in such cases there is no removal of sliver from the place of manufacture as envisaged by rules 9 and 49 More or less a similar view has been taken by the Delhi High Court in another decision in Synthetics and Chemicals Ltd., Bombay vs Government of India, [19801 E.L.T. 675.
In that case, the petitioner manufactured Bentol, a mixture of Benzene and Toluene, in the factory, which was again used for the manufacture or rubber The High Court took the view that it was not a case of removal under rules 9 and 49 and, as such, no excise duty was payable on Bentol.
We may notice another decision of the Delhi High Court in Devi Dayal Electronics and Wires Ltd. vs Union of India, [ In that case it has been held that since the impugned resins (polyester or phenolic resins) are not removed from the place of manufacture but are used for the manufacture of end product (Varnish) within the plant itself, there is no removal of goods within the meaning of rule 9 read with rule 49 of the Rules.
Thus it appears that there is a conflict of opinion in the decisions of the Delhi High Court as to what is meant by the word 'removal ' for the purpose of payment of excise duty.
Two views have been expressed by the Delhi High Court.
One view is that so long as any product manufactured in the factory is not actually removed from the factory premises, there is no removal and, accordingly, no excise duty is payable on the product, even if the product is used for the manufacture of another commodity inside the factory.
The other view is that if at one stage a commodity known to the market is produced and is transferred, within the factory for the manufacture of another commodity, there is removal within the meaning of rules 9 and 49.
709 Apart from the above two views, there is a third view which has A also been expressed by the Delhi High Court, namely, that if an intermediate product is obtained in an integrated process of manufacture of a commodity, there is no removal and, therefore, such intermediate product although known to the market and comes under a particular tariff item yet, as there is no removal, there will be no question of payment of excise duty on such intermediate product.
The Nagpur Bench of the Bombay High Court in Oudh Sugar Mills Ltd. vs Union of India, [ has adopted the second and third views.
It has been held that if the purpose of removal of excisable goods is consumption in the same place where the excisable goods are manufactured or cured or if such excisable goods are used in the manufacture of any other goods in the same place, this cannot be done without payment of excise duty at the place and in the manner prescribed.
Further, it has been held that where the plant of production is treated as a composite plant and where the process of manufacture is an integrated, continuous and uninterrupted process, a transfer of a produce which is a component of the final produce from one part of the plant to another, does not amount to removal as contemplated by rule 9.
According to this decision, a process of onward movement of a component for being converted into a final product is not covered by the concept of removal contemplated by the provision of rule 9 of the Rules.
In Oudh Sugar Mills Ltd. vs Union of India, the Allahabad High Court has taken more or less the same view as that of the Bombay High Court.
It has been observed that an intermediate product which by itself is goods known to the market and is used in captive consumption for bringing out altogether a new goods not by an integrated process, but by a distinct and separate process, is liable to excise duty before its removal.
So far as captive consumption is concerned, the Gujarat High Court has taken the same view as that of the Allahabad High Court in Maneklal Harilal Spg. & Mfg. Co. Ltd. vs Union of India, where it has been held by the Allahabad High Court that excise duty is payable when yarn is removed from the spinning department to the weaving department for the manufacture of fabrics All the above decisions relate to rules 9 and 49 before they were amended.
Leaving aside the question of specification for the time being.
rule 9 before its amendment prohibits the removal of excisable goods 710 whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid.
It is manifestly clear from rule 9 that it contemplates not only removal from the place where the excisable goods are produced, cured or manufactured or any premises appurtenant thereto, but also removal within such place or premises for captive consumption or 'home consumption ', as it is called.
Thus if a commodity which is manufactured in such place or premises and is used for the manufacture of another commodity, then it will be a case of removal for the purpose of payment of excise duty.
This view which we take clearly follows from the expression "whether for consumption, export or manufacture of any other commodity in or outside such place".
Thus consumption of excisable goods may be within such place or outside such place.
The decisions which have taken the view that if a commodity manufactured within the factory in one plant is transferred to another plant for the purpose of production of another commodity will be removal for the purpose of payment of excise duty are, in our opinion, correct.
It is not easily understandable why the definition of expression 'factory ' under section 2(e) of the Act has been taken resort to in some of the decisions for the purpose of interpretation of rule 9.
There can be no doubt that if a commodity is taken outside the factory it will be removal, but rule 9 does not, in any manner, indicate that it is only when the goods are removed from the factory premises it will be removal and when the excisable goods manufactured within the factory is removed from one plant to another it will not be a case of removal.
On the contrary, as noticed already, rule 9 clearly embraces within it captive consumtion of excisable goods, that is to say, when excisable goods manufactured in the factory are used for production of another commodity.
Now the question is whether rule 9 before it was amended also envisaged a case of an intermediate product obtained in an integrated and continuous process of manufacture of another commodity, that is, the end product.
It must be admitted that prima facie rule 9 does not show that it also covers a case of integrated, continuous and uninterrupted process of manufacture producing a commodity at an intermediate stage which again is utilised in such continuous process for the manufacture of the end product The learned Attorney General, appearing on behalf of the Union of India, submits that rule 9 and rule 49 also envisaged such a case of integrated process of manufacture of the end product using a product produced at an intermediate stage In support of his contention he has placed reliance on an unreported decision of the Bombay High Court in Misc.
491 of 1964, dated April, 711 30, 1970 (Nirlon Synthethic Fibres & Chemicals Ltd. vs Shri R.K. Audim, Assistant Collector & Ors.) The learned Single Judge of the Bombay High Court took the view that a continuous or integrated process of manufacture was not initially contemplated by rule 9 or rule 49, but after the addition of a new set of rules being rules 173A to 173K to the Rules by the Notification dated May 11, 1968 a continuous and integrated process of manufacture came to be contemplated by the scheme of the Act and the Rules.
Reliance has been placed by the learned Judge on the Explanation to rule 173A as added by the said Notification dated May 11, 1968.
The Explanation is as follows: "Explanation The expression 'home use ' means the consumption of such goods within India for any purpose and includes use of such goods in the place of production or manufacture or any other place or premises (whether by continuous process or not), for manufacture of any commodity.
Reliance has also been placed on rule 173G which provides for the procedure to be followed by an assessee who is a manufacturer of matches or cigarettes or cheroots.
The relevant portion of rule 173G is a proviso thereto which is as follows: "Provided that the duty due on the goods consumed within the factory in a continuous process may be so paid at the end of the factory day.
" From the above provisions of the Explanation to rule 173A and the proviso to rule 173G, the learned Judge has taken the view that a continuous or integrated process of manufacture has come to be contemplated by the scheme of the Act and the Rules framed thereunder for the first time only in May, 1968, the scheme having been brought into force with effect from June 1, 1968 and prior thereto such a continuous or integrated manufacturing process was never contemplated by the Act or the Rules.
learned Attorney General gets inspiration from the said unreported case of the Bombay High Court and submits that atleast since after May, 1968, rule 9 and rule 49 envisage the case of an integrated and continuous process of manufacture involving the use or utilisation of a commodity produced at an intermediate stage of such process for the manufacture of an end product or commodity.
It is submitted by him that if the interpretation as given by the learned 712 Single Judge of the Bombay High Court in the above unreported decision is accepted, in that case, it will not be necessary to consider the effect of amended rule 9 or rule 49, that is to say, the Explanations that have been added to these two rules.
It may be that the concept of continuous or integrated process of manufacture has been recognised in the Explanation to sub rule (2) of rule 173A and in the proviso to rule 173G but we do not think that rule 9 or rule 49 should be interpreted in the light of provisions of the Explanation to sub rule (2) of rule 173A or the proviso to rule 173G Moreover, we are not concerned with the interpretation of rule 9 and rule 49, as they stood before the amendment.
In the instant case, the appellants have challenged rule 9 and rule 49 as amended by the Notification dated February 20, 1982 We are, therefore, concerned with the interpretation of these rules as amended, particularly the question of validity of these rules.
Before we proceed to consider the contentions made on behalf of the parties, it may be stated that in view of the divergence of judicial opinions as to the interpretation of rules 9 and 49, before they were amended, the Explanations to rules 9 and 49 have been added so as to obviate any doubt.
The Explanations to rule 9 and rule 49, inter alia, provide that commodity obtained at an intermediate stage of manufacture in a continuous process shall be deemed to have been removed from such place or premises as mentioned in sub rule (1) of rule 9 This deeming provision has been given retrospective effect by virtue of section S l of the Finance Act 1982.
It is urged by Mr. Sorabjee, learned Counsel for the appellants, that the amended rule 9 and rule 49 are arbitrary and unreasonable inasmuch as the goods which, in fact, are not removed from the factory and which are incapable of removal because of the nature and construction of the plant or the nature and character of the manufacturing process, are fictionally treated as having been removed.
It is submitted that as a result of the amendment of these rules the appellants are exposed to excessive hardship for not complying with the statutory provisions In view of the length of the retrospective operation of the amendments, namely 38 years from the date of the commencement of the Act, that is, February 28, 1944 the appellants would be called upon to pay enormous amount of duty in respect of the entire quantity of goods which have come into existence and have been captively consumed within the factory premises.
The appellants will not, however, be able to pass on this burden to consumers and will have to bear 713 the same themselves It is submitted that in view of the arbitrariness and unreasonableness of the amendments and the hardships that will be caused to the appellants and other manufacturers of excisable goods, the amendments should be struck down as violative of the provisions of Article 14 and Article 19(1)(g) of the Constitution of India.
It is not disputed that the Legislature is competent to make laws both prospectively and retrospectively But, as pointed out by this Court in Jawaharmal vs State of Rajasthan and others, [ 19661 I S.C. R. 890, the cases may conceivably occur where the court may have to consider the question as to whether excessive retrospective operation prescribed by a taxing statute amounts to the contravention of the citizens ' fundamental rights; and in dealing with such a question the court may have to take into account all the relevant and surrounding facts and circumstances in relation to the taxation.
Again in Rai Ramkrishna & others vs State of Bihar, [ 1964] I S C.R 897 this Court has pointed out that if the retrospective feature of a law is arbitrary and burdensome, the statute will not be sustained and the reasonableness of each retrospective statute will depend on the circumstances of each case; and the test of the length of time covered by the retrospective operation cannot, by itself, necessarily be a decisive test.
The apprehension of the appellants is that the amendments to rules 9 and 49 having been made retrospective from the date the Rules were framed, that is from February 28, 1944, the appellants and others similarly situated may be called upon to pay enormous amounts of duty in respect of intermediate goods which have come into existence and again consumed in the integrated process of manufacture of another commodity There can be no doubt that if one has to pay duty with retrospective effect from 1944, it would really cause great hardship but, in our opinion, in view of section I IA of the Act, there is no cause for such apprehension.
Section I IA(I) of the Act provides as follows: "Section l1A. (1) When any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, a Central Excise officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: 714 Provided that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub section shall have effect, as if for the words "six months", the words "five years ' were substituted.
Explanation.
Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be " Under section 11A( I) the excise authorities cannot recover duties not levied or not paid or short levied or short paid or erroneously refunded beyond the period of six months, the proviso to section l IA not being applicable in the present case.
Thus although section 5 l of the Finance Act, 1982 has given retrospective effect to the amendments of rules 9 and 49, yet it must be subject to the provision of section 11A of the Act.
We are unable to accept the contention of the learned Attorney General that as section 5 1 has made the amendments retrospective in operation since February 28, 1944, it should be held that it overrides the provision of section 11A.
If the intention of the Legislature was to nullify the effect of section 11A, in that case, the Legislature would have specifically provided for the same Section 5 1 does not contain any non obstante clause nor does it refer to the provision of section 1 IA.
In the circumstances it is difficult to hold that section 5 l overrides the provision of section 1 IA.
It is, however, contended by the learned Attorney General that as the law was amended for the first time on February 20, 1982, the cause of action for the excise authorities to demand excise duty in terms of the amended provision, arose on that day, that is, on February 20, 1982 and, accordingly, the authorities are entitled to make such demand with retrospective effect beyond the period of six months.
But such demand, though it may include within it demand for more than six months, must be made within a period of six months from the date of the amendment.
There is no provision in the Act or in the Rules enabling the excise authorities to make any demand beyond the periods mentioned 715 in section 11A of the Act on the ground of the accrual of cause of action.
The question that is really involved is whether in view of section 5 1 of the Finance Act, 1982, section 11A should be ignored or not.
In our view section S I does not, in any manner, affect the provision of section 11A of the Act.
In the absence of any specific provision overriding section 1 IA, it will be consistent with rules of harmonious construction to hold that section 51 of the Finance Act, 1982 in so far as it gives retrospective effect to the amendments made to rules 9 and 49 of the rules, is subject to the provision of section 11A.
In the circumstances, there is no question of the amended provision of rule 9 and rule 49 being arbitrary, unreasonable or violative of the provision of Article 14 and Article 19(1)(g) of the Constitution of India.
We may now deal with the challenge made to the retrospective operation of amendments of rules 9 and 49 on another ground.
In order to appreciate the ground of such challenge, we may once more refer to section 51 of the Finance Act, 1982.
The Explanation to section 5 1 provides as follows: "Explanation.
For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force.
" Under the Explanation, although rules 9 and 49 have been given retrospective effect, an act or omission which was not punishable before the amendment of the Rules, will not be punishable after amendment.
The Explanation does not however, provide for the penalties and confiscation of goods.
It is the contention of the appellants that as the appellants had not complied with the requirements of the amended rules 9 and 49, they would be subjected to penalties and their goods would be confiscated under the amended rules 9 and 49 read with rule 173Q of the Rules with retrospective effect.
It is, accordingly, submitted on behalf of the appellants that the amendment of these two rules with retrospective effect is arbitrary and unreasonable and should be struck down as violative of Article 14 of the Constitution.
Attractive though the argument is, we regret we are unable to accept the same.
It is true that the Explanation to section 51 has not mentioned anything about the penalties and confiscation of goods but H 716 we do not think that in view of such non mention in the Explanation excluding imposition of penalties for acts or omissions before amendment.
such penalties can be imposed or goods can be confiscated by virtue of the amended provisions of rules 9 and 49.
It will be against all principles of legal jurisprudence to impose a penalty on a person or to confiscate his goods for an act or omission which was lawful at the time when such act was performed or omission made, but subsequently made unlawful by virtue of any provision of law.
The contention made on behalf of the apellants is founded on the assumption that under the Explanation to section 5 1, the penalties can be imposed and goods can be confiscated with retrospective effect.
In the circumstances, the challenge to the amendments of rules 9 and 49, founded on the provision of the Explanation to section 51 of the Finance Act, 1982, is without any substance and is rejected The appellants have also challenged the prospective operation of the Explanation to rules 9 and 49 introduced by amendments of the same.
It is strenuously uged by Mr. Sorabjee, learned Counsel for the appellants, that even after amendment there must be removal of the goods from one place to another for the purpose of collection of excise duty.
Our attention has been drawn on behalf of the appellants to clause (b) of sub section (4) of section 4 of the Act, which defines "place of removal" as follows: "Sub section (4) For the purpose of this section, (a). . . . . . . (b) "place of removal" means (i) a factory or any other place or premises of production or manufacture of the excisable goods; or (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, from where such goods are removed.
It is submitted on behalf of the appellants that the Explanations to rule 9 and rule 49 are ultra vires the provision of clause (b) of sub section (4) of section 4 of the Act inasmuch as "place of removal" as defined therein, does not contemplate any deemed removal, but a 717 physical and actual removal of the goods from a factory or any other place or premises of production or manufacture or a warehouse etc.
A This contention is unsound and also does not follow from the definition of "place of removal .
Under the definition "place of removal" may be a factory or any other place or premises of production or manufacture of the excisable goods etc The Explanation to rules 9 and 49 do not contain any definition of "place of removal", but provide that excisable goods produced or manufactured in any place or premises at an intermediate stage and consumed or utilised for the manufacture of another commodity in a continuous process, shall be deemed to have been removed from such place or premises immediately before such consumption or utilization.
Clause (b) of sub section (4) of section 4 has defined "place of removal", but it has not defined 'removal '.
There can be no doubt that the word 'removal contemplated shifting of a thing from one place to another.
In other words, it contemplates physical movement of goods from one place to another It is well settled that a deeming provision is an admission of the non existence of the fact deemed.
Therefore, in view of the deeming provisions under Explanations to rules 9 and 49, although the goods which are produced or manufactured at an intermediate stage and, thereafter, consumed or utilised in the integrated process for the manufacture of another commodity is not actually removed, shall be construed and regarded as removed.
The Legislature is quite competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist.
It has been already noticed that the taxing event under section 3 of the Act is the production or manufacture of goods and not removal The Explanations to rules 9 and 49 contemplate the collection of duty levied on the production of a commodity at an intermediate stage of an integrated process of manufacture of another commodity by deeming such production or manufacture of the commodity at an intermediate stage to be removal from such place or premises of manufacture.
The deeming provisions are quite consistent with section 3 of the Act As observed by the Federal Court in Boddu 's case (supra) there is in theory nothing to prevent the central legislature from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it after wards, whether it be sold, consumed or destroyed or given away.
It is for the convenience of the taxing authority that duty is collected at the time of removal of the commodity.
There is, therefore, nothing unreasonable in the deeming provision and, as discussed above, it is quite in conformity with the provision of section 3 of the Act The contention that the amendments to rules 9 and 49 are ultra vires clause H 718 (b) of sub section (4) of section 4 of the Act, is without substance and is overruled.
It is next contended on behalf of the appellants that even assuming that there can be fictional removal as provided in the Explanation to rules 9 and 49, there cannot be such fictional or deemed removal without the specification of the place where the excisable goods are produced, cured or manufactured or any premises appurtenant thereto.
Rule 9(1), inter alia provides that no excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf until the excise duty leviable thereon has been paid.
The Explanations to rules 9 and 49 refer to the specification that has been made by the Collector under sub rule (1) of rule 9.
It is submitted on behalf of the appellants that as no specification has been made by the Collector of such place or premises appurtenant thereto, the provision of deemed removal with regard to the commodity produced at the intermediate stage and consumed or utilised in the continuous process of manufacture of the end product, is inapplicable.
It is contended that so long as such specification is not made by the Collector of the place of manufacture or of any premises appurenant thereto, the provision of deemed removal as contained in the Explanations to rule 9 and 49 cannot be given effect to.
On the other hand, it is contended by the learned Attorney General that specification of the place of manufacture and other places for the storage of the goods, is made in the licence which is required to be obtained under rule 174 of the Rules.
Rule ]78 provides for the form.
of licence.
Clause (b) of rule 178(1) provides that every licence granted or renewed under rule 176 shall have reference only to the premises, if any, described in such licence.
Form A L. IV is the form of an application for licence under rule 176.
In the Schedule to the Form, description of the premises intended to be used as a factory and of each main division or sub division of the factory has to be given.
Further, the detailed description of store room or other place of storage and the purpose of each has also to be given in the application form for the grant of licence for the manufacture of excisable goods.
Again under rule 44 of the Rules, the Collector may require any manufacturer to make a prior declaration of factory premises and its equipments.
Such a declaration has to be given in Form D 2 in respect of buildings, rooms, vessel, etc.
In view of the particulars which are required to be given by a licensee for the manufacture of excisable goods, it is submitted by the learned Attorney General that the specification that is 719 required to be made under rule 9(1), is made in the licence and in the declaration that has to be furnished by the manufacturer in Form D 2.
It is true that under rule 9(1) there is a provision for specification by the Collector, but the question is what has to be specified by the Collector.
It is the contention of the appellants that the Collector has to specify the place of manufacture and also any premises appurtenant thereto.
We are, however, unable to accept this contention.
The place where the goods are to be manufactured by a manufacturer, that is to say, the site of the factory cannot be specified by the Collector.
It is for the manufacturer to choose the site or the place where the factory will be constructed and goods will be manufactured.
Rule 9(1), in our opinion, does not require the Collector to specify the place where the excisable goods are produced, cured or manufactured.
The words "which may be specified by the Collector in this behalf" occurring in rule 9(1) of the Rules do not qualify the words "any place where they are produced, cured or manufactured ', but relate to or qualify the words "any premises appurtenant thereto".
In other words, if the place of removal is not the place where the goods are produced, cured or manufactured, but any premises appurtenant to such place, in that case, the Collector has to specify such premises for the purpose of collection of excise duty.
Thus the contention of the appellants that the Collector has to specify the place of manufacture and also any premises appurtenant thereto under rule 9(1) of the Rules, is without any substance.
Our attention has, however, been drawn to the impugned circular dated September 24, 1980 issued by the Central Board of Excise & Customs.
In clause 3 of the circular, it is stated as follows: "Mere approval of the ground plan in a routine manner will not suffice for purposes of rule 9 as under the said rule the place of production etc.
Or premises appurtenant thereto have also to the specified separately " Under the circular, the Collector is required to specify under rule 9(1) both the place of production and premises appurtenant thereto, if any.
In view of this direction given in the circular, the learned Counsel for the appellants submits that it is not only binding on the Collector and the other officers of the Central Excise Department, but also the circular is in the nature of contemporanea exposito rendering useful aid in the construction of the provision of rule 9(I) of the Rules.
This contention finds support from the decision of this Court in K.P. Var 720 ghese vs The Income Tax officer, Ernakulam, [1982] I S.C.R. 629 relied on by the learned Counsel of the appellants.
Indeed, it has been observed in that case that the rule of construction by reference to contemporanea exposito is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the 13 statute is plain and unambiguous.
In our opinion, the language of rule 9(1) admits of only one interpretation and that is that the specification that has to be made by the Collector is of any premises appurtenant to the place of manufacture or production of the excisable goods.
The specification is not required to be made and, in our view, cannot be made of the place of manufacture or production of the excisable goods.
Apart from that, as observed by Subba Rao, J., upon a review of all the decisions on the point, in an earlier decision of this Court in the Senior Electric Inspector and others vs Laxmi Narayan Chopra, ; , the maxim contemporanea exposito as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern.
Further, it has been observed that in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made and, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.
Most respectfully we agree with the said observation of Subba Rao, J.
In the circumstances, we do not agree with the direction of the Board of Central Excise & Customs given in the impugned circular that both the place of manufacture and the premises appurtenant thereto must be specified by the Collector under rule 9 1(1) of the Rules.
Thus, there being no question of specification of the place of manufacture, the contention of the appellants that without such specification there cannot be any deemed removal, fails.
In view of the discussion made above, we hold that the amendments to rules 9 and 49 are quite legal and valid.
Further, section S 1 of this Finance Act, 1982 giving retrospective effect to the said amendments is also legal and valid.
In the instant case, the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics.
Although it has been alleged that the yarn is obtained at an intermediate stage of an integrated process of manufacture of fabrics, it appears to be not so.
After the yarn is produced it is sized and, 721 thereafter, subjected to a process of weaving the same into fabrics.
Be that as it may, as we have held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty.
In our view, the High Court by the impugned judgment has rightly held that the appellants are not liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics.
No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn.
For the reason aforesaid, the judgment of the High Court is affirmed and this appeal is dismissed.
There will.
however, be no order as to costs.
Civil Appeal Nos.
2658 and 4168 of 1983.
In view of the judgment passed in Civil Appeal No. 297 of 1983, these appeals are also dismissed.
There will, however, be no order as to costs.
S.L. Appeals dismissed.
|
% The appellant No. 1, J.K. Cotton Spinning and Weaving Mills Limited, has a composite mill wherein it manufactures fabrics of different types, for which yarn is obtained at an intermediate stage, and the yarn is processed in an integrated process in the said composite mill for weaving the same into fabrics.
The Central Board of Excise issued a Circular dated September 24, 1980, purporting to interpret the rules 9 and 49 of the Central Excise Rules, 1944 (the Rules) and directing the subordinate excise authorities to levy and collect excise duty in accordance therewith.
The Board further directed vide the said Circular that the use of the goods in the manufacture of another commodity even within the place premises specified in this behalf by the Central Excise officers in terms of the powers conferred under rule 9 of the Rules, would attract duty.
As the implementation of the Circular worked to the prejudice of the appellants, they filed a writ petition in the High Court, challenging the validity of the Circular.
During the pendency of the said writ petition, the Central Government issued a Notification dated February 20, 1982, amending the rules 9 and 49 of the Rules, with section 51 of the Finance Act, 1982, providing that the amendments in the rules 9 and 49 shall be deemed to have, and to have always had, the effect with retrospective effect from the date on which the Rules came into force i.e. February 28, 1944.
Upon the amendments of the rules 9 and 49, with retrospective effect of the amendments, the appellants amended their writ petition above said to challenge the constitutional validity of Section 51 of the Finance Act abovementioned and the amendments to the rules 9 and 49.
701 The High Court allowed the writ petition in part.
It held (i) that section 51 and the rules 9 and 49 as amended were valid, (ii) the retrospective effect allowed by section 51 would be subject to the provisions of sections 11A and 11B of the (the Act), (iii) the yarn produced at an intermediate stage in the mill of the appellants and subjected to the integrated process of weaving into fabrics, would be liable to payment of excise duty in view of the amended provisions of the rules 9 and 49, but the sized yarn actually put into the integrated process would not again attract excise duty.
The appellants then filed this appeal (Civil Appeal No. 297 of 1983) before this Court by certificate.
Dismissing the Appeal, the Court, ^ HELD: The decisions of various High Courts cited, deal with the rules 9 and 49 of the Central Excise Rules, 1944, as they stood before they were amended by the Government Notification dated February 20, 1982.
In this case, what is involved is the interpretation of the said two rules after their amendment and the constitutional validity of the rules as amended.
The amendments to the rules 9 and 49 are quite legal and valid.
Section 51 of the Finance Act, 1982, giving retrospective effect to the said amendments is also legal and valid.
The apprehension of the appellants that the amendments to rules 9 and 49 having been made retrospective from the date the rules were framed, that is, February 28, 1944, the appellants may be called upon to pay enormous amounts of duty in respect of the intermediate goods which have come into existence and again consumed in the integrated process of manufacture of another commodity, is not right.
In view of section 11A of the Finance Act, there is no cause for such an apprehension.
Under Section 11A(1), the excise authorities cannot recover duties not levied or not paid or short levied or short paid or erroneously refunded beyond the period of six months, the proviso to section 11A not being applicable in the present case.
Thus though section 51 has given retrospective effect to the amendments of rules 9 and 49, it must be subject to the provision of section 11A of the Act.
Section 51 does not contain any non obstante clause, nor does it refer to the provision of section 11A, and it is difficult to hold that section 51 overrides the provision of section 11A. [712F H; 714D F] The appellants are liable to pay excise duty on the yarn obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics.
Although it has been alleged that the yarn is obtained at an intermediate stage of an 702 integrated process of manufacture of fabrics, it appears to be not so.
After the yarn is produced, it is sized, and thereafter, subjected to a process of weaving the same into fabrics.
As the Court has held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty.
[720G H: 721A B] The High Court has rightly held that the appellants are not liable to pay excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics.
No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn.
The judgment of the High Court affirmed.
[721B C] In view of the decision of the Court in the Civil Appeal No. 297 of 1983, the Civil Appeals Nos. 2658 and 4168 of 1983 also dismissed.
[721D] The Province of Madras vs Boddu Paidanna and Sons AIR ; Caltex oil Refining (India) Ltd. vs Union of India & Ors. , Delhi Cloth and General Mills Co. Ltd. vs Joint Secretary, Government of India, ; Modi Carpets Ltd. vs Union of India, ; Synthetics and Chemicals Ltd. Bombay vs Government of India, , Devi Dayal Electronics and Wires Ltd. vs Union of India, [1982] E.L.T. 33; Oudh Sugar Mills Ltd. vs Union of India, [1980] E.L.T. 327, Oudh Sugar Mills Ltd. vs Union of India, [1982] E.L.T. 927, Maneklal Harilal Spg. & Mfg. Co. Ltd. vs Union of India, ; Nirlon Synthetic Fibres & Chemicals Ltd. vs Shri R.K. Audim; Assistant Collector & Ors.
In Misc.
491 of 1964, unreported judgment of Bombay High Court, dated April 30, 1970, Jawaharmal vs State of Rajasthan & Ors., ; ; Rai Ramkrishna and Ors.
vs State of Bihar, ; , K.P. Verghese vs The Income Tax officer, Ernakulam; , and Senior Electric Inspector and Ors.
vs Laxmi Narayan Chopra, ; , referred to.
|
N: Criminal Appeals Nos. 178 and 248 of 1977.
Appeals by Special Leave from the Judgment and order dated 25 1 77, 4 3 77 of the Kerala High Court in Criminal Misc.
Petition No. 862/76 and Criminal Appeal No. 416/75.
T. C. Raghavan (In Crl.
A. 178/77) and P. K. Pillai for the Appellant.
K. T. Narindranath (In Crl.
A. 178/77) and K. R. Nambiar for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Criminal Appeals Nos.178 and 248 of 1977, both of which were admitted to a hearing by special leave and in each one of which the sole point for determination is whether a member of an executive committee or a servant of a registered co operative society is a public servant for the purpose of clause (c) of sub section (1) of section 5 of the Prevention of Corruption Act (Central Act No. 2 of 1947, hereinafter referred under the Criminal Law Amendment Act (Central Act No. 46 of to as the 1947 Act) and whether, therefore, a Special Judge appointed 1952, hereinafter called the 1952 Act) has jurisdiction to try him for an offence under that clause.
799 2.
The appellant in Criminal Appeal No. 178 of 1977 is M.A. Kochu Devassy who was sent up, alongwith 11 others, for trial in respect of offences under sections 120 B, 408, 465, 467, 477 and 477 A of the Indian Penal Code (hereinafter described as the Code) and clause (c) of sub section (1) read with sub section (2) of section 5 of the 1947 Act to the Special Judge, Trichur by the Deputy Superintendent of Police, Vigilance Department, Trichur.
The allegations against the accused were that while being members of the Board of Directors or the servants of Cooperative Society No. R 192, Chalakudy (hereinafter called the Society), they, on the 18th of May 1972, entered into a conspiracy to misappropriate the funds of the Society, that in pursuance of that conspiracy they misappropriated a sum of Rs. 1900/ on the same date and that they prepared false records in order to conceal the misappropriation.
Before the trial commenced, however, a petition was made on behalf of the accused to the High Court of Kerala praying that the charge be quashed.
That petition came up for hearing before Khalid, J., who doubted the correctness of the dictum of a Division Bench of that Court in Sahadevan vs State of Kerala to the effect that a Special Judge has jurisdiction to try all cases against employees of co operative societies under all or any of the provisions of section 5 of the 1947 Act.
He adverted to various provisions of that Act and the Kerala Criminal Law Amendment Act (Kerala Act 27 of 1962 and hereinafter referred to as the Kerala Act) and thought that an important aspect of the amendment promulgated by the Kerala Act was not brought to the notice of the Division Bench and therefore referred the matter to a larger Bench by an order dated the 7th of December 1976.
The petition then came up for final hearing before a Full Bench of the Kerala High Court, which has, by the impugned judgment, held that the dictum of the Division Bench mentioned above was correct, that a member of the executive committee or a servant of a registered co operative society was a public servant for the purposes of the 1947 Act as a whole in so far as the State of Kerala was concerned and that, therefore, such a member or servant could be tried by a Special Judge.
It is by that judgment that the appellant feels aggrieved.
The appellant in Criminal Appeal No. 248 of 1977 is one C.A. Thomas, who was convicted by the Special Judge, Trichur, for offences under clause (c) of sub section (1) read with sub section (2) of section 5 of the 1947 Act and section 408 of the Code and was sentenced to rigorous imprisonment for a year and a fine of Rs. 5000/ on the first count, the sentence in default of payment of fine being rigorous imprisonment for six months.
No sentence was awarded for 800 the offence under section 408 of the Code.
The allegations on the basis of which he was prosecuted and which were found proved against him were that while being employed as a store keeper at the firewood depot at Punkunnam owned by the Wholesale Co operative Stores Ltd. Trichur, he misappropriated profits accruing to his employers by abusing his official position.
He filed an appeal to the High Court of Kerala which was dismissed by a learned Single Judge on the 4th of March 1977 through the judgment impugned before us.
The pleas raised before the High Court on his behalf included one that the Special Judge had no jurisdiction to try him inasmuch as he was not a public servant for the purposes of the 1947 Act.
The plea was rejected by the High Court in view of the dictum of the Full Bench which is challenged before us in Criminal Appeal No. 178 of 1977.
At this stage we may usefully refer to various provisions of the Code, the 1947 Act, the 1952 Act, the Kerala Act and the Criminal Law Amendment Act (Central Act No. 50 of 1955 and hereinafter called the 1955 Act).
Section 21 of the Code defines what is a "public servant".
In 12 clauses it lists various categories of persons who fall within the definition.
Members of the executive committee or servants of a co operative society are not embraced by any of those categories.
Chapter IX of the Code headed "Of Offences by or relating to Public Servants" consists of sections 161 to 171.
Section 161 states the conditions on the fulfilment of which a public servant would be guilty of bribery and lays down the punishment therefor.
Section 2 of the 1947 Act as originally enacted was to the following effect: '2.
For the purposes of this Act, "public servant" means a public servant as defined in section 21 of the Indian Penal Code. ' Sub section (1) of section 5 of the 1947 Act states when a public servant can be said to commit the offence of criminal misconduct.
It has five clauses of which the first three run as follows: "(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or "(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or 801 for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or "(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or" Sub section (2) of section 5 of the 1947 Act provides for punishment in respect of an offence under sub section (1) thereof, while section 6 creates a bar against any court taking cognizance of an offence under sections 161, 164 and 165 of the Code or sub section (2) of section 5 of the 1947 Act unless previous sanction of certain authorities has been obtained in that behalf.
Now we come to the provisions of the 1952 Act.
Section 3 thereof added to the Code section 165 A which created and laid down the punishment for the offence of abetment of the offences covered by sections 161 and 165 of the Code.
Section 6 of the 1952 Act dealt with the appointment of Special Judges to try offences under sections 161, 165 or 165 A of the Code or sub section (2) of section 5 of the 1947 Act, or conspiracy to commit any of those offences.
Sub section (1) of section 7 of the 1952 Act barred the jurisdiction of Courts other than those of Special Judges to try the offences mentioned in section 6, while sub section (3) of section 7 provided that a Special Judge trying any of the offences mentioned in section 6 could also try offences with which the accused might be charged at the same trial in accordance with the provisions of the Code of Criminal Procedure.
The 1955 Act added offences under sections 162, 163 and 164 of the Code to the range of offences to try which the Special Judge had exclusive jurisdiction, so that such jurisdiction thenceforth extended to the trial of offences under sections 161 to 165 A of the Code and subsection (2) of section 5 of the 1947 Act.
Seven years later was promulgated the Kerala Act, section 2 where of amended section 161 of the Code by adding thereto an Explanation, the relevant part of which is extracted below: 802 '"Public Servant" For purposes of this section and sections 162, 163, 164, 165 and 165 A, the words "public servant" shall denote, besides those who are "public servants" within the meaning of that section under any law for the time being in force, persons falling under any of the descriptions hereinafter following, namely: (i). . . . . (ii). . . . . (iii). . . . (iv) Every member of the Board of Directors or the executive or managing committee and every officer or servant of a co operative society registered or deemed to be registered under the law relating to co operative societies for the time being in force; (v) . . . . . (vi) . . . . . (vii) . . . . . (viii) . . . . .
Section 3 of the Kerala Act may be reproduced in extenso: 'In the Prevention of Corruption Act, 1947 (Central Act 2 of 1947) (i) for section 2, the following section shall be substituted, namely: "2.
Interpretation For the purposes of this Act, "public servant" shall have the meaning assigned to it under the Explanation to section 161 of the Indian Penal Code as amended by the Kerala Criminal Law Amendment Act, 1962"; (ii) in section 5A, for the words, figures and letter, "under section 161, section 165 or section 165A," the words, figures and letter "under sections 161, 162, 163, 164, 165 or 165A" shall be substituted; (iii) in subsection (1) of section 6, after clause (b), the following clause shall be inserted, namely : "(bb) in the case of a person falling under any of the descriptions mentioned in items (i) to (viii) in the Explanation relating to "Public Servant" in section 161 of the Indian Penal Code as amended by the Kerala Criminal Law Amendment Act, 1962, save by or with the sanction of the State Government;" 803 4.
The contentions raised on behalf of the appellants may be summarised thus.
Section 2 of the Kerala Act brought members of the executive committee or the servants of a registered co operative society within the ambit of the expression "public servant" only for the purposes of sections 161 to 165A of the Code and for no other purpose and therefore the use of the enlarged definition could not be made for the purposes of the 1947 Act.
It is true that section 2 of the 1947 Act as substituted by the Kerala Act states that the expression "public servant" shall have the same meaning for the purposes of the 1947 Act as have been assigned to it under the enlarged definition of that expression in the Explanation added to section 161 of the Code, but then the phrase "for the purposes of this Act" occurring in the said section 2 must be deemed to have a limited meaning and should be read down as if they are restricted to only those purposes of the Act which concern sections 161 to 165A of the Code.
Had the intention of the framers of the substituted section been not to give such a limited meaning to the said phrase but to use it in its literal sense, there was no point in enlarging the definition of the expression "public servant" by adding an Explanation to section 161 of the Code; for, in that case, the proper and direct method of carrying out the intention would have been to amend section 21 of the Code itself, so as to make the definition therein embrace all the eight categories of persons mentioned in the added Explanation.
We find ourselves wholly unable to accept any of the contentions.
The terms of section 2 of the 1947 Act as substituted by section 3 of the Kerala Act are absolutely clear and unambiguous and when they lay down that the expression "public servant" shall have a particular meaning for the purposes of the Act, that meaning must be given to the expression wherever it occurs in the Act.
"For the purposes of the Act" surely means for the purposes of all and not only some of the provisions of the Act.
If the intention was to limit the applicability of the definition of the expression "public servant" as contended, the language used would not have been "for the purposes of the Act" but something like "for the purposes of the Act insofar as they relate to the offences under sections 161 to 165A of the Indian Penal Code.
" It may be noted here that section 2 of the 1947 Act as substituted by the Kerala Act does not reproduce the definition of the expression "public servant" as contained in section 161 of the Code, but states in so many words that the expression shall have the meaning assigned to it in the Explanation to the said section 161.
It follows that what is brought into section 2 of the 1947 Act is the meaning of the expression as contained in the Explanation and not the entire Ex 804 planation itself, so that the words "for the purposes of this section and sections 162, 163, 164, 165 and 165A" occurring in the Explanation are not transplanted into section 2 of the 1947 Act as substituted.
If the contrary were true and the Explanation had to be read word for word into the said section 2, the result would entail an absurdity; for then the section last mentioned would read thus : `For purposes of this Act, for purposes of the section and sections 162, 163, 164, 165 and 165A, the words "public servant" shall denote . . ' So read, the section makes no sense and the method of incorporation of the Explanation into the substituted section 2 cannot be accepted as a correct method of interpretation of the section.
Nor do we see any cogent reason why the legislature should have intended to limit the applicability of the enlarged definition as contended.
The Kerala Act carried out amendments to the 1947 Act insofar as the State of Kerala was concerned and the 1947 Act deals not only with offences under sections 161 to 165A of the Code but also, and mainly, with those falling under various clauses of sub section (1) of section 5 of the 1947 Act.
No reasonable line of distinction between the offences under sections 161 to 165A of the Code on the one hand and those punishable under sub section (2) of section 5 of the 1947 Act on the other appears feasible for the purpose of conferment or exclusive jurisdiction on Special Judges to try them.
From this point of view also, the interpretation canvassed on behalf of the appellants is untenable.
And the argument that the enlarged definition of the expression "public servant" would not have been adopted in the form of the Explanation to section 161 of the Code but would have been incorporated in section 21 thereof if it was to apply to the 1947 Act as a whole, though attractive at first sight, is really without substance.
In our view, the method adopted is not without purpose.
Had the definition been enlarged by an amendment of section 21 of the Code, it would have made the eight new categories of persons brought by it within the ambit of the expression "public servant" liable to punishment not only for offences under sections 161 to 165A of the Code but also for numerous other offences specified in the Code relating to public servants, as also to offences so related and created by other Acts wherein the definition of "public servant" occurring in section 21 of the Code has been adopted as such.
It was presumably to avoid such a result and to limit the scope of the applicability of the 805 definition to bribery, criminal misconduct and allied offences committed by public servants, that the legislature in its wisdom adopted the device of amending section 161 of the Code by adding the Explanation to it and by providing also that the enlarged definition shall govern all the provisions of the 1947 Act.
Not finding any merit in the contentions raised on behalf of the appellants, we hold that the enlarged definition of the expression "public servant" as contained in the Explanation added to section 161 of the Code by section 2 of the Kerala Act governs all the provisions of the 1947 Act, that the appellants are public servants within the meaning of that enlarged definition by reason of the language employed in clause (iv) of the Explanation and that, therefore, the offences under clause (c) of sub section (1) of section 5 of the 1947 Act said to have been committed by them are triable exclusively by Special Judges appointed under the 1952 Act.
Both the appeals are accordingly dismissed.
P.H.P. Appeals dismissed.
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The appellants in the above appeal were tried and convicted in respect of the offences inter alia under section 408, 465, 477 and 477A of the Indian Penal Code, 1860 read with section 5 of the Prevention of Corruption Act, 1947 by a special judge.
Both the appellants were members of a registered cooperative society.
The conviction of the appellants, was confirmed by the High Court.
21 of the Indian Penal Code defines a public servant "Members of the Executive Committee or servants of a cooperative society are not embraced by the categories mentioned in sec.
21" Chapter 9 of the Penal Code deals with offences by or relating to public servant.
Sec. 2 of the Prevention of Corruption Act, 1947 adopts definition of public servant from Sec.
21 of the Penal Code.
By the 1952 amendment of the Criminal Procedure Code the provisions of appointment of a Special Judge to try the offences have been provided.
The said 1955 amendment adds certain more offences which are to be tried by a special judge.
The Kerala Criminal Law Amendment Act, 1962 amended Sec.
161 of the Penal Code by adding an explanation thereto.
It provides that for the purpose of the said section and certain other sections a public servant shall denote, besides those who are public servants within the meaning of that section, members of the Board of Directors or the Executive or Managing Committee and other officer or servant of a Co operative Society registered or deemed to be registered under the law relating to co operative societies for the time being in force.
Sec. 3 of the Kerala.
Act provides that for the purpose of the Preventive of Corruption Act, 1947, public servant shall have the meaning assigned to it under the explanation to sec.
161 of the Indian Penal Code as amended by the Kerala Criminal Law Amendment Act, 1962.
(1) The appellants contended that sec.
2 of the Kerala Act brought members of the executive committee or the servants of a registered co operative society within the ambit of the expression "public servant" only for the purpose of Sections 161 to 165A of the Penal Code and for no other purpose.
Therefore, the use of the enlarged definition cannot be made for the purpose of 1947 Act.
(2) If the intention of the legislature was to enlarge the definition for all purposes, whatever, it would have amended section 21 of the Indian Penal Code itself.
Dismissing the appeals the Court, ^ HELD: (1) The terms of sec.
2 of the 1947 Act as substituted by sec.
3 of the Kerala Act are absolutely clear and unambiguous and when they lay down that expression public servant shall have a particular meaning for the 798 purpose of the Act, that meaning must be given to the expression wherever it occurs in the Act.
"For the purpose of the Act" surely means for the purpose of all and not only some of the provisions of the Act.
[803E] (2) The Kerala Act carried out amendment of the 1947 Act insofar as the State of Kerala was concerned.
The 1947 Act deals not only with offences under sec.
161 to 165A of the Penal Code but also and mainly with those falling under various clauses of sub section 1 to 5 of the 1947 Act.
No reasonable line of distinction between the offences under sec.
161 to 165A of the Code on the one hand and those punishable under sec.
5 of the 1947 Act on the other appears feasible for the purpose of conferment of exclusive jurisdiction on special judges to try them.
From this point of view also interpretation canvassed on behalf of the appellants is untenable.
[804C E] (3) The arguments that the legislature would have incorporated the additional definition under sec.
21 if it desired to extend the scope for all purposes is without substance.
If the definition had been enlarged by amendment of sec.
21 it would have made the new categories of persons brought by it within the ambit of the expression "public servant" liable to punishment not only for Offences under sec.
161 to 165A of the Code but also for numerous other offences specified in the code relating to public servants as also to offences so related and created by other Acts wherein the definition of public servant occurring in sec.
21 of the Code has been adopted.
[804F H]
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Special Leave Petition (Civil) No. 6577 of 1988.
From the Judgment and order dated 27.4.1988 of the High Court of Allahabad in C.M.W. No. 3777 of 1987.
G.L. Sanghi and Manoj Prasad for the Petitioner.
PG NO 278 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This application for leave to appeal under Article 136 of the Constitution arises from the judgment and order of the High Court of Allahabad, dated 27th April, 1988 by the judgment under challenge the Division Bench by majority directed the Addl.
City Magistrate or the Officer at present exercising the power of Distt.
Magistrate under Rule 10(9) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Rules 1972 to issue notice on all the five landlords mentioned in the petition within one week of the filing of the certified copy of the Order, and thereafter to make an Order in accordance with law and in the light of the observations made in the said Judgment.
The petitioner before the High Court, who is the petitioner herein also, was directed not to be dispossessed until disposal of the matter by the High Court.
This application is by the tenant petitioner.
The premises in question had five co owners, namely, Veeresh Saxena, R.C. Saxena.
D.C. Saxena, Smt.
Shanti Saxena and B.S. Saxena, respondent No. 3.
Until January, 1978, Veeresh Saxena was in sole and exclusive actual physical possession of the shop and carried on business in it.
In January, 1978 the present petitioner filed allotment application for the shop and he was the sole applicant.
On 28.1.1978, Veeresh Saxena vacated the shop and sent intimation of vacancy to the Rent Control Officer under the U.P. Urban Buildings (Regulation of Letting & Eviction) Act, 1972 (hereinafter called the Act).
The Rent Control Officer, then, directed him to appear in the allotment proceedings The Inspector reported that Veeresh Saxena was found to be in possession of the shop, discontinuing the business and was going to let out the shop.
On the Inspector 's report being pasted on the Notice Board of the Rent Controller Office, neither B.S. Saxena nor the other 3 co owners filed any objection.
Veeresh Saxena filed an affidavit before the Rent Control Officer that he wanted to let out the shop to the petitioner.
The 3 other co owners never objected to the petitioner`s tenancy on the allotment order throughout the last 10 years.
The allotment letter was accordingly passed on 12th February, 1978.
The possession was, thereafter, taken up, it was alleged by the petitioner in the special leave petition.
The petitioner had alleged that he had invested more than Rs.2 lakhs in the shop, but B.S. Saxena.
who was a non occupant owner, on or about 25th February, 1978 filed an application under section 16(5) of the Act, after 25 days of allotment, for review of the Order.
It was alleged by the petitioner that the evidence was overwhelmingly in support of the fact that he had taken PG NO 279 possession of the premises on or about 4/5th February, 1978.
The Rent Controller, however, on the said application of B.S. Saxena allowed the review application and cancelled the allotment order.
revision against the said order was filed before the learned Judge under section 18 of the Act.
The learned Addl.
Distt.
Judge dismissed the revision.
The petitioner, thereafter, filed a writ petition in the High Court of Allahabad .
The question arose about the maintainability of the review application under section 16(5) of the Act.
It is upon this point that the matter has been agitated before us.
There was a difference of opinion about the maintainability of the review application at the instance of a non occupant owner and the matter was referred to a Bench of 3 learned Judges and by majority the Division Bench came to the conclusion that such an application was maintainable.
The petitioner herein contends that the High Court was wrong in the view it took on the construction of Section 16(5)(b) of the Act.
The relevant provisions of the said sub section read as follow: "(5)(a) Where the landlord or any other person claiming to be lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b) as the case may be of sub section (I), the District Magistrate may review the order: Provided 1hat no application under this clause shall be entertained later than seven days after the eviction of such person .
(b) Where the District Magistrate on review under this sub section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and may for that purpose use or cause to be used such force as may be necessary.
(6) x x x (7) Every order under this section shall subJect to any order made under sec.
18 be final.
" PG NO 280 The contention is that a landlord who was not in actual physical possession until making of the allotment order or is evicted in pursuant thereof, is not competent to make an application for review of the allotment order or release order under section 16(5)(a) & (b) of the Act.
Admittedly, as mentioned hereinbefore, the respondent applicant was not in occupation when the Order was made.
He was, however, indisputably a landlord.
So, the question is whether on the construction of the section, a landlord who Is not in actual physical possession at the time of the release order, is entitled under the law to apply for review of the order.
The High Court held that he is entitled.
We are of the opinion that the High Court was right.
Section 16(5)(a) speaks of 'where the landlord or any other person '.
Hence,there are two categories of persons contemplated i.e. a landlord, or any other person.
The requirement of sub section, to be in lawful occupation of the building or any part thereof, applies Only in case of Lany other person claiming to be in lawful occupation and not in case of landlord.
The Section has used the expression ' or" and so the expression or is disjunctive of these two categories to be treated separately.
Hence, the requirement to be in lawful occupation.
is not there in case of an application by the landlord.
Mr. G.L. Sanghi, learned counsel appearing for the tenant, has sought to argue that by virtue of the proviso a landlord who was not in occupation, was not entitled to apply.
We are unable to accept this.
The proviso puts an embargo of 7 days in making the application for review.
It can only apply to those who were in lawful occuaption at the time of the making of the original Order.
It cannot curtail the rights of the landlord, as such, it only affects any other person who was lawful occupation.
In any event, it is a well settled principle of construction that unless clearly indicated, a proviso would not away substantive rights given by the Section or the sub section.
A land lord has a right to the property.
The Section should not be construed as to defeat the right to possession of property in appropriate cases unless the intention of the Legislature is manifest We find no such clear intention in the facts of this case.
We are, therefore,.
of the opinion that the High Court came to the correct conclusion that a landlord, even though not in actual physical possession at the time of the possession of the property.
call ask for review of the order of release or allotment.
It must be borne in mind that this view was also expressed by Mr. Justice N.D.Ojha, as our learned brother then was, in his judgment in Niren Kumar Das vs The District Judge, Pilibhit & Ors., AIR 1977 Allahabad PG NO 281 47.
We agree with that interpretation.
In that view of the matter, there is no substance in the contentions urged in the specil leave petition.
The application is, therefore,rejected.
N.V.K. Petition dismissed.
|
The petitioner in the Special Leave Petition is the tenant, Respondent No. 3 was one of the five co owners of the petition premises.
On January 28, 1978, one of the co owners who had sole possession of the shop vacated the shop and sent intimation of the vacancy to the Rent Controller under the U.P. Urban Buildings (Regulation of Letting and Eviction) Act, 1972.
The petitioner filed allotment application for the said shop and he was the sole applicant.
The Rent Control Officer directed the petitioner to appear in the allotment proceedings, called for a report from the Inspector, found one of the co owners to he in possession of the shop and that he had discontinued the business and was going to let out the shop.
The 3 other co owners never objected to the petitioner 's tenancy on the allotment order.
The allotment letter was accordingly passed on 12th February.1978, and possession was taken up by the petitioner thereafter.
On or about 25th February, 1978 the 3rd respondent who was a non occupant owner filed an application under section 16(5) of the Act i.e. after 25 days of the allotment, for review of the order.
The Rent Controller allowed the review application and cancelled the allotment order.
The Additional District Judge having dismissed the revision petition, the petitioner filed a writ petition in the High Court.
The question about the maintainability of the review application under section 16(5) of the Act at the instance PG NO 276 PG NO 277 of a non occupant owner having arisen the matter was referred to a Full Bench and by a majority, the Bench came to the conclusion that such an application was maintainable.
Dismissing the Special Leave Petition, HELD: 1.
A landlord, even though not in actual possession at the time of the possession of the property, can ask for review of the order of release or allotment.
[280G] 2.
A landlord has a right to the property.
The section should not be so construed as to defeat the right to possession of property in appropriate cases unless the intention of the Legislature is manifest.
[280F] 3.
Section 16(5)(a) speaks of 'where the landlord or any other person '.
Hence, two categories of persons are contemplated i.e. a land lord, or any other person.
[280C] 4.
The requirement of the sub section, to be in lawful occupation of the building or any part thereof, applies only in case of any other person claiming to be in lawful occupation and not in case of landlord.
The Section has used the expression "or" and so the expression "or" is disjunctive of these two categories to be treated separately.
Hence, the requirement to be in lawful occupation, is not there is case of an application by the landlord.
[280C D] 5.
The proviso puts an embargo of 7 days in making the application for review.
It can only apply to those who were in lawful occupation at the time of the making of the original Order.
It cannot curtail the rights of the landlord.
as such, it only affects any other person who was in lawful occupation.
[280E G] Niren Kumar Das vs 7he District Judge, Pilibhit & Ors.
AIR 1977 Allahabad 47, approved.
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1. Rule. Rule made returnable forthwith and, with the consent of
the counsels for the parties, heard finally.
This petition under Article 227 of the Constitution of India
calls in question the legality, propriety and correctness of an order
passed by the learned Additional Sessions Judge, Pune on 3 rd
September, 2021 on an application (Exhibit 20), in Sessions Case
No. 188 of 2019 whereby the prayer of the petitioner to discharge
him from the prosecution came to be rejected.
2. The background facts necessary for determination of this
petition can be stated as under:
a] Ms. S (hereinafter referred to as “prosecutrix”) is an actress
by profession. Her marriage was solemnized on 21 st November,
2002. However, in the year 2004, the said marriage was dissolved
by mutual consent. One of the friends of the prosecutrix introduced
the petitioner to her. In the year 2008, the petitioner represented to
her that he would assist her in procuring a flat at Mumbai under
Government’s 10% discretionary quota. The petitioner induced the
prosecutrix to part with a sum of Rs. 8 lakhs allegedly for payment
to the middlemen. The flat could not be allotted till the month of
March/April, 2010. The petitioner repaid a sum of Rs. 5 lakhs. The
petitioner, however, developed intimacy with the prosecutrix.
b] In June, 2010 the petitioner proposed the prosecutrix. The
petitioner represented that he was a bachelor. The petitioner met
the mother and brother of the prosecutrix and gained their
confidence as well. After the prosecutrix and her family members
agreed to the said proposal, the marriage of the prosecutrix was
solemnized with the petitioner on 23rd July, 2010 at Kita Cottage,
Varsova, Andheri(w). Pre-marriage ceremonies were held at Flat
No. 901, Pyramid Towers, Varsova, Andheri(w), which was taken on
rent. None from the family members of the petitioner attended the
said marriage. The petitioner claimed that since the marriage was
inter caste, his family members did not attend the same.
c] In the month of September, 2010 a lady “M” called the
prosecutrix and informed her that she was the wife of the petitioner
and they had two issues out of the said wedlock. When confronted,
the petitioner stated that the previous marriage was dissolved. The
petitioner assured to show the divorce papers and also get the
certificate of marriage with prosecutrix. In the meanwhile, the
petitioner made the prosecutrix to open a joint account with ICICI
Bank, Andheri branch, and withdrew huge amounts from the said
account behind the back of the prosecutrix.
d] On 23rd July, 2010 the prosecutrix and the petitioner
celebrated their first marriage Anniversary at Hotel Tunga, Andheri
(E), Mumbai. The said event was reported in newspapers. “M” came
to the house of the prosecutrix. In her presence, the petitioner
conceded that the documents evidencing the alleged divorce
between him and “M”, which he had shown to the prosecutrix, were
false. The petitioner claimed that he would ensure that separate
provision was made for her first wife and children.
e] Prosecutrix and her mother met the parents of the petitioner.
It transpired that the petitioner had deceived them by firstly
representing that he was a bachelor and, later on, claiming that his
first marriage was dissolved. The petitioner had allegedly obtained a
forged marriage certificate as well. The prosecutrix thus instituted a
petition for annulment of marriage in the Family Court, Pune.
3. The prosecutrix, thereafter, approached Dattwadi police
station, Pune and lodged report leading to registration of C.R. No.
148 of 2013 for the offences punishable under sections 420, 406,
467, 471, 474, 376, 323, 504, 506(i) and 494 of Indian Penal Code,
1860. Post completion of investigation, charge-sheet came to be
lodged against the petitioner.
4. The petitioner preferred an application for discharge
contending, inter alia, that the prosecutrix had made false and
baseless allegations against the petitioner. Those allegations were
vague. No specific date, time and place was mentioned with regard
to any of the events which allegedly transpired. Moreover, the
version of the prosecutrix was at variance with the averments in
the petition for annulment of marriage. There was an inordinate
delay of more than three years in lodging the first information
report. Thus, the charge against the petitioner was groundless.
Therefore, the petitioner deserved to be discharged.
5. The application was resisted by the prosecution.
6. The learned Additional Sessions Judge, after apprisal of the
contentions in the application, reply thereto and the report under
section 173 of the Code of Criminal Procedure and the documents
annexed with it as well as the submissions canvassed across the bar,
was persuaded to reject the application. The learned Additional
Sessions Judge was of the view that there were sufficient grounds to
proceed against the petitioner.
7. Being aggrieved, the petitioner has invoked the writ
jurisdiction of this Court.
8. I have heard Mr. Purwant, learned counsel for the petitioner,
Mr. Patil, learned APP for the State and Ms. Kantawala, learned
counsel for respondent No. 2/prosecutrix. With the assistance of the
learned counsel for the parties, I have perused the material on
record including the report under section 173 of the Code and the
documents annexed with it.
9. Mr. Purwant, learned counsel for the applicant, canvassed a
two-fold submission. Firstly, the claim of the prosecutrix that her
marriage was solemnized with the petitioner is required to be
repelled for the reason that there is no material to show that the
marriage between the prosecutrix and her husband, solemnized in
the year 2002, was legally dissolved. This negatives the very
premise of the prosecution case that the petitioner obtained the
consent of the prosecutrix by falsely representing that he was
unmarried and thereby committed the offence of cheating and rape.
Secondly, in any event, the offence punishable under section 376 of
the Penal Code cannot be said to have been made out, by any stretch
of imagination. The allegations in the first information report as well
as the averments in the petition for annulment of marriage,
according to Mr. Purwant, do not indicate even remotely that the
alleged physical relations between the prosecutrix and the
petitioner were without the consent of the prosecutrix. Mr. Purwant
would further urge that if the offence punishable under section 376
of the Penal Code is held to be prima facie not made out, then the
trial would be required to be held by the Court of learned
Magistrate. The learned Sessions Judge did not properly appreciate
this aspect of the offence punishable under section 376 of the Penal
Code not having been prima facie made out and rejected the
application by making general observations that there were
sufficient grounds to proceed against the petitioner, submitted Mr.
10. In order to lend support to the aforesaid submissions, Mr.
Purwant took the Court through the allegations in the first
information report and the averments in the petition for annulment
of marriage. An endevour was made to compare and contrast the
allegations in the first information report and the averments in the
petition and highlight the inconsistency therein. Mr. Purwant,
would further urge that in the written statement to the said
Marriage Petition, the petitioner has categorically asserted that the
marriage ceremony purported to be held on 23rd July, 2010 and the
anniversary celebration, the following year, were merely props as
the prosecutrix had induced the petitioner to perform the role of
‘husband’ for a programme to be aired. As the petitioner was fond of
film and TV industry, the petitioner performed those roles and, in
fact, the petitioner and the prosecutrix were never married and
cohabited as husband and wife.
11. The learned APP, countered the submissions of Mr. Purwant.
Laying emphasis on the material on record, especially the
statements of witnesses, who attended the marriage and
anniversary, the documents evidencing hiring of the premises on
Leave and Licence, bank statements and photographs, the learned
APP would urge that there is overwhelming material to lend support
to the allegations in the first information report. At this stage, the
defence of the petitioner is not required to taken into account at all,
submitted learned APP.
12. Ms. Kantawala, the learned counsel for respondent No. 2 at
the outset, submitted that the instant petition does not deserve to be
entertained as the learned Sessions Judge has framed charge
against the applicant on 14th October, 2021, after the application for
discharge came to be dismissed on 3rd September, 2021. In view of
the aforesaid development, the challenge to the impugned order
becomes unsustainable as the prayer for discharge cannot be
countenanced after the framing of the charge.
13. Ms. Aishwarya Kantawala, submitted that the very premise
of the petitioner that the marriage ceremony and the anniversary
celebrations were mere props, renders the application for discharge
untenable. In the face of the allegations in the first information
report and overwhelming documentary evidence, this issue would
surely warrant a trial. Ms. Kantawala further submitted that the
thrust of the submission on behalf of the petitioner that, in any
event the offence punishable under section 376 of the Penal Code
cannot be said to have been made out, is based on an incorrect
impression of the definition of “rape”. The case at hand, according to
Ms. Kantawala, would clearly fall within the ambit of clause
“fourthly” as the petitioner being a married man had fully known
that he was not the husband of the prosecutrix and made her to give
consent believing that he is the man to whom she is lawfully
married. Therefore, the offence punishable under section 376 of the
Penal Code is prima facie made out. Resultantly, the learned
Additional Sessions Judge committed no error in rejecting the
application, submitted Ms. Kantawala.
14. The challenge to the tenability of the petition, in the context of
its frame and the prayers therein, on the count of the framing of the
charge cannot be said to be bereft of substance. It seems that after
the application came to be rejected, on the next scheduled date the
learned Sessions Judge framed charge against the petitioner and
the petitioner abjured the guilt. Copies of the order framing charge
and the plea of the petitioner are annexed to the affidavit filed on
behalf of the respondent No. 2. It is trite that once a charge is
framed, the scope of interference by the High Court, even in
exercise of extraordinary writ jurisdiction, gets constricted. A
proper remedy for an accused aggrieved by framing of the charge is
to invoke the revisional jurisdiction. Indeed, the existence of an
alternative remedy is a self-imposed restraint. Yet, after the
framing of the charge, the High Court may not interdict the trial
unless the exercise of the jurisdiction becomes, in the peculiar facts
of a given case, absolutely imperative to prevent the abuse of the
process of the Court and secure the ends of justice.
15. In this context, Ms. Kantawala placed reliance on a judgment
of the Supreme Court in the case of Minakshi Bala vs. Sudhir Kumar
and Others1. Paragraph 7 reads as under:-
7] If charges are framed in accordance with Section 240
CrPC on a finding that a prima facie case has been made
out as has been done in the instant case the person
arraigned may, if he feels aggrieved, invoke the
revisional jurisdiction of the High Court or the Sessions
Judge to contend that the charge-sheet submitted under
Section 173 CrPC and documents sent with it did not
disclose any ground to presume that he had committed
any offence for which he is charged and the revisional
court if so satisfied can quash the charges framed against
him. To put it differently, once charges are framed under
Section 240 CrPC the High Court in its revisional
jurisdiction would not be justified in relying upon
documents other than those referred to in Sections 239
and 240 CrPC; nor would it be justified in invoking its
inherent jurisdiction under Section 482 CrPC to quash
the same except in those rare cases where forensic
exigencies and formidable compulsions justify such a
course. We hasten to add even in such exceptional cases
the High Court can look into only those documents which
are unimpeachable and can be legally translated into
relevant evidence.
16. Nonetheless in the context of the challenge, especially to the
invocation of the provisions contained in section 376 of the Penal
Code, I deem it expedient to appreciate the submissions keeping in
view the broad parameters on which a prayer for discharge from
prosecution is required to be appraised.
17. A profitable reference in this context can be made to the
judgment of the Supreme Court in the case of Union of India vs.
Prafulla Kumar Samal and Another2. The observations in
paragraph Nos. 8 and 10 are instructive and hence extracted below:
8] The scope of section 227 of the Code was
considered by a recent decision of this Court in the
case of State of Bihar v. Ramesh Singh(1) where
Untwalia, J. speaking for the Court observed as
"Strong suspicion against the accused, if the
matter remains in the region of suspicion, cannot
take the place of proof of his guilt at the conclusion
of the trial. But at the initial stage if there is a
strong suspicion which leads the Court to think that
there is ground for presuming that the accused has
committed an offence then it is not open to the
Court to say that there is no sufficient ground for
proceeding against the accused. The presumption of
the guilt of the accused which is to be drawn at the
initial stage is not in the sense of the law governing
the trial of criminal cases in France where the
accused is presumed to be guilty unless the
contrary is proved. But it is only for the purpose of
deciding prima facie whether the Court should
proceed with the trial or not. If the evidence which
the Prosecutor pro poses to adduce to prove the
guilt of the accused even if fully accepted before it is
challenged in cross-examination or rebut ted by the
defence evidence; if any, cannot show that the
accused committed the offence then there will be no
sufficient ground for proceeding with the trial".
This Court has thus held that whereas strong
suspicion may not take the place of the proof at the
trial stage, yet it may be sufficient for the
satisfaction of ths Sessions Judge in order to frame
a charge against the accused. Even under the Code
of 1898 this Court has held that a committing
Magistrate had ample powers to weigh the evidence
for the limited purpose of finding out whether or not
a case of commitment to the Sessions Judge has
been made out.
10] Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under section 227 of the Code
has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be,
fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it
is difficult to lay down a rule of universal
application. By and large however if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge
the accused.
(4) That in exercising his jurisdiction under section
227 of the Code the Judge which under the present
Code is a senior and experienced Judge cannot act
merely as a Post office or a mouth-piece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case
and so on. This however does not mean that the
Judge should make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if
he was conducting a trial.
18. On the aforesaid touchstone, reverting to the facts of the
case, I find it rather difficult to accede to the submissions on behalf
of the petitioner that there is no material in support of the
allegations of the prosecutrix that the petitioner made her to go
through the ceremony of marriage, they resided together as
husband and wife and there was a marriage anniversary
celebration. In addition to the statement of the relatives of the
prosecutrix, there are statement of witnesses, who attended the
marriage ceremony, including the statement of the Manager of the
Hall where the marriage ceremony was allegedly held and the Priest
who solemnized the marriage. To add to this the statement of Dr.
Murari Nanawati, indicates that the petitioner and the prosecutrix
had visited his clinic and consulted him in respect of starting a
family. There are medical reports which prima facie lend support to
the claim of Dr. Nanawati. As indicated above, the prosecution has
collected copies of the leave and licence agreement in respect of the
premises which was allegedly taken on rent by the petitioner to
cohabit with the prosecutrix, post marriage. The extract of the joint
account maintained by the petitioner and prosecutrix is also
pressed into service in support of the allegations.
19. In the face of the aforesaid material, at this juncture, it would
be impermissible to discard the prosecution version on the ground
that the petitioner has put forth a counter version, in his written
statement to the Marriage Petition. Indeed it is a matter for trial.
The necessary corollary of the aforesaid inference which, in the
circumstances of the case, appears at this stage irresistible is that
the question as to whether the petitioner forged the marriage
certificate and other documents is also a matter for evidence and
trial. I am, therefore, not persuaded to accede to the submission on
behalf of the petitioner that even the offences other than the offence
punishable under section 376 of the Penal Code are not prima facie
made out.
20. This propels me to the pivotal challenge mounted on behalf of
the applicant. Mr. Purwant urged with a degree of vehemence that
since the prosecutrix has instituted a petition for annulment of
marriage before the Family Court, by no stretch of imagination can
it be said that the physical relations were without the consent of the
prosecutrix. Amplifying the submission, Mr. Purwant would urge
that if the Family Court rules that the marriage was valid, the
prosecution under section 376 of the Penal Code would be wholly
unsustainable. In no circumstances, according to Mr. Purwant, the
physical relations, in the backdrop of the case where the
prosecutrix alleges that she was induced to solemnize the marriage
by making a false representation that the petitioner was a bachelor,
can be said to be without the consent of the prosecutrix. Therefore,
the learned Session Judge committed a grave error in not
discharging the petitioner from the prosecution at least for the
offence punishable under section 376 of the Penal Code, submitted
21. I have given anxious consideration to the aforesaid
submission. At the first blush, the submission appears attractive.
The submission, however, losses sight of the elements which vitiate
the consent of a woman for the sexual act. Clause ‘fourthly’ to
section 375 of the Penal Code addresses a situation where though
the sexual act is with the apparent consent of the prosecutrix, in
law the consent is vitiated on account of the circumstances
enumerated therein which have the effect of negating the consent.
Clause fourthly reads as under:-
Fourthly :- With her consent, when the man knows
that he is not her husband, and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully
married.
22. From the text of clause fourthly, it becomes abundantly clear
that the act with the apparent consent would fall within the dragnet
of offence of rape if the man knows that -
b) the woman gave consent because she believed that he is
another man to whom she is or believes herself to be lawfully
married.
23. To bring the sexual act within the mischief of clause fourthly,
two states of mind are necessary. First, a state of mind on the part
of the man manifested in the knowledge that he is not the husband
of the prosecutrix and that the consent is given under a mistaken
belief. Second, the state of mind of the prosecutrix manifested in her
belief that she is lawfully or believes herself to be lawfully married
to the man.
24. From the point of view of the prosecutrix, her belief as to her
situation in life qua the man, accused of committing the rape, is of
decisive significance. This belief, in turn, ought to be induced by a
positive act on the part of the man to make her believe that she is
married to him. If there is evidence to show the existence of
circumstances which made the prosecutrix to entertain such belief,
then clause fourthly would be attracted as the aspect of knowledge
on the part of the man that he is not her husband is often an
objective fact. To put it in other words, clause fourthly is attracted
where there is knowledge on the part of the man about he being not
the husband of the prosecutrix and the consent is on account of
such mistaken belief that he is her husband and a belief on the part
of the prosecutrix that she is the wife of the man. If the aforesaid
twin conditions are prima facie made out then the challenge to the
prosecution on the ground that the physical relations were with the
consent of the prosecutrix does not merit acceptance.
25. In the case at hand the prosecutrix categorically alleges that
the petitioner made her to solemnize the marriage and cohabit with
her by making a representation that he is unmarried. Since the
petitioner allegedly solemnized the marriage with the prosecutrix,
during the life of his wife, the marriage was, thus, void. The
petitioner knew that he is not the husband of the prosecutrix and
yet allegedly had physical relations with her. In the circumstances
of the case, prima facie, the submission on behalf of the respondent
No. 2 that the prosecutrix would not have given consent but for the
belief induced by the petitioner by falsely representing that he was
unmarried (though much married) appears to carry substance.
26. Reliance by Ms. Kantawala on a judgment of the Supreme
Court in the case of Bhupinder Singh vs. Union of Territory of
Chandigarh3 appears to be well placed. In the said case also, the
appellant therein, who was already married and had children from
the wedlock had induced the prosecutrix to enter into a marriage
ceremony and cohabit with him. Later on, the fact that the appellant
was already married and the first marriage was subsisting when the
appellant went through the marriage ceremony with the
prosecutrix came to light. In the backdrop of the said facts a
submission was sought to be canvassed that the physical relations
were with the consent of the prosecutrix and, therefore, the offence
punishable under section 376 cannot be said to have been made out.
27. Repelling the submission, the Supreme Court enunciated the
13] Learned counsel for the accused-appellant
submitted that when the complainant knew that he
was a married man and yet consented for sexual
intercourse with him, Clause "Fourthly" of Section 375
IPC would have no application. It was also submitted
that the fact that the complainant knew about his
being a married man, is clearly established from the
averments made in a suit filed by her where she had
sought for a declaration that she is the wife of the
accused. The sentence imposed is stated to be harsh. It
was, however, pointed out that the compensation, as
awarded by the High Court, has been deposited and
withdrawn by the complainant.
14] Learned counsel for the State submitted that it is a
clear case where Clause "Fourthly" of Section 375 IPC
is applicable. Learned counsel for the complainant
submitted that this was a case where no reduction in
sentence was uncalled for. The High Court proceeded
on an erroneous impression that the complainant knew
that the accused was a married man. It was also
submitted that the compensation as awarded, is on the
lower side.
15] Clause "Fourthly" of Section 375 IPC reads as
"375 Rape - A man is said to commit "rape", who,
except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
under any of the six following descriptions:-
Fourthly - With her consent, when the man knows that
he is not her husband, and that her consent is given
because she believes that he is another man to whom
she is or believes herself to be lawfully married.
16] Though it is urged with some amount of vehemence
that when complainant knew that he was a married
man, Clause "Fourthly" of Section 375 IPC has no
application, the stand is clearly without substance.
Even though, the complainant claimed to have married
the accused, which fact is established from several
documents, that does not improve the situation so far
as the accused-appellant is concerned. Since, he was
already married, the subsequent marriage, if any, has
no sanctity in law and is void ab-initio. In any event,
the accused-appellant could not have lawfully married
the complainant. A bare reading of Clause "Fourthly" of
Section 375 IPC makes this position clear.
28. The aforesaid pronouncement was followed by the Delhi High
Court in the case of Divya Oram Kujur vs. State and Anr.4 wherein in
somewhat similar fact-situation, the Delhi High Court had interfered
4 Cri. Revn. Petition No. 193 of 2012 Dt.27.02.2013
with the order passed by the learned Sessions Judge of discharging
the accused therein of the offence punishable under section 376 of
29. In the light of the aforesaid position in law, re-adverting to the
facts of the case, prima facie, clause fourthly of section 375 of the
Penal Code seems to be attracted. Firstly, there is material on record
to show that the petitioner and the prosecutrix went through the
ceremony of marriage. Secondly, there is adequate material to
demonstrate that the petitioner and prosecutrix cohabited as
husband and wife. Thirdly, it is not the case of the petitioner that his
spouse was not living on the date when he went through the
marriage ceremony. On the contrary, the petitioner asserts that the
ceremonies were mere props. Fourthly, the assertion of the
prosecutrix that she gave consent for the physical relations as she
was made to believe that she is the wife of the petitioner is also
prima facie borne out by the material on record. Conversely, it is not
the case of the petitioner, that the prosecutrix knew that he was
married and thus such a belief could not have been entertained.
30. The upshot of the aforesaid consideration is that there are
sufficient grounds to proceed against the petitioner, even for the
offence punishable under section 376 of the Penal Code. The trial
thus must proceed to its logical conclusion. Resultantly, the petition
deserves to be dismissed.
2] By way of abundant caution, it is clarified that the
observations are confined to the consideration of the prayer for
discharge and the trial Court shall decide the Session Case on its
own merits and in accordance with law without being influenced by
any of the observations made hereinabove.
3] Rule discharged.
|
Consent obtained for sex in a second marriage without disclosing first marriage would prime facie constitute rape, the Bombay High Court held refusing to discharge the 'husband' in a rape case filed by a Marathi actress. Justice N.J. Jamadar held that prima facie, clause four of section 375 of the Penal Code under which the offence of rape is defined seems to be attracted in the...
Consent obtained for sex in a second marriage without disclosing first marriage would prime facie constitute rape, the Bombay High Court held refusing to discharge the 'husband' in a rape case filed by a Marathi actress.
Justice N.J. Jamadar held that prima facie, clause four of section 375 of the Penal Code under which the offence of rape is defined seems to be attracted in the present case.
"Where there is knowledge on the part of the man about he being not the husband of the prosecutrix and the consent is on account of such mistaken belief that he is her husband and a belief on the part of the prosecutrix that she is the wife of the man."
The court was dealing with a petition that challenged the Additional Sessions Judge's order rejecting the petitioner's discharge application.
The prosecutrix is an actress by profession. She had learned about her husband's alleged bigamous acts after pictures of their wedding anniversary celebration were published in the newspaper. The first wife had confronted her soon after.
In 2013, the actress filed annulment proceedings in the Family Court and lodged an FIR against the petitioner under sections 420, 406, 467, 471, 474, 376, 323, 504, 506(i) and 494 of IPC.
The police completed the investigation and chargesheet was filed against the petitioner.
Petitioner filed a discharge application stating the allegations against him are vague and the prosecutrix's story is contradictory with the annulment petition. The Additional Sessions Judge rejected the application citing sufficient grounds to proceed against the petitioner. Hence, the present petition.
Advocate Viresh Purwant for the petitioner argued that there is no evidence that the actress's first marriage was legally dissolved. Hence, prosecution's claim that the petitioner obtained her consent by pretending to be unmarried is negated.
Further, no case of rape has been made out as there is no evidence showing that physical relations with the petitioner were without the prosecutrix's consent. The petitioner has claimed that the marriage ceremony and the anniversary celebration were merely props and, in fact, he and the prosecutrix were never married and cohabited as husband and wife.
APP Patil emphasised the material on record and argued that there are sufficient grounds for the trial. At this stage the defence of the accused need not be taken into account.
Advocate Aishwarya Kantawala for the Respondent no. 2 (the prosecutrix) relied on Minakshi Bala v. Sudhir Kumar and Others and argued that the petition is not maintainable. The prayer for discharge cannot stand once the charges have been filed. She further submitted that the facts of the case fall under the 'fourthly' clause of Section 376.
The court considered the question of maintainability and stated, "It is trite that once a charge is framed, the scope of interference by the High Court, even in exercise of extraordinary writ jurisdiction, gets constricted". Alternate remedies exist and in this case the proper remedy would be to invoke the revisional jurisdiction. However, the court decided to deal with the merits of the petition due to the peculiarity of the facts.
The court relied on Union of India v. Prafulla Kumar Samal and Anr. which held that strong suspicion against the accused is be sufficient in order to frame a charge against the accused. The court stated that there is substantial material to show that the marriage ceremony between petitioner and respondent had taken place and the two cohabited as husband and wife.
The court noted that the prosecutrix has alleged that she only married the petitioner because he claimed to be unmarried. Since his first wife is alive, his marriage with the prosecutrix is void. The petitioner knew that he is not the husband of the prosecutrix and yet allegedly had physical relations with her.
The court relied on Bhupinder Singh v. Union of Territory of Chandigarh which had similar facts and the Apex Court stated that the 'fourthly' clause is applicable to the facts.
The court stated that the 'fourthly' clause of Section 376 will apply when - a) the man knows that he is not the husband of the prosecutrix and that the consent is given under a mistaken belief and b) the prosecutrix believes that she is lawfully married to the man. "If the aforesaid twin conditions are prima facie made out then the challenge to the prosecution on the ground that the physical relations were with the consent of the prosecutrix does not merit acceptance", the court added.
The court concluded that a prima facie case against the petitioner has been made out and dismissed the petition.
Case no: Writ Petition No. 3527 of 2021
Case Title: Siddharth Banthia v. State of Maharashtra and Anr.
Coram: Justice N. J. Jamadar
|
Criminal Appeal No. 640 of 1988.
From the Judgment and Order dated 27.4.1987 of the Delhi High Court in Crl.
Rev. No. 221 of 1986.
B. Datta, Additional Solicitor General, Kitty Kumar Mangalam and Miss A. Subhashini for the Appellant.
Hardev Singh and R.K. Agnihotri for the Respondent.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Heard learned counsel for the parties.
The prosecution case, in short, is that to create fear and terror to commit murder and to aggravate tense situation some persons hatched a conspiracy to massacre the general public by placing transistor bombs at public places and also by placing them in public transports as trains, buses etc.
Many explosions took place in May 1985 in Delhi and parts of Uttar Pradesh in consequence whereof many persons were killed in Delhi and some places in Uttar Pradesh.
Several cases were registered in different police stations of Aligarh, Ghaziabad, Meerut and Khekra etc.
In Delhi F.I.R. No. 238 of 1985 was registered i.e. State vs Kartar Singh Narang etc.
wherein all the accused persons named therein were arrested except one Gurdeep Singh Sehgal who was declared as a proclaimed offender.
The accused Jagjit Singh and Gurvinder Singh turned approvers and they were granted pardon under Section 308 of the Code of Criminal Procedure, 1973.
They were examined as P.W. 1 and P.W. 2 in the committal case proceeding in the court of Chief Metropolitan Magistrate on December 24, 1985.
Both these approvers resiled from their statements in the court of the Committing Magistrate.
The accused persons were committed to the Court of Sessions to stand their trial for offences under Sections 121, 121A, 153, 153A, 302 and 307 I.P.C. and sections 3, 5 and 6 of Explosives Substances Act.
PG NO.
1096 On February 27, 1986, Surjit Kaur, another accused in the Transistor Bomb Case, against whom cases were pending in the Meerut, Ghaziabad and Aligarh Districts of U.P., moved an application under Section 406 of the Code of Criminal Procedure before this Court for transfer of criminal case pending in the court of Meerut to a court in Delhi.
This Court after hearing Counsel for the State of Uttar Pradesh has directed that criminal cases referred to at Serial Nos. 1, 2, 3 and 5 in paragraph 2 of the transfer petition stand transferred to the Court of the Chief Metropolitan Magistrate, Delhi and shall be tried along with the case instituted in the Court of the Chief Metropolitan Magistrate, Delhi arising out of F.I.R. No. 238 of 1985 of Police Station, Patel Nagar, New Delhi.
When the matter was taken up in the Court of Sessions, the respondent, Jagjit Singh, the approver moved an application that he cannot be examined as a witness as he had not accepted the pardon and did not support the prosecution version and he was forced to make a wrong statement by the police before the Metropolitan Magistrate.
The application was rejected by the Trial Judge after hearing the arguments of the parties on March 1, 1986.
Against this order, a Criminal Revision Petition No. 92 of 1986 was filed by the respondent, Jagjit Singh in the High Court at Delhi.
This application was heard by Jagdish Chandra, J who dismissed the petition on August 12, 1986 holding that the mandate of the law requiring that the approver shall be examined both before the Committing Magistrate as well as during trial as a witness, is binding not only on the trial court and the prosecution but also on the approver as well.
Thereafter, one of the accused person who was a proclaimed offender was arrested and a supplementary challan was filed in the Court of Metropolitan Magistrate, Delhi.
The respondent, Jagjit Singh was sought to be examined as an approver by the prosecution, in the said supplementary committal proceeding in F.I.R. No. 238 of 1985.
The respondent objected to his being summoned as an approver on the ground inter alia that he cannot be examined as a witness in a case though he is figuring as an accused person in other five cases on the same facts and circumstances which are being jointly tried.
The Chief Metropolitan Magistrate, Delhi dismissed the application by his order dated October 6, 1986.
Against this order the respondent Jagjit Singh filed Criminal Revision Petition No. 221 of 1986.
M.K. Chawla, J after hearing the parties allowed the Revision Petition and directed the State not to examine the respondent approver as an approver in case F.I.R. No. 238 of 1985.
PG NO.
1097 Aggrieved by this order this appeal by special leave has been filed by State.
It has been urged that the statement recorded under Section 164 of the Code of Criminal Procedure was not made by the respondent, Jagjit Singh voluntarily but it was obtained under coercion by the police.
It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate.
He should be arrayed as an accused in the case F.I.R. No. 238/85 and should be tried as an accused along with other accused in the said case.
This contention is not tenable in as much as the pardon granted to the respondent, Jagjit Singh was accepted by him and other approver, Gurvinder Singh who were examined as P.W. 1 and P.W. 2 in the court of the Committing Magistrate.
These approvers, of course, resiled from their statement in the court of the Committing Magistrate.
It has therefore, been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him.
This submission, in our considered opinion, is not tenable in as much as sub section (4) of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
It is therefore, a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court It does not matter whether the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfully concealed anything essential or has given false evidence contrary to the condition on which the tender of pardon was made.
It has been next contended that the grant of pardon is in the nature of a contract between the State granting the pardon on the one hand and the person accepting the pardon on the other hand.
As the State has the power to revoke the pardon at any time the approver has also got the reciprocal right to cast away the pardon granted to him.
This submission is also not tenable.
The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon.
Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance.
Section 306 clearly enjoins that the approver who was PG NO 1098 granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof.
It is because of this mandate, the State can not withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court.
The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court.
It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences.
In these circumstances, the question of casting away the pardon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance.
It has been submitted in this connection by citing a decision In re Arusami Goundan, AIR 1959 (Madras) 274 that the accomplice who has been tendered a pardon if at any stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions on which pardon was tendered to him and thereby incurs its forfeiture he should not be compelled by the prosecution to be examined as a witness before the trial court.
It has been observed even in the said case that the provisions of Section 337(2) of the old Code of Criminal Procedure, 1898 (5 of 1898) provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Sessions it has been held that: "The obligation to make a full and true disclosure would arise whenever the approver is lawfully called upon to give evidence touching the matter; it may be in the Committing court, or, it may be in he Sessions Court.
But, the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence.
If at any stage he either wilfully conceals material particulars or gives false evidence he would failed to comply with the conditions on which the pardon was tendered to him and thereby incurred its forfeiture.
Neither as a matter of reason or logic, nor as a matter PG NO 1099 of statutory interpretation can it be said that section 339(1) is dependent on or connected with section 337(2) in the sense that the approver must be examined both in the Committing Court and the Sessions Court before it can be held that he has forfeited his pardon.
It is sufficient if he fails to conform to the conditions on which the pardon has been granted to him at either stage." This decision has been considered in Emperor vs Shandino Dhaniparto, AIR 1940 (Sind) 114 wherein it has been held that: "When an accused after accepting pardon denies all knowledge of facts before the Committing Magistrate and the case is committed to Sessions Court the pardon cannot be forfeited before the accused is examined in the Sessions Court.
Once a pardon is tendered and accepted, section 337(2) renders it obligatory for the prosecution to examine the approver both in the Committing Magistrate s Court and in the Sessions Court should the case be committed.
Failure of the prosecution to examine the approver in the Sessions Court vitiates the trial.
" The provisions of Sections 337 and 339 of the old Code of Criminal Procedure are almost in identical terms with the provisions of Sections 306 and 308 of the Code of Criminal Procedure, 1973.
This submission on a plain reading of these sections, cannot be sustained.
It has been urged with great vehemence that the appellant, Jagjit Singh was granted pardon with regard to case F.I.R. No. 238 of 1985 whereas his name appears as an accused in the other four cases which have been directed to be tried along with above case wherein the facts are almost similar.
The appellant approver in such circumstances should not be examined by the prosecution as a witness in as much as his evidence may be used in the other criminal cases wherein he figures as an accused.
This is against the protection given by Article 2(3) of the Constitution of India.
It has, therefore, been submitted that the order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 directing the State not to examine the approver as a witness should not be set aside.
This contention is also not tenable in as much as once an accused is granted pardon under section 306 of the Code of Criminal Procedure, he ceases to be an accused and becomes a witness for the prosecution.
The only condition imposed by the provisions of the Act is that the approver must make a full and true disclosure of the whole of the circumstances within his PG NO 1100 knowledge relating to the offence and to every other concerned, whether as principal or abettor, in the commission thereof.
So long as the Prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court.
This has been made very clear by this Court in the case of A.J. Peiris vs State of Madras, AIR 1954(SC) 616 wherein it has been observed that: ". .We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness.
" We have already held hereinbefore that sub section 4 of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court.
So the appellant who has been granted pardon in case F.I.R. No. 238/85 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question.
It will be pertinent to mention here Section 132 of the which lays down that: "A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.
Proviso Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly.
Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution PG NO 1101 nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer.
The provisions of proviso to Section 132 of the clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly.
In view of this provision, the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis.
On the other hand, he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case.
This submission of the respondent is, therefore, not tenable.
It is pertinent to refer in this connection the decision of this Court in Laxmipat Choraria and Ors.
vs State of Maharashtra.
wherein it has been observed by Hidayatullah, J as he then was that: ". .
Under section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind.
The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can ii be prove i against him in any criminal proceeding except a prosecution for giving false evidence by such answer.
" So Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him.
For the reasons aforesaid, the appeal is allowed.
The judgment and order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 is hereby set aside.
R.S.S. Appeal allowed.
|
Many explosions took place in May 1985 in Delhi and Uttar Pradesh killing many persons.
Consequently, a number of cases were registered.
In Delhi, FIR No. 238 of 1985 was registered wherein the respondent and another accused turned approvers and were granted pardon under section 306 of the Code of Criminal Procedure, 1973.
Both these approvers however resiled from their statements in the Court of the Committing Magistrate.
Four Criminal cases pending in Meerut were later transferred by the Supreme Court to the Court of the Chief Metropolitan Magistrate, Delhi, to be tried along with the case arising out of FIR No. 238 of 1985.
In the supplementary committal proceedings in case FIR No. 238 of 1985, the respondent objected to his being summoned as an approver on the ground inter alia that he could not be examined as a witness in the case because he was figuring as an accused person in the other four cases on the same facts and circumstances, which were being jointly tried.
The Chief Metropolitan Magistrate dismissed the application.
The High Court allowed the respondent 's revision petition and directed the State not to examine the respondent as an approver in case F.I.R. No. 238 of 1985.
In the appeal before this Court, it was inter alia contended that the prosecution could not examine the respondent as a witness because he had cast away the pardon granted to him.
Allowing the appeal, HELD: 1.
The pardon granted to the respondent was accepted by him and he was examined as a prosecution witness in the Court of the Committing Magistrate, though he resiled from his statement there.
[1097C] PG NO 1093 PG NO.
1094 2.
It is a mandate of the provisions of the Criminal Procedure Code to the prosecution to examine the approver to whom pardon had been granted as a witness both in the Committing Court as well as in the trial court.
[1097E] 3.
Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offencc and to every other concerned whether as principal or abettor, in the commission thereof.
It is because of this mandate that the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him, till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court.
[1097H; 1098A B] 4.
The respondent who has been granted pardon in case F.I.R. No. 238 of 1985 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question.
[1100D] In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor vs Shandino Bhaniperto, AIR 1940 (Sind) 114 referred to.
Once an accused is granted pardon under section 306, he ceases to be an accused and becomes a witness for the prosecution.
So long as the prosecution does not certify that he has failed to make a full and true disclosure of the whole of the circumstance within his knowledge relating to the offence, he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court.
[1099H; 1100A B] A.J. Peiris vs State of Madras, AIR 1954 (SC) 616 referred to.
A witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to incriminate him directly or indirectly.
[1100G] 7.
The proviso to section 132 of the Indian Evidence Act clearly protects a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly.
[1101A] PG NO.
1095 8.
The apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused was without any basis.
On the other hand, he was absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver.
[1101B C]
|
Appeal No. 524 of 1967.
Appeal from the judgment and order dated July 19, 1966 of the Madhya Pradesh High Court in Misc.
Petition No. 33 of 1965.
P. Ram Reddy and section section Khanduja, for the appellant.
I. N. Shroff, for the respondents.
Shyamala Pappu, C. L. Somesekhar and Vineet Kumar, for the intervener.
The Judgment of the Court was delivered by Hidayatullah C.J.
The appellant, who appeals :by certificate granted by the High Court of Madhya Pradesh, was appointed as Assistant Surgeon on probation, for one year by the Board of Directors, Hindustan Steel Ltd.
,Ranchi with effect from October 22, 1959.
After completing his period of probation he was employed on a contract for 5 years.
exhibit P 3 is the Contract of Service which he entered into with the Company.
Under the terms of the contract there.
was a further period of probation.
During the period of probation the Company could terminate his service without notice and without assigning any reason.
On the completion of the period of probation, either side could terminate the contract by 3 months ' notice without assigning any reason.
The Company could also terminate the employment by 'giving in lieu of notice, three months ' salary.
This term was .applicable till three months immediately before the end of the period of 5 years.
If a notice terminating the service was not ven three months before the close of the end of 5 years the contract was automatically extended till the incumbent became superannuated on reaching the age of 55 years.
The appellant passed the probation period and he was en titled to three months ' notice if his services were to be terminated.
The Company maintains certain set, of Rules governing the employment of its workmen, in addition to the Standing.
Orders of.
Company.
exhibit P 4 represents the procedure for imp sing major penalties and for punishment and appeal.
These are .extracts from the Disciplinary and Appeal Rules.
On September 17, 1964 the appellant.
was on duty in the Medical Out Patients Department.
He examined one Mrs. 365 Holey I who complained of cold, headache and weakness.
It appears that Mrs. Holey complained of some misbehaviour on the part of the appellant and her husband reported the matter to the Chief Medical Officer of the Bhilai Steel Plant where the appellant was then posted.
The Chief Medical Officer asked for the explanation of the appellant on September 21, 1964, but the appellant denied the allegation.
Some enquiry was then held.
The appellant in his appeal submits that he was not given a copy of the written complaint received from Mr. and Mrs. Holey.
On October 5, 1964 some witnesses were examined in the presence of the appellant.
Two days previously the statements of Mr. and Mrs. Holey were also recorded.
The enquiry was being held by the Commercial Manager.
The appellant then sent a notice to Mr. and Mrs. Holey charging them with defamation and actually filed a suit on November 17, 1964 demanding damages.
On December 15, 1964 the General Manager ter minated his services with effect from March 15, 1965, that is to say, after the expiry of three months ' notice under the contract.
It was stated in the order that the services were being terminated in terms of his employment.
The appellant thereupon filed a petition under article 226 of the Constitution in the High Court of Madhya Pradesh claiming inter alia that his services were wrongly terminated without giving him the protection granted by article 311 of the Constitution.
He also complained of breach of the principles of natural justice inasmuch as the enquiry was not proper.
His contention was that although the action was ostensibly taken according to the terms of the contract of employment, he was really punished and he was entitled, therefore, to the protection of article 3 1 1 of the Constitution.
The Company resisted the ground by saying that article 311 was not applicable to the appellant inasmuch as he was employed by a Corporation and neither belonged to the civil service of the Union nor held a civil post under the Union.
The High Court in its judgment ruled that the protection of article 311 of the Constitution was not available in the case because the appellant was not entitled to it.
It appears that this was the only point urged in the High Court.
In the appeal before us attempt was made to enlarge the case by arguing other points, namely, that the enquiry was not properly conducted, that the principles of natural justice were violated and that the appellant had no opportunity of defending himself.
None of these points is touched upon in the High: Court 's judgment and it appears that in the High Court only the constitutional question was raised.
Otherwise, one would expect the High.
Court to have said something about it, or the appellant to have said so in the application for certificate or in 366 the proposed grounds filed with that, application.
We decline to allow these fresh grounds to be urged.
The question that arises in this case is : whether the em ployeesof a Corporation such as the Hindustan Steel Ltd., are entitledto the protection of article 31 1 ? This question can only be answered in favour of the appellant if we hold that the appellant held a civil post under the Union.
It was conceded before us that the appellant could not be said to belong to the civil service of the Union or the State.
article 31 1, on which this contention is based, reads as follows : "31 1.
Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.
(1) No person who is a member of a civil service of the Union or an all India service or a civil service or a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2)No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him; Provided that this clause shall not apply (a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (b)where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that some reasons, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause; or (c) where the President or Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity.
(3)If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of the Authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final." 367 Clause (2) of the article, which gives the protection opens with the words "no such person as aforesaid" and these words take one back to clause (1) which describes the person or persons to whom the protection is intended to go.
Clause (1) speaks of (i) persons who are members of (a) a Civil Service of the Union, or (b) an All India Service or (c) a Civil Service of a State, or (ii) hold a civil post under the Union or a State.
(a), (b) and (c) refer to the standing services which have been created in the Union and the States and which are permanently maintained in strength.
In addition to the standing services there are certain posts which are outside the permanent services.
The last category in article 311(l) therefore speaks of such posts on the civil side as opposed to the military side.
Incumbents of such posts also receive protection.
In the present case the appellant did not belong to any of the permanent services.
He held a post which was not borne on any of the standing services.
It was, however,, a civil post as opposed to a military post.
So far the appellant 's case is clear but the clause speaks further that such posts must be under the Union or a State.
The question thus is whether the servant employed here can be said to have held the post under the Union or a State ? The appellant contends that since Hindustan Steel Limited is entirely financed by the Government and its management is directly the responsibility of the President, the post is.
virtually under the Government of India.
This argument ignores some fundamental concepts in relation to incorporated companies.
In support of the contention that the post must be regarded as one under the Union the appeliant relies on some obiter observations of a single Judge in M. Verghese vs Union of India and others( 1).
In that case the petitioners were drivers working for the Durgapur Project under Hindustan Steel Limited.
The learned Judge considered the question by analysing the set up of Hindustan Steel Limited.
He found that it was a Government company and a private limited company, although it did not include in its name any notice Jr that it was a private company.
He referred in detail to the various provisions in the Articles of Association as also in the Indian Companies Act which rendered the ordinary company law in applicable in certain respects and conferred unlimited powers.
of management on the President of India and his nominees.
He also found that Hindustan Steel Limited was entirely owned by the Union of India.
From this the learned Judge wished to infer that Hindustan Steel Limited was really a department of" the Government but he did not express this opinion and decided 368 the case on another point.
The appellant contends that the conclusion which the learned single Judge did not draw in the Calcutta case is the conclusion to draw in this appeal.
We must, according to him, hold that there is no difference between Hindustan Steel Limited and a Department of the Government and that the service under Hindustan Steel Limited is a service under the Union.
On the other hand, in State of Bihar vs Union of India and Anr.(1) Hindustan Steel Limited was not held to be a "State" for purposes of article 131.
The question whether Hindustan Steel Limited was subject to the jurisdiction of the High Court under articles 226 and 227 was left open.
In dealing with the above conclusion, reference was made to the incorporation of Hindus tan Steel Limited as an independent company and thus a distinct entity.
In Praga Tools Corporation vs C. V. Imanual and Ors.(2) it was pointed out that a company in which 88 % of ,the capital was subscribed by the Union and the State Governments could not be regarded as equivalent to Government because being registered under the Companies Act it had a separate legal existence and could not be said to be either a Government Corporation or an industry run by or under the authority of the Union Government.
Similar views were also expressed in the High Courts.
In Lachmi and Others vs Military Secretary to the Government of Bihar( '), the expression "civil post under the Union or the State" was held to mean that the civil post must be in the control of the State and that it must be open to the State to 'abolish the post or regulate the conditions of .service.
Although the case concerned a Mali employed in Rai Bhavan, it was held that it was not a post under the State even though the funds of the State were made available for paying, his salary.
In a later case Subodh Ranjan Ghosh vs Sindhri Fertilizers and Chemicals Ltd.( ') the employees of the Sindhri Fertilizers were held not entitled to the protection of article 31 1.
Our brother Ramaswami (then Chief Justice) noticed that the corporation was completely owned by the Union Government; that the Directors were to be appointed by the President of India who could also issue directions.
He nevertheless held that in the eye of law the company was a separate entity and had a separate legal existence.
In our judgment the decision in the Patna case is correct.
It has also the support of a decision re ported in Ram Babu Rathaur vs Divisional Manager, Life Insurance Corporation of India(5) and another in Damodar Valley , 'Corporation vs Provat ROY( ').
Our brother Ramaswami relied (1)Civil Appeals Nos.
512 513 etc.
of 1969 decide on 19.9.1969.
(2) Civil Appeal No. 612 of 1966 decided on February 19, 1969.
(3) (4) A.I.R. 1957 Pat.
(5) (6) LX C.W.N. 1023.
369 in particular upon an English case Tamlin vs Hannaford(1).
In that case it was held in relation to a business that although the minister was really incharge, the corporation was different from.
the Crown and the services of the corporation were not civil services.
Justice P. B. Mukherjee of the Calcutta High Court, to.
whose judgment we referred earlier distinguished the English, case by pointing out certain differences between the Corporation in that case and Hindustan Steel Limited.
He pointed out that (a) in the English Corporation no shareholders were required to, subscribe the capital or to have a. voice in the affair, (b) the capital was raised by borrowing and not by issuance of shares, (c) the loss fell upon the consolidated fund and (d) the corpo ration was non profit making.
In our judgment these differences rather accentuate than diminish the applicability of the principle laid down in the English case to our case.
The existence of shareholders, of capital raised by the issuance of shares, the lack of connection between the finances of the corporation and the consolidated fund of the Union rather make out a greater independent existence than that of the corporation in the English case.
We must, therefore, hold that the corporation which is Hindustan Steel Limited in this case is not a department of the Government nor are the servants of it holding posts under the State.
It has its independent existence and by law relating to Corporations it is distinct even from its members.
In these circumstances, the appellant, who was an employee of Hindustan Steel Limited, does not answer the description of a holder of " a civil post under the Union ' as stated in the article.
The appellant was not entitled to the protection of article 311.
The High,, Court was therefore right in not affording him the protection.
The appeal fails and is dismissed but in the circumstances of the,case we make no order about costs.
G.C. Appeal dismissed. , (1) [1950] 1 K.B.D. 18.
|
The services of the appellant as Assistant Surgeon in the Hindustan Steel Ltd., Ranchi were terminated purportedly in terms of his contract of employment.
In a petition under article 226 he claimed that the termination was wrongful inasmuch as it was really by way of punishment and article 311 of the Constitution had not been complied with.
The company resisted the ground by saying that article 311 was not applicable to the appellant since he was employed by a corporation and neither belonged to the civil service of the Union nor held a civil post under the union.
The High Court dismissed the ' appellant 's petition.
In appeal before this Court by certificate, the appellant contended that since Hindustan Steel was entirely financed by the Government and its management was directly the responsibility of the President, the post was virtually under the Government of India.
HELD : (i) The protection of article 311(2) is available to the categories of persons mentioned in cls. (a)(b) and (c) of article 311(l).
The appellant did not fall in the categories mentioned in cls, (a) and (b).
He did hold a civil post as opposed to a military post but cl.
(c) further required that it must be under the Union or a State.
In view of the existence of shareholders, of capital raised by the issuance of shares, and the lack of connection between the finances of the corporation and the Consolidated Fund of the Union, it must be held that Hindustan Steel Ltd. was not a department of the Government nor were the servants of it holding posts under the State.
It had its independent existence and by the law relating to corporations it was distinct even from its members.
In these circumstances the appellant, as an employee of Hindustan Steel Ltd., did not answer the description of a holder of 'a civil post under the Union ' as stated in article 31 1.
The High Court was therefore right in not affording him the protection of that Article.
[367 D; 369 C E] State of Bihar vs Union of India, C.A. Nos.
512 513/69 dt.
19 9 1969 and Praga Tools 'Corporation vs C. V. Imanual & Ors.
C.A. No. 612 1966 dt.
19 2 1969, applied.
Subodh Raman Ghosh vs Sindhri Fertilizers and Chemicals Ltd. A.I.R. 1957 Pat. 10, approved.
M. Verghese vs Union of India & Ors.
A.I.R. 1963 Cal.
421, Lachmi and Ors.
vs Military Secretar to the Government of Bihar, Ram Babu Rathaur vs Divisional Manager, Life Insurance Corporation of India, , Damodar Valley Corporation V. Provat Roy, ILX C.W.N. 1023 and Tamlin vs Hannaford, [1950] 1 K.B.D. 18, referred to.
364 (ii)The contentions sought to be raised by the appellant regarding the validity of the departmental enquiry against him were not touched upon in the High Court 's judgment nor mentioned in the proposed grounds filed with the application for certificate.
The appellant could not be allowed to urge them for the first time in this Court.
|
eview Petition No. 16 of 1960.
519 Petition for Review of this court 's Judgment and order dated April 26, 1960, in Civil Appeal No. 64 of 1956.
A. V. Viswanatha Sastri, R. Ganapathy Iyer and Gopalkrishnan, for the petitioners.
K. N. Rajagopala Sastri, and P. D. Menon, for respondent.
November 23.
Das, J., delivered his own Judgment.
The Judgment of Kapur and Hidayatullah, JJ. was delivered by Hidayatullah, J. section K. DAS, J. I had taken a view different from that of my learned brethren when this appeal was heard along with Pringle Industries Ltd., Secunderabad vs The Commissioner of Income tax, Hyderabad (1), and that view was expressed in a very short judgment dated April 26, 1960.
Now, we have had the advantage of hearing a very full argument with regard to the facts of the appeal, and I for myself have had the further advantage and privilege of reading the judgment which my learned brother Hidayatullah, J., is proposing to deliver in this appeal.
I have very carefully considered the question again with reference to the facts relating thereto and, much to my regret, have come to the conclusion that I must adhere to the opinion which I expressed earlier.
My view is that the facts of this case are indistinguishable from the facts on which the decision of the Privy Council in Mohanlal Hargovind vs Commissioner of Income tax, C.P. and Berar(2) was rendered, and on the principles laid down by this court in Assam Bengal cement Co., Ltd. vs The Commissioner of Income tax, West Bengal (3), it must be held that the expenditure of Rs. 6111/ in this case was on revenue account and the respondent firm was entitled to the allowance which it claimed.
520 The short facts are these.
The respondent firm carried on a business in the purchase and sale of conch shells (called chanks).
It used to acquire the stock of conch shells (1)by purchase from the Fisheries purchase from the Fisheries Department of the Government of Madras and (3) by fishing for and gathering such shells from the sea.
It disposed of the stock so acquired at Calcutta, the different between the cost price and selling price less expenses being its profit made in business.
On November 9 1945 it took on lease from the Director of Industries and Commerce, Madras, the exclusive right.
liberty and authority to fish for, take and carry away "chank" shells in the sea off the coast line of the South Arcot District including the French Kuppama of Pondicherry.
The boundary of the area within which the right could be exercised was given in a schedule to the lease.
The lease was for a period of three years from July 1, 1944 to June 30 1947 on a consideration of an yearly rent of section 6111/ to be paid in advance.
Clause 3 of the lease contained the material terms there of and may be set out in full.
The lesser hereby convenants with the lesson as follows: (i) To pay the rent on the day and in manner aforesaid.
(ii) To deliver to the Assistant Director of Pearl and Chank Fisheries, Tuticorn all Velampuri shells that may be obtained by the lessee upon payment of their value as determined by the Assistant Director.
(iii) To collect chanks caught in nets and by means of diving as well.
In the process of such collection of shells not to fish chank shells less than 2/1/4 inches in diameter and if any chank shells less than 2/1/4 inches in 521 diameter be brought inadvertently to shore, to return at once alive to the sea all such undersized shells.
(iv) Not at any time hereafter to transfer or underlet or part with possession of this grant or the rights and privileges hereby granted or any part thereof without the written consent of the lessor.
(v) At the end or sooner determination of the term hereby created peaceably and quietly to yield to the lesson the rights and privileges hereby granted, and (vi) To report to the Assistant Director of Pearl and Chank Fisheries (South), Tuticorn the actual number of shells kept unsold in different stations after the expiry of the lease period.
For the assessment year 1946 47, the respondent firm submitted a return of its income to the Income tax Officer, Karaikudi Circle, showing its income from sale of chanks purchased from divers at Rs. 7194/ by sale of chanks purchased from Government Department at Rs. 23, 588/ and Rs. 2819/ by sale of chanks gathered by themselves (through divers) after deducting Rs. 6111/ being the rent paid to Government under the contract referred to above.
It sought to deduct Rs. 6111/ from its profits from business on the ground that this was an expenditure not of a capital nature but wholly and exclusively laid out for the purpose of business under section 10(2)(xv) of the Income tax Act.
This claim was disallowed by the Income tax Officer and on appeal by the Appellate Assistant Commissioner.
On further appeal to the Appellate Tribunal the respondent firm contended that the 522 decision of the Privy Council in Mohanlal Hargovind vs Commissioner of Income tax(1)applied to this case inasmuch as the payment was to secure the stockin trade for its business.
The Appellate Tribunal was of the opinion that the Privy Council decision covered the case, but felt itself bound by the decision of the Full Bench of the Madras High Court in K. T. M. T. M. Abdul Kayum Hussain Sahib vs Commissioner of Income tax, Madras (2).
The Tribunal acceded to the demand for a reference to the High Court, and accordingly referred the following question to the High Court for its decision. "Whether on the facts and circumstances of the case the payment of the sum of Rs. 6111/ made by the assessee under the terms of the agreement entered into with the Director of Industries and Commerce, Madras on 9th November, 1945 was not an item of revenue expenditure incurred in the course of carrying on the business of the assessee and, therefore, allowable under the provisions of section 10 of the Indian Income tax Act?" The reference first came before a Division Bench and was then referred to a Full Bench.
By its judgment dated April 2, 1953 the Full Bench answered the question in favour of the respondent firm.
On a certificate of fitness granted by the High Court the Commissioner of Income tax, Madras, brought the present appeal to this Court.
In Assam Bengal Cement Co., Ltd. vs The Commissioner of Income tax (3), this Court referred to the decision in Benarsidas Jagannath.
In re.(4) and accepted the following broad principles for the purpose of discriminating between a capital and a revenue expenditure.
523 (1) The outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment [See Commissioners of Inland Revenue vs Granite City Steamship Company Ltd.(1)].
Such expenditure is regarded as on capital account, for it is incurred not in earning profits but in setting the profit earning machinery in motion.
In my opinion this test does not apply in the present case where no profit earning machinery was set in motion.
(2) Expenditure may be treated as properly attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade.
[See Atherton vs British Insulated and Helsby Cables Ltd. (2)].
In elucidation of this principle it has been laid down in several decisions that by "enduring" is meant "enduring in the way that fixed capital endures" and it does not connote a benefit that endures in the sense that for a good number of years it relieves the assessee of a revenue payment.
In Robert Addie & Sons Collieries Ltd. vs Commissioners of Inland Revenue (3) Lord Clyde formulated the same test in these words: "What is 'money wholly and exclusively laid out for the purposes of the trade ' in a question which must be determined upon the principles of ordinary commercial trading.
It is necessary accordingly to attend to the true nature of the expenditure, and to ask one 's self the question, is it a part of the Company 's working expenses? is it expenditure laid out as part of the process of profit earning? or, on the other hand, is it a capital outlay? is it expenditure necessary for the acquisition of property or of rights of a permanent character, 524 the possession of which is a condition of carryin on its trade at all?" This test was adverted to by the Privy Council in Tata Hydro Electric Agencies Ltd. vs Commissioner of Income tax(1).In my opinion the application of this test makes it at once clear that the sum of Rs. 6111/ which the respondent firm spent was expenditure laid out as part of the process of profit earning; it was not a capital outlay, that is, expenditure necessary for the acquisition of property or of rights of a permanent character, the possession of which was a condition of carrying on its trade.
Under the contract in question the respondent firm did not acquire any right to immovable property.
It acquired no right in the bed of the sea or in the sea.
The only right conferred on the respondent firm was the right to fish for, gather and carry away conch shells (in motion under the surface of the sea) of a specified type and size.
The respondent firm was under an obligation to return to the sea conch shells less than 2 1/2 inches in diameter.
The business of the respondent firm consisted in buying and selling conch shells.
No manufacturing process was involved in it.
Therefore, the stock in trade of the respondent firm was conch shells.
It secured this stock in trade in many different ways, by purchase from divers, by purchase from Government and private parties, and also by gathering conch shells under the contract in question.
In my opinion, the contract into which the respondent firm entered was merely for securing its stock in trade.
It is indeed true that in considering whether an item of expenditure is of a capital or a revenue nature, one must consider the nature of the concern, the ordinary course of business usually adopted in that concern, and the object with which the expense is incurred.
The true nature of the transaction must be collected from the entire 525 document with reference to all the relevant facts and circumstances.
Having regard to the nature of the respondent firm 's business and the course adopted by it for carrying it on, it appears to me to be rather far fetched to hold that by the contract in question the respondent firm acquired property or right of a permanent character, the possession of which was a condition of carrying on its trade.
To me it seems that the better view, in a business sense, is that the respondent firm merely acquired by means of the contract its stock in trade, rather than a source or enduring asset for producing the stock in trade.
It was argued before us, as it was argued in the High Court, that what was acquired in the present case was the means of obtaining the stock in trade for the business rather than the stock in trade itself.
I am unable to accept this argument as correct.
The contract entered into by the respondent firm was wholly and exclusively for the purpose of obtaining conch shells, which were its stock in trade.
As I have stated earlier, the contract granted no interest in the sea, sea bed, or sea water etc.
It was simply a contract giving the grantee the right to pick and carry away conch shells of a specified type and size which of course implied the right to appropriate them as its own property.
In my opinion, in a case of this nature no distinction can be drawn in a business sense between the right of picking and carrying away conch shells and the actual buying of them.
It is not unusual for businessmen to secure, by means of a contract, a supply of raw materials or of goods which form their stock in trade, extending over several years for the payment of a lump sum down.
Even if the conch shells were stored in a godown and the respondent firm was given a right to go and fetch them and so reduce them into its ownership, it could scarcely have been 526 suggested that the price paid was capital expenditure.
I may explain what I have in mind by giving a simple illustration.
Take the case of a fisher may who sells fish.
Fish is his stock in trade.
He man buy the fish he requires from other persons; or he may obtain the supply of fish he requires by catching the fish of a specified size and type in particular water over a short period under a contract entered into by him and take them away.
I do not think that in a business sense any distinction can be made between the two means of obtaining the stock in trade.
Both really amount to securing the stock in trade rather than acquiring an enduring asset or a permanent right for producing the stock in trade.
And a business man, like the fisher man in the illustration given above, would indeed be surprised to learn that buying of fish for his business is revenue expenditure whereas catching fish in particular water under a contract entered into by him for the purpose of obtaining his stock in trade on payment of a lump sum down, is capital expenditure.
(3) The test whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business does not arise in the present case and need not be considered.
No different principles were laid down by my learned brethren in their decision in Pringle Industries Ltd. vs Commissioner of Income tax(1) and so far as that case is concerned, their decision must hold the field.
The difficulty and difference of opinion that arise now relate to the application of those principles to the facts of the present case.
One is reminded in this case of what Lord Macmillan said in Tata Hydro Electric Agencies Ltd. vs Commissioner of Income tax(2) at page 209: 527 "Their Lordships recognise and the decided cases show how difficult it is to discriminate between expenditure which is and expenditure which is not, incurred solely for the purpose of earning profits or gains.
" Lord Greene (Master of the Rolls) expressed himself more strongly and adverting to the distinction between capital and income, said: "There have been many cases where this matter of capital or income has been debated.
There have been many cases which fall upon the borderline: indeed, in many cases it is almost true to say that the spin of a coin would decide the matter almost as satisfactorily as an attempt to find reasons." [Vide Commissioners of Inland Revenue vs British Salmson Aero Engines Ltd.(1)].
Perhaps, the case before us is not as bad as the cases which the Master of the Rolls had in mind when he made the above observations.
It is, however, a truism that each case must turn upon its own facts.
Nevertheless the decisions are useful as illustrations of some relevant general principles.
The nearest illustration that we can get is the decision of the Privy Council in Mohanlal Hargovind vs Commissioner of Income tax(2).
That decision was binding on the Indian Courts at the time when it was given and as I think that it is still good law and is indistinguishable from the present case, I offer no apology for referring to it in great detail.
The facts of that case were these.
The assessees there carried on a business at several places as manufacturers and vendors of country made cigarettes known as bidis.
These cigarettes were composed of tobacoo rolled in leaves of a tree known as tendu leaves, which were obtained by the assessees by entering into a number of 528 short term contracts with the Government and other owners of forests.
Under the contracts, in consideration of a certain sum payable by instalments, the assessees were granted the exclusive right to pick and carry away the tendu leaves from the forest area described.
The assesees were allowed to coppice small tendu plants a few months in advance to obtain good leaves and to pollard tendu trees a few months in advance to obtain better and bigger leaves.
The picking of the leaves however had to start at once or practically at once and to proceed continuously.
On these essential facts, the Privy Council held that the contracts were entered into by the assessees wholly and exclusively for the purpose of supplying themselves with one of the raw materials of their business, that they granted no interest in land, or in the trees or plants, that under them it was the tendu leaves and nothing but the tendu leaves that were acquired, that the right to pick the leaves or to go on to the land for the purpose was merely ancillary to the real purpose of the contracts and if not expressed would be implied by law in the sale of a growing crop, and that therefore the expenditure incurred in acquiring the raw material was in a business sense an expenditure on revenue account and not on capital, just as much as if the tendu leaves had been bought in a shop.
I can find no distinction which would make any difference between the facts of that case and the facts of the present case.
Let me compare the essential facts of these two cases and see whether there is any difference.
(1) Two of the contracts were taken as typical of the rest by the Privy Council.
One contract was for the period from September 5, 1939 to June 30, 1941 and the other was for the period from October 1, 1938 to June 30, 1941.
Thus one of the contracts was for a period of about two years and the other contract for a period of about three years.
529 In the case under our consideration the period of the contract is three years.
Indeed, there is no vital difference between the periods in the two cases.
(2) In the case before us the contract area is described in a schedule.
In the two contracts which were under consideration by the Privy Council the contract area was also indicated in a schedule.
The boundaries of the forests in which tendu leaves could be plucked were delimited by the schedule.
Same is the case with the contract before us.
The contract area in which conch shells of a specified type and size can be picked and gathered is described in a schedule.
Such description does not mean that the assessee gets any right other than the right to gather conch shells.
In the Privy Council case the assessees were granted no interest in land or in the trees or plants; it was the tendu leaves and nothing but the tendu leaves that were acquired.
In the case before us no interest was given in the sea bed or in the sea water or in any of the products thereof.
Conch shells of a specified type and size and nothing but such conch shells were acquired by the contract.
I do not think that the reference to the coast line off the South Arcot District makes any difference between the present case and the case on which the decision in Mohanlal Hargovind vs Commissioner of Income tax (1) was rendered.
If in the matter of plucking of tendu leaves the expenditure under the contract was, in a business sense, expenditure on revenue account, I fail to see why a similar expenditure for gathering conch shells in motion under the surface of the sea near the coast line should not, in a business sense, be considered as expenditure on revenue account.
This aspect of the case was emphasised by their Lordships in the following paragraph: 530 "It appears to their Lordships that there has been some misapprehension as to the true nature of these agreements and they wish to state at once what in their opinion is and what is not the effect of them.
They are merely examples of many similar contracts entered into by the appellants wholly and exclusively for the purpose of their business, that purpose being to supply themselves with one of the raw materials of that business.
The contracts grant no interest in land and no interest in the trees or plants themselves.
They are simply and solely contracts giving to the grantees the right to pick and carry away leaves, which of course, implies the right to a appropriate them as their own property.
" In the case under our consideration the only right granted to the respondent firm was to take and carry away conch shells of a specified type and size, which of course, implies the right to appropriate them as the respondent firm 's own property.
The right to go into the sea and cast nets etc.
was merely ancillary to the real purpose of the contract.
Nor do I think that the circumstance that the contracts conferred an exclusive privilege or right is a matter of any significance.
In Mohanlal Hargovind vs Commissioner of Income tax (1) the contracts were exclusive and their Lordships stated: "It is true that the rights under the contracts are exclusive but in such a case as this that is a matter which appears to their Lordships to be of no significance.
These observations are as apt in their application to the present case as they were in the case before their Lordships of the Privy Council.
(3) The Privy Council draw a distinction between cases relating to the purchase or leasing of 531 mines, quarries, deposits of brick earth, land with standing timber etc.
On one side and the case under its consideration on the other.
It referred to the decision in Alianza Co. vs Bell(1) and said: ". the present case resembles much more closely the case described and distinguished by Channell, J. at page 673 of the report in Alianza Co. vs Bell of the cost of material worked up in a manufactory.
That side the learned Judge, is a current expenditure and does not become `a capital expenditure merely because the material is provided by something like a forward contract, under which a person for the payment of a lump sum down secures a supply of the raw material for a period extending over several years '.
" In Kauri Timber Co. Ltd. vs Commissioner of Taxes(2) the company 's business consisted in cutting and disposing of timber.
It acquired in some cases timber bearing lands, in other cases it purchased the standing timber.
The leases were for 99 years.
So far as the cases where the land was acquired were concerned there could have been no doubt that the expenditure made in acquiring it was capital expenditure.
In the case of the purchase of the standing timber what was acquired was an interest in land.
The purchasers bought the trees which they could allow to remain standing as long as they liked.
It was pointed out that so long as the timber at the option of the company remained upon the soil, it derived its sustenance and nutriment from it.
The additional growths became ipso jure the property of the company.
In these circumstances it was held that the expenditure was capital expenditure.
In the case before us some reliance was placed by the appellant on the term that shells less than 2 1/4 inches in diameter brought inadvertently to shore had to be returned at once alive to the sea.
532 The argument was that such shells might later grow in size by receiving sustenance and nutriment from sea water and could be later gathered by the respondent firm when they reached the size of 2 1/4 inches in diameter or more.
This, it was argued, brought the present case nearer the decision in Kauri Timber case (1).
I am unable to agree.
It is to be remembered that live shells move under the surface of the sea and they do not remain at the same place, as trees do.
A shell less than 2 1/4 inches in diameter returned alive to the sea may move away from the contract area and may never be gathered by the respondent firm.
In these circumstances the appellant is not entitled to call to his aid the test of "further vegetation" or "sustenance and nutriment" referred to in the Kauri Timber case (1).
From whatever point of view we may look at the case, it seems to me that the facts of the present case are indistinguishable from those of the case in Mohanlal Hargovind vs Commissioner of Income tax(2) In Mohanlal Hargovind 's case (2) the right was to pluck tendu leaves; in our case the right was to gather conch shells of specified type and size.
This distinction, it is obvious, makes no difference.
In the High Court it was contended on behalf of the appellant that Mohanlal Hargovind 's case (2) related to the acquisition of raw materials whereas the present case relates to the acquisition of "chanks" by a dealer who sells them without subjecting them to any manufacturing process, and this distinction, it was contended, made the decision in Mohanlal Hargovind 's case (2) inapplicable to the present case.
The High Court rejected this contention and in my opinion rightly.
I agree with the High Court that on principle and in a business sense, there is no distinction between acquiring raw materials for a manufacturing business and acquiring or purchasing goods by a dealer for the purpose of sale, particularly when there is no question of any excavation 533 etc., in order to win the goods and make such goods parts of the stock in trade, a point which weighed with the Court of Appeal in Stow Bardolph Cravel Co. Ltd. vs Poole (1) and with my learned brethren in Pingle Industries Ltd. V. Commissioner of Income tax (2).
No such point is present in this case.
I have been unable to find any other distinction between the two cases which would make a difference in the application of the principles for discriminating between capital expenditure and revenue expenditure.
To adopt again the language of Lord Green, I see no ground in principle or reason for differentiating the present case from the case in Mohanlal Hargovind vs Commissioner of Income tax (3).
On behalf of the respondent firm a further question was agitated, namely, whether an allowance for the cost of gathering the conch shells by nets etc., should not be given, even though the rent paid under the contract was not allowable, under section 10 (2) (xv) of the Income tax Act and a reference was made in this connection to the decision in Hood Barrs vs Commissioners of Inland Revenue (4).
I do not think that we are concerned with that matter in the present appeal.
The only question which arises for decision is the one referred to the High Court.
I have held that the High Court correctly answered the question which related to the payment of the sum of Rs. 6111/ only.
The question having been correctly answered by the High Court, the appeal fails and must be dismissed with cost.
HIDAYATULLAH, J.
This appeal was heard with Pingle Industries, Ltd., Secunderabad vs The Commissioner of Income tax (5), in which judgment was delivered by us on April 26 1960.
In accordance with the decision in Pingle Industries case (1), 534 this appeal was allowed.
Later, a review petition of (No. 16 of 1960) was filed on the ground that this appeal was not governed by the decision in Pingle Industries case (1), and that as it was not fully argued, it should be reheard.
It is unnecessary to go into the reasons why the rehearing was granted, except to say that there was perhaps a misunderstanding about the concessions made by counsel.
We were, therefore, satisfied that we should grant the rehearing, and have since heard full arguments in this appeal.
K. T. M. T. M. Abdul Kayoom and Hussain Sahib (respondent) is a registered firm, and carries on business in conch shells locally known as "chanks", which are found on the bed of the sea all along the coast line abutting on the South Arcot District.
The respondent took on lease from the Director of Industries and Commerce, Madras "the exclusive right, liberty and authority to take and carry away all chanks founnd in the sea" for a period of three years ending on June 30, 1947.
The consideration was Rs. 6, 111/ per year payable in advance.
For the year of assessment, 1946 47 (the year of account ending June 30, 1945) the respondent in showing its profits from business sought to deduct Rs. 6,111/ on the ground that this was an expenditure not of a capital nature but wholly and exclusively laid out for the purpose of business under section 10 (2) (XV) of the Income tax Act.
This claim was disallowed by the Income tax Officer, and on appeal, by the Appellate Assistant Commissioner.
On further appeal to the Appellate Tribunal, the respondent contended that the ruling of the Privy Council in Mohanlal Hargovind 's case (2) applied to the case, inasmuch as the payment was to secure the stock in trade for its business.
The Appellate Tribunal, though it was of opinion that the Privy Council case applied, felt itself bound by the earlier Full Bench decision of the Madras High 535 Court in K.T.M.T.M. Abdul Kayoom Hussain Sahib vs Commissioner of Income tax, Madras (1) relating to this respondent, and dismissed the appeal.
The Tribunal, however, acceded to a demand for a case, and referred the following question to the High Court for its decision : "Whether on the facts and circumstances of the case the payment of the sum of Rs. 6,111 made by the assessee under the terms of the agreement entered into with the Director of Industries and Commerce, Madras, on 9th November 1945 was not an item of revenue expenditure incurred in the course of carrying on the business of the assessee and, "therefore, allowable under the provisions of section 10 of the Indian Income tax Act".
The reference went before a Divisional Bench, which referred the case for decision of a Full Bench.
The Full Bench held that the case was covered by the Privy Council case above referred to, observing: "In our opinion, the facts in the case before the Judicial Committee are indistinguishable from the facts of the present case.
In one case, the leaves had to be picked from trees by going upon the land, while in the other case the chanks had to be collected and gathered by dividing into the sea.
It is impossible to construe the documents in the present case as conferring any interest in that portion of the sea from which the exclusive right of winning the chanks was conferred upon the assessee.
" The High Court also did not see any difference between raw materials acquired for a manufacturing business and the acquisition of chanks in the present case, and held that the chanks were acquired as the stock in trade of the respondent and the transaction was tantamount to purchase of goods, 536 The High Court, however, certified the case as fit for appeal, and the Commissioner of Income tax has filed this appeal.
The material terms of the agreement in the case are as follows : "1.
The lessor hereby grants unto the lessees the full free and exclusive right, liberty and authority to fish or take and carry away all chank shells in the sea off the coast line of the South Arcot District including the French Kuppams of Pondicherry more particularly described in the schedule hereto to hold the premises to the lessees from the first day of July 1944 for a period of three years ending 30th June 1947 paying therefor the yearly rent of Rs. 6, 111 (rupees six thousand one hundred and eleven only) to be paid yearly in advance, the first payment to be made within fifteen days from the date of intimation of acceptance and the second and third payments to be made on or before the 15th June 1945 and 1946, respectively at the Government Treasury at Tuticorin or Madras.
x x x 3.
The lossee hereby covenants with the lessor as follows : x x x (ii) To deliver to the Assistant Director of Pearl and Chank Fisheries, Tuticorin all Velampuri shells that may be obtained by the lessees upon payment of their value as determined by the Assistant Director.
(iii) To collect Chanks in nets and by means of diving as well.
In the process of such collection of shell not to fish chank shells less than 2 1/4 inches in diameter if any chank shells less than 2 1/4 inches in diameter 537 be brought inadvertently to shore, to return at once alive to the sea all such undersized shells.
(iv) Not at any time hereafter to transfer or underlet or part with possession of this grant or the rights and privileges hereby granted or any part thereof without the written consent of the lessor.
x x x (vi) To report to the Assistant Director of Pearl and Chank Fisheries (South), Tuticorin the actual number of shells kept unsold in different stations after the expiry of the lease period.
" An analysis of the agreement shows that the respondent obtained an exclusive right to fish for "chanks" by the method of diving and nets and to appropriate them except those below 2 inches in diameter, which had to be returned alive to the sea and Velampuri shells which had to be sold compulsorily to Government.
The respondent had also to report to its lessors at the end of the term, the number of shells not sold.
The right was exclusive, but was not capable of being transferred or underlet, and it was for a fairly long period.
The coast line involved was also fairly long.
There is no doubt that the payment of Rs. 6,111/ was an expenditure wholly and exclusively for the purpose of the business of selling shells, just as the payment to the divers and other sundry expenses were.
But an expenditure for the purpose of the business may be of a capital nature, and if it is so, it cannot be claimed as a deduction.
The question is whether this payment was of a capital nature.
What is attributable to capital and what, to revenue has led to a long string of cases here and 538 in the English Courts.
The decisions of this Court reported in Assam Bengal Cement Co., Ltd. vs Commissioner of Income tax and Pingle Industries case (1) have considered all the leading cases, and have also indicated the tests, which are usually applied in such cases.
It is not necessary for us to cover the same ground again.
Further, none of the tests is either exhaustive or universal.
Each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect.
In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo * by matching the colour of one case against the colour of another.
To decide, therefore, on which side of the line a case falls, its broad resemblance to another case is not at all decisive.
What is decisive is the nature of the business, the nature of the expenditure, the nature of the light acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases.
A trader may spend money to acquire his raw materials, or his stock in trade, and the payment may often be on revenue account but not necessarily.
A person selling goods by retail may be said to be acquiring his stock in trade when he buys such goods from a wholesaler.
But the same cannot be said of another retailer who buys a monopoly right over a long period from a producer of those goods.
The amount, he pays to secure the monopoly, through a part of the expenditure to secure his stock in trade is not of the same character as the price he pays in the first illustration.
By that payment, he secures an enduring advantage and an asset which is a capital asset of his business.
In the same way, if a manufacturer buys his raw materials he makes a revenue expenditure, but when he acquires a source from which he would derive his 539 raw materials for the enduring benefit of his business, he spends on the capital side.
Thus, a manufacturer of wollen goods buys his wool buys his raw materials, but when he buys a sheep farm, he buys a capital asset.
There is then no difference between purchase of a factory and the purchase of the sheep farm, because both are capital asset of enduring nature.
The respondent in this case has tried to distinguish Pingle Industries case (1) and to bring its case within the ruling of the Privy Council in Mohanlal Hargovind 's case (2).
When the former case was argued, the attempt was to bring it also within the rule of the Privy Council, but now, the differences between the two cases are recognised and Pingle Industries case (1) is said to be entirely different.
In deciding the present appeal, it is hardly necessary to do more than analyses once again the facts and circumstances of these two cases to show why those two cases were differently decided, and the present case will then be easily disposed of, not on its similarity to another but on its own facts.
We shall begin with the Privy Council.
Mohanlal Hargovind and Co., was a firm of bidi manufacturers, which needs tendu leaves in which tobacco is wrapped to make bidis.
Tendu leaves were thus the raw material of the business.
Tendu leaves can be bought from dealers who sell tendu leaves in a large way.
Now, what did the firm do ? It took leaves of forests with a right to pick the leaves.
This right carried with it the right to coppice small tendu plants and to pollard the tendu trees.
There was, however, no right in the trees or the land and the right to go over the land was merely ancillary.
Looked at from the point of view of business, there was no more than a purchase of the leaves, and the leaves were needed as raw materials of the business.
In deciding the case, the Judicial Committee discounted the right to 540 coppice small tendu plants and to pollard the tendu trees as a very insignificant right of cultivation necessary to improve the quality of the leaves, but which right ranked no higher than the right to spray a fruit tree.
The right of entry upon the land was also considered ancillary to the main purpose of the contract, which was acquisition of tendu leaves and tendu leaves alone, and it was observed that even if this right of going on the land and plucking the leaves was not expressed in the contract, it would have been implied by law.
Their Lordships then observed that the High Court diverted its view from these points, and attached too much importance to cases decided upon quite different facts.
They then observed that "cases relating to the purchase or leasing of mines, quarries, deposits of brick earth, land with standing timber. " were of no assistance, and concluded: "If the tendu leaves had been stored in a merchant 's godown and the appellants had bought the right to go and fetch them and so reduce them into their possession and ownership it could scarcely have been suggested that the purchase price was capital expenditure.
Their Lordships see no ground in principle or reason for differentiating the present case from that supposed." (p. 478) That case thus involved no right in land or trees; the licence to be on the land was merely an accessory right; the right of cultivation was insignificant.
The term was short, and the collection of leaves was seasonal.
Leaves once collected, the operation pro tempore was over till the fresh crop came.
There was thus no acquisition of an enduring asset in the way capital endures; it was more a purchase of crops of two or three successive years shewered on an agreement to ensure the supply of raw materials, 541 Contrast this with the facts of Pingle Industries case (1).
The business of the assessee there, was selling stone slabe called flag stones.
These stones were first won from the quarries and then dressed and shaped and then sold.
Now, what did the assessee do ? It took leases of stone quarries in a large number of villages for twelve years.
Primarily, this was done to obtain stones for its business.
It could have been a contract by which it would have been entitled to so many cubic feet of stones to be extracted in a particular period.
It took long term leases of vast areas in several villages to ensure supplies for a considerable time.
The leases were not limited by quantity, nor did they refer to any stones in particular.
It could take all or it could take none; but it could not have carried away all the stones, if the supply outran its efforts.
The stones were embedded in earth, layer upon layer, and had to be systematically extracted.
Till the stones at the top were removed, it could not remove those at the bottom, and there were still more layers further below.
In there circumstances, no specific quantity having been bought or sold either expressly or impliedly, the stones being immovable property or a part thereof and the contract being long teem contracts, Mohahlal Rargovind 's case (2) was held inapplicable, and it was held that the assessee in Pingle Industries case (1) had acquired an enduring asset and the expenditure was on capital account.
These cases between them show adequately the dividing line, which exists between capital expenditure and revenue expenditure.
To determine on which side of the line the particular expenditure falls, one may often put himself the question posed by Lord Clyde in Robert Addie and Sons Collieries Ltd. vs Commissioners Inland Revenue (3) 542 "It it part of the Company 's working expenses, is it expenditure laid out as part of the process of profit earning ? or, on the other hand, is it capital outlay, is it expenditure necessary for the acquisition of property or of rights of a permanent character, the possession of which is a condition of carrying on its trade at all?" The same question was again posed by the Judicial Committee in Tata Hydro Electric Agencies, Ltd. vs Commissioner of Income tax (1).
The answer to this question in each of the two case of Mohanlal Hargovind (2) and Pingle Industries (3) is entirely different.
The difference can be noticed easily, if we were to read here what Channell, J. said in Alianza Co. Ltd. vs Bell (4): "In the ordinary case, the cost of the material worked up in a manufactory is not a capital expenditure, it is a current expenditure and does not become a capital expenditure merely because the material is provided by something like a forward contract, under which a person for the payment of a lump sum secures a supply of the raw material for a period extending over several years. .If it is merely a manufacturing business, then the procuring of the raw material would not be a capital expenditure.
But if it is like the working of a particular mine, or bed of brick earth and converting the stuff into a marketable commodity, then, the money paid for the prime cost of the stuff so dealt with is just as much capital the money sunk in machinery or buildings.
" The first part of the observation is applicable to Mohanlal Hargovind 's case (2) and the latter part, to Pingle Industries case (3).
What is said of a manufacturing concern is equally applicable to a non manufacturing business.
It is the quality of the payment taken with what is obtained, that is decisive of the character of the payment.
543 We may now pass on to the facts of the case before us.
The respondent carried on the business of selling chanks.
It obtained its supplies from divers, from whom it purchased the chanks, and having got them, perhaps cheap, it resold them at a profit.
This is one mode in which it carried on its business.
In this business, it was directly buying its stock in trade for resale.
The other method was to acquire exclusive right to fish for chanks by employing divers and nets.
The business then changed to something different.
The sale was now of the product of another business, in which divers and equipment were first employed to get the shells.
It thus took leases of extensive coastline with all the right to fish for chanks for some years.
The shells were not the subject of the bargain at all, as were the tendu leaves; but the bargain was about the right to fisht.
There can be no doubt that what it paid the divers when it bought chanks from them with the view of reselling them was expenditure laid out wholly and exclusively for the purpose of its business, which was not of a capital nature.
That business was buying goods and reselling them at a profit.
But a different kind of business was involved when it went in for fishing for chanks.
To be able to fish for chanks in reserved waters it had to obtain the right first.
It, therefore took lease of that right.
To Mohanlal Hargovind, the leaves were raw materials, and that firm preferred to buy a number of crops over years rather than buy them as it went along.
Hence the remark that the leaves were bought, as if they were in a shop.
Under the lease which the respondent obtained, it had a right to take only chanks of particular dimensions and shape, but it had to fish for them and obtain them first.
The rest of the chanks were not its property.
The smaller chanks had to be returned alive to the sea, and Velampuri chanks had to be compulsorily sold to the state.
Of Course, the smaller chanks put back into the sea 544 would grow, and if fished later, be its property to take, but till they grow, it had not claim.
The chanks were on the bed of the sea.
Their exact existence was not known, till the divers found them, or they got netted.
Chanks which were there one day might have been washed back into the deep sea, and might never be washed back into a place where they would be within reach.
Similarly, other chanks not there one day might come within reach on another day.
All these matters make the case entirely different from the case of a purchase from the divers.
In obtaining the lease, the respondent obtained a speculative right to fish for chanks which it hoped to obtain and which might be in large quantities or small, according to its luck.
The respondent changed the nature of its business to fishing for chanks instead of buying them.
To be able to fish, it had to arrange for an area to fish, and that arrangement had to be of some duration to be effective.
This is not a case of so much clay or so much salt petre or a dump of tailings or leaves on the trees in a forest.
The two modes in which the respondent did the business furnish adequate distinguishing characteristics.
Here is an agreement to reserve a source, where the respondent hoped to find shells which, when found, became its stock in trade but which, insitu, were no more the firm 's than a shell in the deepest part of the ocean beyond the reach of its divers and nets.
The expenses of fishing shells were its current expenses as also the expenses incurred over the purchase of shells from the divers.
But to say that the payment of lease money for reserving an exclusive right to fish for chanks was on a par with payments of the other character is to err.
It was possible to say of the former, as it was possible to say of the tendu leaves in Mohanlal Hargovind 's case (1), that the chanks were bought because the money paid was the price of the chanks.
But it would be a straining of the imagination to say that the amount paid 545 for reserving the coastline for future fishing was the price of chanks, with which the respondent did its business.
That amount was paid to obtain an enduring asset in the shape of an exclusive right to fish, and the payment was not related to the chanks, which it might or might not have brought to the surface in this speculative business.
The rights were not trasferable, but if they were and the firm had sold them, the gain, if any, would have been on the capital side and not a realising of the chanks as stock in trade, because none had been bought by the firm, and none would have been sold by it.
In our opinion, the decision of the High Court, with all due respect, was, therefore, erroneous, and the earlier decision of the Full Bench of the same High Court was right in the circumstances of the case.
In the result, the appeal is allowed; but there will be no order about cost.
BY COURT.
In accordance with the majority judgment of the Court, the appeal is allowed, but there will be no order about costs.
|
The assessee firm carried on the business in purchase and sale of conch shells.
It obtained a lease for 3 years for gathering specified types of shells from the sea along the coastline abutting on the South Arcot District.
It sought to deduct the amount paid as lease money from its profits from business on the ground that this was an expenditure not of a capital nature but wholly and exclusively laid out for the purpose of business.
under section 10(2)(xy) of the Income Tax Act.
^ Held, (per kapur and Hidayatullah, JJ., Das, J. dissenting) that the expenditure was capital expenditure and could not be deducted from the profits.
The business of the assessee was buying and selling shells but when it took the lease it went in for a new speculative business of fishing for shells.
The amount paid for reserving the vast coastline for future fishing was not price paid for obtaining the stock in trade i.e. shells with which assessee did his business.
The amount was paid to obtain an enduring asset in the shape of an exclusive right to fish and the payment was not related to the shells.
Mohanlal Hargovind vs Commissioner of Income tax, C. P. & Berar, , distinguished Pringle Industries Ltd., Secunderabad vs Commissioner of Income tax, Hyderabad, [1960] 3 section C. R. 681, applied.
Per Das, J. The expenditure was not capital expenditure and was deductible from the profits.
It was not an expenditure for the acquisition of property or of rights of a permanent character, the possession of which was necessary for carrying on of the assessee 's trade By this lease the assessee acquired its stocks in trade rather than a source or enduring asset for producing the stock in trade.
Mohanlal Hargovind vs Commissioner of Income tax, C. P. & Berar , applied.
Pringle Industries Ltd., Secunderabad vs Commissioner of Income tax, Hyderabad, , distinguished.
|
( By Sri K.Nageshwarappa, HCGP for R-1;
Sri.C.N.Raju, Advocate for R-2)
This Criminal Revision Petition is filed under Section 397(1)
read with Section 401 of Cr.P.C. praying to call for records, allow
the Revision Petition and set aside order dated 4.8.2017 passed by
the learned V Addl. District and Sessions Judge, Mandya in
S.C.No.20/2017, in so far discharging the respondent
No.2/accused No.3 for the offence punishable under Section 302,
493, 494, 496, 120-B, 201 R/w Section 34 of IPC in the interest of
1. State of Karnataka by
( By Sri.K.Nageshwarappa, HCGP for R-1;
Sri.C.N.Raju, Advocate for R-2)
This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to direct any other investigating authority to investigate
the case in Cr.No.400/2015 which is renumbered as
S.C.No.20/2017 pending on the file of the V Addl. District and
Sessions Judge, Mandya for offences punishable under Section
493, 494, 496, 120(B), 302, 201 r/w 34 of IPC in the interest of
Residing at Kalenahalli Village,
High Court of Karnataka at Bangalore,
This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to set aside the order dated:22.08.2019 passed by the
V Additional District and Sessions Judge at Mandya in
S.C.No.20/2017 arising out of crime No.400/2015 of Mandya Rural
Police by allowing this petition in the interest of justice.
The Criminal Revision Petition and Criminal Petitions are
having been heard through Physical Hearing/Video Conferencing
Hearing and reserved for orders on 21.07.2022, coming on for
pronouncement this day the Court made the following:
The respondent No.1- complainant-Police has charge
sheeted respondent No.2 i.e., accused No.3 - Smt.Mamatha
R., who is respondent No.2 in Criminal Revision Petition
No.206/2018 and Criminal Petition No.711/2018. She is also
the petitioner in Criminal Petition No.7026/2019. A charge
sheet was filed by respondent No.1-Police in Crime
No.400/2015, for the offences punishable under Sections
302, 493, 494, 496, 120-B, 201 read with Section 34 of
Indian Penal Code, 1860, (hereinafter for brevity referred to
as `IPC'). An application under Section 227 of Code of
Criminal Procedure, 1973 (hereinafter for brevity referred to
as `Cr.P.C.'), filed by said Smt.Mamatha R., (accused No.3)
in S.C.No.20/2017, pending in the Court of learned V
Addl.District & Sessions Judge, Mandya (hereinafter for
brevity referred to as `Sessions Judge's Court'), came to be
allowed by the order of the Sessions Judge's Court dated
04.08.2017 and accused No.3 came to be discharged for the
offences above mentioned.
2. Challenging the said order, CW-2 K.C.Ramu @
Ramanna, the father of the deceased K.R.Manjunatha and
father-in-law of accused No.3-Smt.Mamatha R., has filed
Criminal Revision Petition No.206/2018, under Section 397(1)
read with Section 401 of Cr.P.C.
Very same CW-2 K.C.Ramu @ Ramanna has filed
Criminal Petition No.711/2018, under Section 482 of Cr.P.C.
seeking a direction to any other investigating authority to
investigate the case in Crime No.400/2015, which is
later numbered as S.C.No.20/2017 pending in the Sessions
After the discharge of accused No.3 by the Sessions
Judge's Court vide its order dated 04.08.2017, the
complainant-State has filed an application under Section 319
of Cr.P.C. on 22.08.2019. The Sessions Judge's Court issued
summons to the said Smt.Mamatha R., on the application.
Aggrieved by the said order of the Sessions Judge's Court,
said Smt.Mamatha R., has filed Criminal Petition
No.7026/2019 under Section 482 of Cr.P.C.
3. The respondent No.1-State is being represented by
learned High Court Government Pleader. The respondent-
Smt.Mamatha R., is being represented by her counsel.
4. The records in S.C.No.20/2017 were called for and
the same are placed before this Court.
5. Since all these matters have arisen out of the very
same Sessions Case No.20/2017, all these matters are
connected with each other and taken up to hear the common
arguments and to pass a common order.
6. Heard the arguments from both side. Perused the
materials placed before this Court.
For the sake of convenience, the parties would be henceforth
referred to as per their rankings before the trial Court.
7. After hearing both side, the points that arise for my
consideration are,-
(1) Whether the order dated 04.08.2017, passed
in S.C.No.20/2017 by the Sessions Judge's Court is
perverse warranting interference at the hands of this
deserves to be allowed with a direction for an
investigating agency other than the Karnataka State
Police to investigate in Crime No.400/2015 in the 1st
respondent-Police Station?
(3) Whether the order dated 22.08.2019, passed
in S.C.No.20/2017 by the Sessions Judge's Court
ordering issuance of summons to the proposed accused
No.3 therein deserves to be set aside?
8. The case of prosecution is that, on 25.08.2015, in the
afternoon, the respondent-Police received an information
about the presence of a dead body near V.C. canal, which
was closed to Kalenahalli. The police after visiting the spot,
taken out the dead body and noticed that it had piercing
injuries on the back of the head and stomach and also the
legs, hands and neck of the dead body were tied with a rope.
Thereafter, on the same day, at about 5.30 p.m., upon an
information of one Sri H.Anand Kumar, the Police Officer,
Crime No.400/2015 came to be registered in the respondent-
Police Station against unknown persons for the offences
punishable under Sections 302, 201 of IPC. After
investigation, the respondent-Police filed charge sheet
against the three accused, including Smt.Mamatha R., the
petitioner in Criminal Petition No.7026/2019, for the above
said offences.
9. The summary of the charge sheet is that the
deceased was one Sri K.R.Manjunatha. He married
accused No.3 Smt.Mamatha R., on 04.03.2009. Out of their
marriage, they got a girl child by name Bhandavya. On the
date 09.10.2013, deceased K.R.Manjunatha left his house.
Thereafter, his whereabouts were not known till 2015. When
said K.R.Manjunatha returned back to his house in April
2015, he came to know that his wife Mamatha R., (accused
No.3), had married to accused No.1 Manjunath Y.D. @
Sketch Manju @ Manju. The deceased K.R.Manjunatha had
requested said accused No.1 to give the custody of his
daughter Bhandavya back to him. The accused No.1 and
accused No.3 thinking that so long deceased K.R.Manjunatha
is alive, they wont have peace in life, hatched a conspiracy to
cause his death. Accordingly, accused No.1 engaged accused
No.2 to kill K.R.Manjunatha. Accordingly, accused Nos.1 and
2 took the deceased K.R.Manjunatha with them and made
him to consume liquor and put him in a car and caused his
murder by inflicting multiple pierce injuries upon him with a
knife and in order to destroy the evidence of the incident,
took the dead body in the same car for some more distance
and threw it in V.C. canal near Hulikere. Thus, they have
committed the alleged offence.
10. Learned counsel for the petitioner in Criminal
Revision Petition No.206/2018 and Criminal Petition
No.711/2018 in his argument submitted that CW-30 –
Smt.Lakshmi, the mother of the deceased, apart from giving
the details of the marital life of the deceased with accused
No.3, has also stated about the second marriage of accused
No.3 with accused No.1 and has specifically expressed her
suspicion that accused No.1 and accused No.3 with the help
of others, have taken her son some where, killed him and
dumped his body in V.C. canal. He further submitted that
CW-31 Nataraj, the friend of the deceased also spoken about
the marital life of accused No.1 with accused No.3 and the
second marriage of accused No.3 with accused No.1. He too
has expressed his belief that accused No.3 was involved in
the death of the deceased.
Learned counsel further submitted that CW-8 Sukanya
is the neighbour of accused Nos.1 and 3 and she has also
spoken about she seeing accused No.1 and accused No.3
living together as her neighbour as husband and wife.
11. These evidences clearly make out a prima facie case
that accused No.3, apart from marrying with accused No.1,
has also involved in the commission of the murder of her first
husband deceased K.R.Manjunatha. However, the trial Court
opining that the offence punishable under Section 494 of IPC
cannot be investigated by the police and it could not notice
any tangible material to attract Section 120-B of IPC, has
allowed the application filed by accused No.3 filed under
Section 227 of Cr.P.C., which is erroneous, as such, the
Criminal Revision Petition deserves to be allowed.
He further submitted that during the course of
investigation, the Investigating Officer since has not recorded
the statement of Bhandavya, the daughter of the deceased
and accused No.3, the investigation has not been done
properly, as such, further investigation to record the
statement of said Bhandavya is required, for which, Criminal
Petition No.711/2018 deserves to be allowed.
12. Learned counsel for respondent No.2 in Criminal
and for the petitioner in Criminal Petition No.7026/2019 i.e.,
for accused No.3, in his argument submitted that none of the
charge sheet witnesses have stated about the involvement
of accused No.3 in the alleged commission of crime. There
are no proof for the second marriage between accused Nos.1
and 3. Further stating that if Criminal Revision Petition is allowed,
his Criminal Petition No.7026/2019 becomes infructuous, learned
counsel prayed for dismissal of Criminal Revision Petition
No.206/2018 and Criminal Petition No.711/2018.
13. Learned High Court Government Pleader who was
directed to file his written arguments, has filed his written
arguments, wherein he has contended that there are ample
materials to prosecute accused No.3 for the offences. There
are sufficient materials to show that she had undergone
second marriage with accused No.1 and hatched a conspiracy
to eliminate her first husband deceased K.R.Manjunatha. It
is further stated by the learned High Court Government
Pleader that since the State did not challenge the order of the
trial Court allowing the IA. filed by accused No.3 under
Section 227 of Cr.P.C. and after recording of evidence of few
witnesses, it noticed that there are incriminating materials
against accused No.3, as such, the prosecution filed an
application under Section 319 of Cr.P.C. in the trial Court,
upon which, the summons has been ordered against accused
No.3. He orally submitted that if the Criminal Revision
Petition, which he supports, is allowed, his application under
Section 319 of Cr.P.C. pending in the trial Court become
14. The deceased K.R.Manjunatha married the original
accused No.3 Smt.Mamatha R., on 04.03.2009. The couple
got a small child born to them out of their wedlock by name
Bhandavya and the said child was aged about six years as on
the date of the alleged incident. Said K.R.Manjunatha was
said to have left his house without intimation to anybody due
to the debt incurred for his vices. After lodging the police
complaint, said K.R.Manjunatha was said to have traced by
the police. His father K.C.Ramu (CW-2) was said to have
cleared his debts. CW-2 is also shown to have stated that, at
the instance of his second son, K.R.Mahesha (CW-3), the
family property was said to be partitioned. The property
going to the share of deceased K.R.Manjunatha is shown to
have been made in the name of his daughter Bhandavya.
According to CW-2, once again on 09.10.2013, his son
K.R.Manjunatha was found missing, in which connection, a
complaint was lodged with the police on 15.11.2013. His
wife i.e., Smt.Mamatha R., and their daughter Bhandavya
were started living in the house of CW-2. However, later at
the instance of maternal uncle of said Mamatha R., the said
Mamatha R., (original accused No.3) was shown to have
married to accused No.1 Y.D.Manjunatha. Later in April
2015, K.R.Manjunatha, the missing person, was said to have
returned to his house and after coming to know that his wife
Mamatha R., had married to accused No.1 and was residing
with him, he started seeking the custody of his daughter
Bhandavya from her. It is in that connection, in order to get
rid of K.R.Manjunatha, who was frequently visiting accused
Nos.1 and 3 and pestering them to give custody of his
daughter Bhandavya, all the three accused, including
Mamatha R., hatched a conspiracy and killed K.R.Manjunatha
and threw his dead body into V.C. canal.
The father of the deceased i.e., CW-2 K.C.Ramu,
brother of the deceased i.e., CW-3 K.R.Mahesha, mother of
the deceased CW-30 Smt.Lakshmi, are shown to have given
their statements before the Investigating Officer on the
above lines.
15. Apart from the above witnesses, CW-4 Papanna,
CW-5 Thimmegowda and CW-6 Shivanna, are shown to have
stated before the Investigating Officer about the second
marriage of Mamatha R. (original accused No.3) with accused
No.1. CW-8 Sukanya is shown to have stated before the
Investigating Officer that accused No.1 and accused No.3
Mamatha R., were residing together as her neighbour.
Apart from these witnesses, CW-22 Nandisha, who is
none else than the elder brother of Mamatha R. (accused
No.3) is also shown to have stated about they performing the
second marriage of Mamatha R. with accused No.1.
16. The charge sheet witnesses in the additional charge
sheet CW-42 K.B.Prakash is shown to have given his
statement stating that it was him who as a Purohit,
performed the marriage of accused No.1 and Mamatha R.
CW-43 S. Siddesh and CW-44 K.B. Kumaraswamy in
the additional charge sheet are shown to have given their
statement stating that both of them have attended the
marriage of Mamatha R., (accused No.3) with accused No.1.
Thus, at this stage, there are ample materials to
prosecute original accused No.3 Mamatha R. for the offence
punishable under Section 494 of IPC.
The Sessions Judge's Court observing that an offence
punishable under Section 494 of IPC cannot be investigated
by the police, has proceeded to ignore the ample materials
available before it to prosecute accused No.3 Mamatha R., for
the alleged offence.
17. Learned counsel for the revision petitioner relying
upon the judgment of Hon'ble Apex Court in
State of Orissa –vs- Sharat Chandra Sahu and another,
reported in (1996) 6 SCC 435, submitted that police are not
debarred from investigating non-cognizable cases and include
them in the charge sheet, more particularly, Section 494 of
In Sharat Chandra Sahu's case (supra), the police had
filed a charge sheet for the offence punishable under Section
498-A of IPC as also under Section 494 of IPC. The
respondent No.1 therein filed a petition under Section 482 of
Cr.P.C. before the Orissa High Court seeking quashing of the
proceedings and charges framed against him. The High
Court partly allowed the petition with the finding that since
respondent No.2, the wife who had made the complaint in
writing to the Women's Commission about respondent No.1
contracting the second marriage, but, not personally herself
filed complaint under Section 494 of IPC, on which
cognizance could not have been taken by the learned
Magistrate in view of provisions contained in Section 198(1)
of Cr.P.C. Consequently, the charge framed by the learned
Magistrate under Section 494 of Cr.P.C. was quashed, but,
the charge under Section 498-A of IPC was maintained and
the petition under Section 482 of Cr.P.C. to that extent was
dismissed. The same was challenged by the State of Orissa
before the Hon'ble Apex Court. The Hon'ble Apex Court in
Paragraphs-11 and 12 of its judgment observed as below :
" 11. Sub-section (4) creates a legal fiction and
provides that although a case may comprise of
several offences of which some are cognizable and
others are not, it would not be open to the police to
investigate the cognizable offences only and omit the
non-cognizable offences. Since the whose case
(comprising of cognizable and non-cognizable
offences) is to be treated as cognizable, the police
had no option but to investigate the whole of the
case and to submit a charge-sheet in respect of all
the offences, cognizable or non-cognizable both,
provided it is found by the police during investigation
that the offences appear, prima facie, to have been
committed.
12. Sub-section (4) of Section 155 is a new
provision introduced for the first time in the Code in
1973. This was done to overcome the controversy
about investigation of non-cognizable offences by the
police without the leave of the Magistrate. The
statutory provision is specific, precise and clear and
there is no ambiguity in the language employed in
sub-section (4). It is apparent that if the facts
reported to the police disclose both cognizable and
non-cognizable offences, the police would be acting
within the scope of its authority in investigating both
the offences as the legal fiction enacted in sub-
section (4) provides that even a non-cognizable case
shall, in that situation, be treated as cognizable."
With the above observation, the Hon'ble Apex Court
allowed the appeal and the impugned judgment and order
passed by Orissa High Court in so far as it purports to quash
the charge under Section 494 of IPC and the proceedings
relating thereto, was set aside.
18. In Ushaben –vs- Kishorbhai Chunilal Talpada and
others, reported in (2012) 6 SCC 353, the Hon'ble Apex
Court was pleased to observe that, where complaint contains
allegations of commission of offences both under Section
498-A of IPC, as well as Section 494 of IPC, the Court can
take cognizance thereof even on the police report. It further
observed that no fetters can be put on powers of police
preventing them from investigating the complaint alleging
offences both under Section 494 and Section 498-A of IPC.
From the above judgment, it is clear that when a
complaint comprises both cognizable and non-cognizable
offences, the investigating agency i.e., the police are required
to treat all the offences cognizable and proceed to investigate
the case and to submit the charge sheet for all the offences,
cognizable or non-cognizable both, provided it is found by the
police during investigation that offences alleged prima facie
have been committed.
19. In the instant case also, after recording statements
of several of the witnesses, including the one mentioned
above, the Investigating Officer has rightly come to a
conclusion that there are ample materials to file charge sheet
against Mamatha R., (original accused No.3) also for the
offence punishable under Section 494 of IPC. Hence, the
impugned order of the learned Sessions Judge's on the said
point appears to be erroneous.
20. With regard to other offences, including the one
punishable under Section 302 and Section 120-B of IPC are
concerned, no doubt, none of the charge sheet witnesses
appears to have alleged any direct overt act against accused
No.3 - Mamatha R., however, the very case of the
complainant and his family members is that the property that
has come to the share of the deceased K.R.Manjunatha in a
family partition was made in favour of his daughter
Bhandavya as a guardian. The conclusion of the
Investigating Officer in Column No.17 of the charge sheet is
also that the accused in order to take advantage of the
property made in favour of Bhandavya, the daughter of the
deceased, had not only refused to give custody of said
Bhandavya to the deceased, but, also decided to eliminate
him so as to retain the property with them. It is attributing
with the said mens rea on the part of the accused, the charge
sheet has included Section 120-B of IPC also with other
A perusal of the charge sheet papers go to show that
CW-30 - Smt.Lakshmi, the mother of the deceased, has in
her statement before the Investigating Officer accuses the
involvement of her daughter-in-law i.e., Mamatha R.,
(accused No.3) in the murder of her son K.R.Manjunatha.
21. CW-31 - Nataraja, who is shown to be a friend of
deceased K.R.Manjunatha, is shown to have stated before the
Investigating Officer that deceased K.R.Manjunatha was
telling him about his marital life with Mamatha R., and
second marriage of said Mamatha R., with accused No.1 and
also he (deceased) demanding the custody of their child
Bhandavya to him, however, accused No.3 Mamatha R.,
refusing to hand over the custody of the child to the
deceased. He has stated that he believes that accused No.3
Mamatha R., and accused No.1 might have killed the
As observed above, CW-8 Sukanya is shown to have
stated before the Investigating Officer that accused No.1 and
accused No.3 were residing as her neighbour as husband and
wife. Even the elder brother of Mamatha R., (accused No.3)
has also spoken about they performing the second marriage
of Mamatha R., with accused No.1.
22. In the supplementary charge sheet filed by the
police, several of the charge sheet witnesses, including CW-4
Papanna, CW-5 Thimmegowda and CW-6 Shivanna, are
shown to have stated about the marital dispute between the
deceased and accused No.3. Among them, CW-4 Papanna
and CW-5 Thimmegowda are also shown to have conducted a
panchayat and advised the parties.
23. The Investigating Officer is said to have collected
several of the incriminating materials, including motor
vehicles used in the commission of the crime, rope of a larger
length, a plastic rope, a knife with iron handle, blood stained
car-mat, cell phones, DVRs etc., According to the learned
High Court Government Pleader, several of those articles
have got relationship with accused No.3-Mamatha R., and
it is only during the course of the trial, the conspiracy
between the accused can be established by the prosecution.
I do not find any reason to reject the said argument of
learned High Court Government Pleader, particularly in the
instant case when Mamatha R., (accused No.3) was said to
be the wife of deceased K.R.Manjunatha and subsequently
married to accused No.1 - Y.D.Manjunatha and accused No.1
and accused No.3 are said to have been refusing to give the
custody of daughter of the deceased to him only with an
intention to retain the property said to be standing in favour
of Bhandavya, daughter of deceased and accused No.3.
There are all the reasons to believe that there are materials
to subject Mamatha R., (accused No.3) also for trial for all
the alleged offences in the charge sheet.
24. In Hem Chand –vs- State of Jharkhand, reported in
(2008) 5 SCC 113, the Hon'ble Apex Court at Para-9 of its
judgment was pleased to observe that, it is beyond any
doubt or dispute that at the stage of framing of charge, the
Court will not weigh the evidence. The stage for appreciating
the evidence for the purpose of arriving at a conclusion as to
whether the prosecution was able to bring home the charge
against the accused or not would arise only after all the
evidence is brought on record at the trial.
In the instant case also, since it is observed above that
there are sufficient materials to proceed with the trial against
Mamatha R., (original accused No.3), the Sessions Judge's
Court was at error in allowing her application filed under
Section 227 of Cr.P.C. and discharging her from the alleged
offences. As such, the said order deserves to be set aside
and her application filed under Section 227 of Cr.P.C.
deserved to be dismissed.
25. CW-2 K.C.Ramu, the father of the deceased has
filed Criminal Petition No.711/2018, seeking a direction for
any other investigating authority to investigate the case in
Crime No.400/2015, which is the subject matter in
S.C.No.20/2017. As submitted by learned counsel for the
petitioner, the only reason for seeking a fresh investigation is
for the limited purpose of recording the evidence of
Bhandavya, the girl child of the deceased and accused No.3.
Even according to the petitioner, the said daughter is aged
only about six years. When according to the prosecution, the
alleged murder has taken at a place which was away from
the home of accused No.3, where the child was residing, the
said child cannot be expected to speak about the murder of
her father.
Regarding the alleged conspiracy, it is not the case of
the prosecution that in the presence of said girl Bhandavya,
the conspiracy was hatched by the accused. Further more,
the said child was only of about 6 years in her age. For all
these reasons, the investigation cannot be found fault with
and also for the reason of non-recording the statement of
Bhandavya, the girl child of the deceased. As such, I do not
find any reason for allowing Criminal Petition No.711/2008.
26. The matter was proceeded with in the Sessions
Judge’s Court in S.C.No.20/2017, where six witnesses from
PW-1 to PW-6 were examined on behalf of the prosecution.
After recording their evidence, the prosecution has filed an
application under Section 319 of Cr.P.C. seeking inclusion of
discharged accused No.3 in the case and to take cognizance
against her. The Sessions Judge’s Court ordered for issuance
of summons to accused No.3- Mamatha R., on 22.08.2019.
It is challenging the said order, said Mamatha R., has filed
27. Learned counsel for the petitioner for Smt.Mamatha
R., in the said petition in his argument made a submission
that, in case if this Court allows Criminal Revision Petition
No.206/2018, then, his Criminal Petition No.7026/2019
becomes infructuous.
Learned High Court Government Pleader for the
respondent-State also submitted that if Criminal Revision
Petition No.206/2018 is allowed, his application filed under
Section 319 of Cr.P.C. in the Sessions Judge’s Court becomes
infructuous. In view of the fact that the impugned order in
Criminal Revision Petition No.206/2018 is now found to be
perverse and deserves to be set aside, the said Criminal
Revision Petition No.206/2018 deserves to be allowed.
Consequently, the Criminal Petition No.7026/2019 proves to
be devoid of merit and deserves to be dismissed.
28. Accordingly, I proceed to pass the following order:
[i] Criminal Revision Petition No.206/2018 is
allowed. The order dated 04.08.2017, passed by
the learned V Addl. District & Sessions Judge,
Mandya, in S.C.No.20/2017, in so far as
discharging respondent No.2 (accused No.3)
Smt.Mamatha R., for the offences punishable
under Sections 302, 493, 494, 496, 120-B, 201
read with Section 34 of IPC, stands set aside.
[ii] The application filed by said accused No.3
Smt.Mamatha R., under Section 227 of Cr.P.C.
stands dismissed.
[iii] The Criminal Petition No.711/2018 and
Criminal Petition No.7026/2019 stands
dismissed.
In view of disposal of the main petitions, the pending
IA.No.3/2018 in Crl.RP 206/2018 does not survive for
Registry to transmit a copy of this order to both the trial
Court as also the Sessions Judge’s Court along with their
respective records forthwith.
|
The Karnataka High Court has set aside an order of the Sessions Court discharging a woman accused of bigamy and hatching a conspiracy with her second husband to murder her first husband. A single judge bench of Justice Dr. HB Prabhakara Sastry observed that there is sufficient material to proceed with the trial against Mamatha R., who allegedly killed her first husband to retain...
The Karnataka High Court has set aside an order of the Sessions Court discharging a woman accused of bigamy and hatching a conspiracy with her second husband to murder her first husband.
A single judge bench of Justice Dr. HB Prabhakara Sastry observed that there is sufficient material to proceed with the trial against Mamatha R., who allegedly killed her first husband to retain a property devolved upon their minor daughter in family partition.
"It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on record at the trial."
A charge-sheet was filed against Mamatha for offences punishable under Sections 302 (Murder), 493, 494, 496 (Bigamy), 120-B (Criminal conspiracy) and 201 (Causing disappearance of evidence of offence) read with Section 34 of IPC.
She was said to have married one Manjunath YD, also an accused, during the period her first husband (now deceased) went missing. However, when the first husband returned after a span of some 1.5 years and demanded custody of their daughter, the duo allegedly hatched a conspiracy to cause his death.
The trial Court had allowed Mamatha's application for discharge on the ground that investigation was improper, the offence of Bigamy (non-cognizable) cannot be investigated by the Police and no tangible material has been brought on record to show any criminal conspiracy.
Findings
Upon a perusal of the chargesheet and witnesses statements recorded by the police, the Court noted that prosecution had produced ample material to prosecute prosecute Mamatha for the offence punishable under Section 494 IPC.
"When a complaint comprises both cognizable and non-cognizable offences, the investigating agency i.e., the police are required to treat all the offences cognizable and proceed to investigate the case and to submit the charge sheet for all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that offences alleged prima facie have been committed."
So far as the offence of Murder is concerned, the Court observed that even though none of the chargesheet witnesses alleged any direct overt act against Mamatha, however, the allegations w.r.t. retention of partition property attributes "mens rea" and thus, it is only during the course of the trial that the conspiracy, if any, between the accused can be established by the prosecution.
"Since it is observed above that there are sufficient materials to proceed with the trial against Mamatha R., (original accused No.3), the Sessions Judge's Court was at error in allowing her application filed under Section 227 of Cr.P.C. and discharging her from the alleged offences. As such, the said order deserves to be set aside and her application filed under Section 227 of Cr.P.C. deserved to be dismissed."
Case Title: K.C.Ramu @ Ramanna v. State of Karnataka
Case No: CRIMINAL REVISION PETITION No.206 OF 2018 C/w. CRIMINAL PETITION No.711 OF 2018 AND CRIMINAL PETITION No.7026 OF 2019.
Date of Order: 10TH DAY OF AUGUST 2022
Appearance: Advocate Ashok B.Patil for petitioner; HCGP K.Nageshwarappa, for R-1; Advocate C.N.Raju, for R-2
|
ivil Appeal No. 850 of 1966.
870 Appeal by special leave from the judgment and decree dated March 5, 1965 of the Bombay High Court in First Appeal No. of 1963.
section Sorabli, Bhuvanesh Kumari and J.B. Dadachanji, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by special leave fro.m the judgment of the.
Bombay High Court dated March 5, 1965 in Appeal No. 415 of 1963.
Shalkh Hassan Ibrahim (hereinafter referred to as the missing seaman) was employed as a deck hand, a seaman of category II on the ship sections "Dwarka" which is owned by the British India Steam Navigation Company Limited of which the appellant is the Agent.
The Medical Log Book of the shop shows that on December 13, 1961 the missing seaman complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically.
The Medical Officer on board the ship prescribed some tablets for the missing seaman and he reported fit for work on the next day.
On December 15, 1961, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets.
The official Log Book of the ship shows that on December 16, 1961 when the ship was in the Persian Gulf the missing seaman was seen near the bridge of the ship at about 2.30 a.m.
He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed.
At 6.15 a.m. he was found missing and a search was undertaken.
At 7.35 a.m. a radio message was sent by the Master of the ship.
saying: "One seaman missing between Khoramshahr and Ashar STOP May be in river STOP All ships please keep look out".
The ship arrived alongside Ashar Jetty at 8 a.m. when a representative of Messrs Gray, Mackenzie & Co. Ltd., who are the agents for the British India Steanm Navigation Co. Ltd., in the Persian Gulf was informed that the said seaman was missing.
The representative in turn passed on the information to the local police and the Port authorities.
The last entry in the log book shows that at 4 p.m. an inquiry was held on board the ship by the local police and the British Consul General.
On a suggestion made by the latter, the personal effects of the missing seaman were checked and sealed by the Consulate authorities for being deposited with the Shipping Master, Bombay.
On February 20, 1962 the respondent filed an application under section 3 of the Workmen 's Compensation Act (Central Act 18 of 1923) (hereinafter referred to as the Act) claiming compensation of Rs. 4,810/ for the death of his son, the missing seaman, which 871 according to him, occurred on account of a personal injury caused by an accident arising out of and in the course of his employment.
The appellant put in a written statement on April 26, 1962 and disputed the respondent 's claim on the ground that there was nothing to show that the seaman was in fact dead, that the death, if any, was not caused in the course of the employment, that in any event the death could not be said to have been caused by an accident which arose out of employment and that the probabilities were more consistent with a suicidal death than with an accidental death.
But the appellant did not lead oral evidence at the trial of the claim.
The Additional Commissioner, however, inspected the ship on January 23, 1963.
By his judgment dated February 6, 1963 held that there was no evidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the missing seaman was caused by an accident which arose out of employment.
In the course of his judgment the Additional Commissioner observed as follows: "Now in the present case what is the evidence before me ? It is argued on behalf of applicant that I must presume that the man fell down accidentally.
From which place did he fall down ? How did he fall down ? At what time he fell down ? Why was he at the time at the place from which he fell down ? All these questions, it is impossible to answer.
Am I to decide them in favour of the applicant simply because his 'missing ' occurs in the course of his employment ? In my opinion there is absolutely no material before me to come to a conclusion and connect the man 's disappearance with an accident.
There are too many missing links.
Evidence does not show that it was a stormy night.
I had visited the ship, seen the position of the Bridge and deck and there was a bulwark more than 31/2 feet.
The man was not on duty.
Nobody saw him at the so called place of accident.
In these circumstances I am unable to draw any presumption or conclusion that the man is dead or that his death was due to an accident 'arising out of his employment.
Such a conclusion, presumption or inference would be only speculative and unwarranted by any principle of judicial assessment of evidence or permissible presumptions.
" The Additional Commissioner, however, negatived the contention of appellant that the death, if any, was caused by the seaman 's voluntary act.
The respondent preferred an appeal on April 17, 1963 to the High Court from the judgment of the Additional Commissioner dated February 6, 1963.
At the hearing of the appeal it was agreed that the appellant would pay to the 872 respondent a sum of Rs. 2,000/ as and by way of compensation in any event and irrespective of the result of the appeal.
The respondent agreed to accept the sum of Rs. 2,000/ .
But in view of the serious and important nature of the issues.
the High Court proceeded to decide the questions of law arising in the appeal.
By his judgment dated March 5, 1965 Chandrachud J., allowed the appeal and reversed the judgment of the Additional Commissioner and granted the application for compensation.
The view taken by Chandrachud J., was that the death of the seaman in this case must be held to have occurred on account of an accident which arose out of his employment.
The principal question that arises in this appeal is whether the accident arose in the course of employment and whether it arose out of employment within the meaning of 'section 3 of the Act which states: "(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable (i) the workman having been at the time thereof under the.
influence of drink or drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.
To come within the Act the injury by accident must arise both out of and in the course.
of employment.
The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it.
" The words "arising out of employment" are understood to mean that "during the course.
of the employment, injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable 873 to believe the workman would not otherwise have suffered." In other words there must be a causal relationship between the accident and the employment.
The expression "arising out of employment" is again not confined to the mere nature of the employment.
The expression applies to employment as such to its nature, its conditions, its obligations and its incidents.
If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises 'out of employment '.
To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.
In Lancashire and Yorkshire Railway Co. vs Highley(1) Lord Sumner laid down the following test for determining whether an accident "arose out of the employment": "There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance.
It is this: Was it part of the injured person 's employment to hazard, to suffer, or to do that which caused his injury ? If yea, the accident arose out of his employment.
If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment.
To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his.
employment, that the workman should have acted as he was.
acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
" In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment.
But this does not mean that a workman who comes to court for relief must necessarily prove: it by direct evidence.
Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference.
On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference.
It is of course impossible to.
lay down any rule as to the degree of (1) 874 proof which is sufficient to justify an inference being drawn, but ' the evidence must be such as would induce a reasonable man to draw it.
Lord Birkenhead L.C. in Lancaster vs Blackwell Colliery Co. Ltd., ( 1 ) observed: "If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant.
But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour." In cases of the unexplained drowning of seamen, the question has often arisen as to whether or not there was evidence to justify the inference drawn by the Arbitrator that the seaman met his death through accident arising out of and in the course of his employment.
The question was considered by the House of Lords in Kerr or Lendrum vs Ayr Steam Shipping Co. Ltd.(a) in which the steward of a ship, which was in harbour, was lying in his bunk, when he was told by the captain to prepare tea for the crew.
He was shortly afterwards missing, and the next day his dead body, dressed ' in his underclothes only, was found in the sea near the ship.
The bulwarks were 3 feet 5 inches above the deck.
The steward was a sober man, but was subject to nausea.
Murder and suicide were negatived by the Arbitrator, who drew the inference that the deceased left his bunk, went on deck, and accidentally fell overboard and was drowned.
He accordingly held that the accident arose out of and in the course of his employment as steward.
The Court of Sessions reversed his decision on the ground that there was no evidence to support it.
The House of Lords (Earl Lorebum, Lord Shaw of Dunfermline and Lord Parmoor, Lord Dunedin and Lord Atkinson dissenting), however, upheld the decision of the Arbitrator on the ground that, although upon the evidence it was open to him to have taken a different view, his conclusion was such as a reasonable man could reach.
"I should state my main proposition thus," said Lord Shaw of Dunfermline, "that we in this House are not considering whether we would have come to the same conclusion upon the facts stated as that at which the (1) 1918 W.C. Rep. 345.
(2) [1195] A.C. 217.
875 learned Arbitrator has arrived.
Our duty is a very different, a strikingly different one.
It is to consider whether the Arbitrator appointed to be the judge of the facts, and having the advantage of hearing and seeing the witnesses, has come to a conclusion which could not have been reached by a reasonable man." Lord Parmoor said: I wish to express no opinion either way on the reasonableness of the finding in itself as long as it is possible finding for a reasonable man," whilst Earl Loreburn observed that they should regard these awards in a very broad way and constantly remember that they were not the tribunal to decide." In the case of unexplained drowning of seamen, the English Court of Appeal have drawn some very fine distinctions.
In Bender vs Owners of S.S. "Zent"(1) the chief cook on board a steamship fell overboard and was drowned while the ship was on the high seas.
He was seen at 5.25 a.m. looking over the side; 5.30 a.m. was his usual time for turning out; and he was last seen at 5.35 a.m. going aft.
The weather was line at the time, it was daylight, the ship was steady, and there was no suggestion that the duties of the deceased would lead him into any danger.
There was a 4 ft. rail and bulwark all round the ship and there was no evidence to show how the deceased had fallen overboard.
The County Court Judge drew the inference that his death was caused by an accident arising out of and in the course of his employment, but the Court of Appeal held that there was no evidence to warrant such inference, Cozens Hardy, M.R. pointing out that, although it was conceivable that he might have been engaged on some ship 's work, it was equally conceivable that he had been larking or had committed suicide.
Bender 's case(1) was followed in Marshall vs Owners of S.S. "Wild Rose(2) where an engineer came on board his vessel, which was laying in a harbour basin, shortly after 10 p.m. Steam had to be got up by midnight.
He went below and took off his clothes, except his trousers, shirt and socks.
It was a very hot night, and he subsequently came out of his berth, saying that he was going on deck for a breath of fresh air.
Next morning his dead body was found at the side of the vessel, just under the place where the men usually sat.
It was held by the Court of Appeal, reversing the County Court Judge, that there was no legitimate ground for drawing the inference that the engineer died from an accident ,arising out of his employment.
Farwell, L.J. said: "If an ordinary sailor is a member of the watch and is on duty during the night and disappears, the in ference might fairly be drawn that he died from an acci (1) (2) [1909] 2 K.B. 46.
876 dent arising out of his employment.
But if, on the other hand, he was not a member of the watch, and was down below and came up on deck when he was not required for the purpose of any duty to be performed on deck, and disappeared without our knowing anything else, it seems to me that there is absolutely nothing from which any Court could draw the inference that he died from an accident arising out of his employment." This decision was upheld by the House of Lords by a majority of one (Lord Loreburn, L.C. and Lord James of Hereford dissenting) Lord Shaw of Dunfermline saying: "The facts in every case may leave here and there a hiatus which only inference can fill.
But in the present case, my Lords., the name of inference may be apt to be given to what is pure conjecture.
What did the sailor Marshall do when he left his berth and went on deck ? Nobody knows.
All is conjecture.
Did he jump overboard, walk overboard, or fall overboard ? One can infer nothing, all is conjecture.
Was there an accident at all, or how and why did the deceased unhappily meet his fate ?.
There can be, in my view, nothing dignified with the name of an inference on this subject, but again only conjecture.
" But in Rice vs Owner of Ship "Swansea Vale" (1) where the deceased was a "seaman" in the strict sense of the term that is to say, one whose duty it was to work on deck and not a ship is cook, 'as in Bender 's case, nor an engineer as in Marshall 's case, a different conclusion was arrived at.
In that case the chief officer of a vessel, who was on duty on deck, disappeared from the ship in broad daylight.
No. one saw him fall overboard, but there was evidence that not long before he had complained of headache and giddiness.
It was held, (Buckley, L.J. dissenting) that there was evidence from which the Court might infer that he fell overboard from an accident arising out of and in the course of his employment.
The cases of Bender and Marshall were distinguished, as in those cases the men 's duties were below deck and at the time they lost their lives they had certainly no duties which called them on the deck.
In the House of Lords, Lord Lorebum, L.C. having discussed the various things that might have happened, said: "The other alternatives were suicide or murder.
If you weigh the probabilities one way or the other, the probabilities are distinctly greater that this man perished through an accident arising out of and in the course of his employment.
" (1) 877 In Gatton vs Limerick Steamship Co.(1) a night watchman on board a vessel, whose hours of duty were from 7 p.m. to 7 a.m. when he awoke the crew, was last seen on board at 6 a.m. but on that morning he did not awake the crew.
His cap was.
found on the deck, and his body was found in the harbour some months afterwards.
The County Judge held that it was not proved that the accident arose "out of ' his employment and the Court of Appeal on the ground that this was a finding of fact with evidence to support it, refused to interfere.
Holmes, L.J., however, stated that the County Court Judge might have arrived at a different conclusion of fact, whilst Cherry, L.J., said that, if he had been the Arbitrator, he would have found that the deceased had met with his death by accident arising out of and in the course ' of his employment.
In another similar case Rourke vs Mold & Co. (2) a seaman disappeared during his spell of duty at the wheel in the wheel house in the centre of the flying deck and was not afterwards seen.
The night was rough, the sea choppy but the vessel was steady.
The flying deck was.
protected by a rail.
There was no evidence as to how the man met his death and in spite of the presumption against suicide the County Court Judge was unable to draw the inference that the death was due to accident.
It was held by the Court of Appeal that in the circumstances the conclusion of the County Court Judge was right.
At p. 321 of the Report O 'Brien, L.C. said: "In this case we cannot interfere with the finding of the County Court Judge.
The post of duty of the deceased was at the wheel and to steer a certain course until ordered to change it, but nobody knows how the man disappeared, or how he came to leave his post.
It is conceivable that he may have fallen overboard in such circumstances as to entitle his widow to claim compensation on the ground that his death was due to an accident arising out of and in the course of the employment; but the onus of proof is on the applicant.
That onus is not discharged by asserting that we must assume that the deceased was at his allotted employment when he fell overboard, although the natural inference would be that he was not, and that we should then draw the conclusion that the accident arose out of and in the course of the employment.
" In Simpson V.L.M. & section Railway Co.(3) Lord Tomlin reviewed all the previous authorities and stated the principle as follows: " . from these passages to which I have referred I think this rule may be deduced for application to (1) (2) [1917] 2 It.
Rep. 318 at 321.
(3) 878 that class of case which may be called unexplained accident cases namely, that where me evidence establishes that in the course of his employment the workman properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment.
Such a rule so stated seems to me to be consistent with all the previous decisions of your Lordships ' House including Marshall vs Owners of S.S. Wild Rose(1) where there was some evidence from Which it could be inferred that the seaman who fell overboard had by action of his own outside his employment added a peril to his position.
" In the same case Lord Thankerton expressed the principle in similar language.
Lord Thankerton said at p. 371 of the Report: " . the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the arbitrator is entitled to infer, in the absence of any evidence tending to an opposite conclusion, that the accident arose out of the employment." In a later case in the House of Lords, Rosen vs
S.S. "Querous" :(Owners) Lord Buckmaster explained that in that passage in Lord Thankerton 's speech in Simpson 's case(2) the place referred to was not the exact spot at which the accident may have occurred, but meant, in that case the train on which the workman was traveling and in the later case in the House of Lords the ship on which the workman was employed.
The same principle applies in Indian law as the language of section 3 of the Indian Act is identical with section 1 of the English Workmen 's Compensation Act of 1925.
What are the facts found in the present case ? Shaikh Hassan Ibrahim was employed as a deck hand, a seaman of category II on the ship.
The medical log book of the ship showed that on (1) (2) 879 December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically.
The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day.
On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets.
The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.30 a.m.
He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed.
At 6.15 a.m. he was found missing and a search was undertaken.
The dead body, however, was not found either on that day or later on.
The evidence does not show that it was a stormy night.
The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 31/2 feet.
Nobody saw the missing seaman at the 'so called place of accident.
The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his.
employment.
In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it.
For these reasons we hold that this appeal must be allowed and the judgment of the Bombay High Court dated March 5, 1965 must set be aside.
R.K.P.S. Appeal allowed.
|
S who was employed as a deck hand on a ship was found missing on board.
The respondent filed an application under section 3 of the Workmen 's Compensation Act claiming compensation for the death of S which according to him occurred on account of a personal injury caused by an accident arising out of and in the course of employment.
The Additional Commissioner held that there was no evidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the seaman was caused by an accident which arose out of employment.
The High Court reversed the judgment of the Additional Commissioner.
In appeal to this Court, HELD: The Additional Commissioner did not commit any error of law in reaching his findings and the High Court was not justified in reversing them.
To come within the Act the injury by accident must arise both out of and in the course of employment.
The words "in the course of employment" mean in the course of work which the workman is employed to do and which is incidental to it.
The words "arising out of the employment" are understood to mean that during the course of the employment, injury has resulted from some risk incidental to the duties of the service, which, unless engaged in the duty owing to the master, it is reasonable to believe the workman would not otherwise have suffered.
The expression is not confined to the mere nature of the employment but applies to the employment as such to its nature, its conditions, its obligations and its incidents.
[872 H] Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference.
On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand he may draw an inference from the proved facts so long as it is a legitimate inference.
The evidence must be such as would induce a reasonable man to draw the inference.
[873 H] Lancashire and Yorkshire Railway Co. vs Highley, , Lancaster vs Blackwell Colliery Co. Ltd. 1918 W.C. Rep. 345, Kerr or Lendrum vs Ayr Steam Shipping Ca.
Ltd. , Bender vs Owners of S.S. "Zeni" [1909] '2 K.B. 41, Marshall vs Owners of S.S. "Wild Rose", , Rice vs Owners of Ship "Swansea Vale", [1912] A.C. 238, Gatton vs Limerick Steamship Co. , Rourke vs Hold & Co. [1917] 2 Ir.
Rep. 318 at 321 and Simpson vs L.M. & section Railway Co. , referred
|
No. 3130 of 1981.
(Under Article 32 of the Constitution of India).
Soli J. Sorabjee, Harish N. Salve, K.K. Patel, Ujwal Rana, Rajiv Dutta and K.K. Mohan for the Petitioners.
369 K. Parasaran, Attorney General, B. Datta, Additional Solicitor General, Kuldip Singh, Additional Solicitor Gener al, Ms. A. Subhashini, C.V. Subba Rao, Mrs. Sushma Suri, A. Subba Rao, A.K. Srivastava and P.P. Singh for the Respond ents.
The Judgment of the Court was delivered by PATHAK, CJ.
By this writ petition under article 32 of the Constitution the petitioners seek relief against the imposi tion of customs duty at 150 per cent on their import of edible oils into India.
The petitioners entered into a contract with foreign sellers for the supply of edible oils.
The consignment of edible oils was sent by the ocean going vessel M.V. Kotta Ratu.
The vessel approached Bombay and made its "prior entry" on 4 July, 1981.
It actually arrived and registered in the Port of Bombay on 11 July, 1981.
The petitioners say that the Port authorities at Bombay were unable to allot a berth to the vessel, and as she was under heavy pressure from the parties whose goods she was carrying she left Bombay for Karachi for unloading other cargo intended for that port.
It is alleged that the vessel set out on its return journey from Karachi and arrived in the Port of Bombay on 23 July, 1981 and waited for a berth.
On 4 August, 1981 she was allowed to berth in Princess Docks 'C ' Shed and the Customs Authorities made the "final entry" on that date.
The petitioners point out that when the vessel made its original journey to Bombay and was waiting in the waters of the Port the petitioners presented the Bill of Entry to the Customs authorities on 9 July, 1981, that the Bill of Entry was accepted by the Import Department and an order was passed by the Customs Officer on the Bill of Entry on 18 July, 1981 directing the examination of the consignment.
It is stated that the Customs authorities have imposed customs duty on the import of the edible oils effected by the petitioners at the rate of 150 per cent on the footing that the import was made on 31 July, 1981, the date of "Inward Entry".
The case of the petitioners is that the rate of duty leviable on the import should be that ruling on 11 July, 198 1, when the vessel actually arrived and registered in the Port of Bombay, and that but for the fact that a berth was not available the vessel would have discharged its cargo at Bombay, and would not have left that Port and proceeded to Karachi to return to Bombay towards the end of July, 1981.
Alternatively, the case of the petitioners is that if it be found that the rate of customs duty attracted by the import effected by the petitioners is 150 per cent the levy is unconstitutional 370 and void as a violation of article 14 of the Constitution inasmuch as customs duty at 5 per cent only was levied on the State Trading Corporation on similar Imports of edible oils made by it as an importer.
The petitioners have also challenged the validity of section 15 of the Customs Act, 1961 under which the rate of duty and tariff valuation is deter mined.
To resolve the issue between the parties it is necessary to ascertain the effective date with reference to which customs duty becomes payable on imports into India.
Section 15(1) of the provides: "(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force , (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry in wards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.
" The rate of duty and tariff valuation applicable to the imported goods is governed by cl.
(a) of section 15(1).
In the case of goods entered for home consumption under section 46, it is the date on which the Bill of Entry in respect of such goods is presented under that section.
section 46 provides that the importer of any goods shall make entry thereof by pre senting to the proper officer a Bill of Entry for home consumption in the prescribed form, and it is further pro vided that a Bill of Entry may be presented at any time after delivery of the Import Manifest or an Import report.
The Bill of Entry may be presented even before the delivery of such Manifest if the vessel by which the goods have been 371 shipped for importation into India is expected to arrive within a week from the date of such presentation.
Section 47 empowers the proper officer, on being satisfied that the goods entered for home consumption are not prohibited goods and that the importers had paid the import duty assessed thereon as well as charges in respect of the same, to make an order permitting clearance of the goods for home consump tion.
According to the petitioners, the cargo of edible oil could not be unloaded in Bombay during the original entry of the ship into the Port for want of an available berth, and it is for no fault of the petitioners that the vessel had to proceed to Karachi for unloading other cargo.
Section 15, the petitioners contend, is arbitrary and vague and there fore unconstitutional because it provides no definite stand ard or norm for determining the rate of duty and tariff valuation and does not take into account situation which are uncertain and beyond the control of an importer.
The peti tioners contend that the rate of customs duty chargeable on the import of goods in India is the rate in force on the date when the vessel carrying the goods enters the territo rial waters of India.
The petitioners point out that section 12(1) declares that customs .duty will be levied at the rates in force on goods imported into India, and the expres sion 'India ', they urge, is defined by section 2(27) as including the 'territorial waters of India '.
In other words, the petitioners contend that when the vessel entered the terri torial waters on 11 July, 1981 the rate of customs duty at 12.5 per cent ruling on that date was the rate which was attracted to the import.
In any event, the petitioners contend, the rate should not have been more than 42.5 per cent because that was the rate of customs duty ruling on 23 July, 1981 when the vessel entered the port of Bombay.
To preserve the validity of section 15 the petitioners urge, we must read the expression "the date of entry inwards" in the proviso to section 15(1) as the date on which the vessel enters the territorial waters of India.
Learned counsel for the petitioners says that if this interpretation cannot reasona bly be given to the provisions of section 15(1) then it becomes necessary to question the constitutional validity of section 15 on the ground that the terms of that section are vague and arbitrary, and therefore no recourse can be had to section 15(1).
Considerable reliance has been placed by the peti tioner on Shawney vs M/s. Sylvania and Laxman Ltd., 77 Bom.
L.R. 380 in support of the submission that the taxable event occurs when the vessel enters the territorial waters of India and it is that date which should determine the rate at which import duty can be levied.
It is desirable, 372 we think, to appreciate what was said in that case.
The Bombay High Court held there that the date on which the vessel enters the territorial waters is the relevant date for determining whether the import of goods carried by it falls within the scope of the .
If the import of the goods is exempt from the operation of the Act on that date, the learned Judges said, the provisions of section 15 of the Act will not come into play, and therefore the import will be free from duty.
A distinction was made between a case where the import of goods stands exempted on the date when the vessel enters the territorial waters of India and a case where the import falls within the operation of the Act on that date but the duty is rated at nil or at a certain figure.
The distinction was discussed by a Full Bench of the Bombay High Court in Apar Private Ltd. and Others vs Union of India and others, where Madhava Reddy, C.J., speaking for the Court, observed: "If the goods were wholly exempt from basic customs duty leviable under the , when they entered the territorial waters of India, no basic duty of customs would be leviable thereon even if such exemption were withdrawn under Section 25(1) of the before the goods are releasedfor home c o n s u m p t i o n . . . . . .
. . . . . . . . .Only if the goods were chargeable to some basic customs duty under the , when they entered the territorial waters of India, than the rates in force at the time when the bill of entry is presented or at the time when the goods are sought to be cleared for home con sumption, as the case may be, would be ap plicable and the basic duty would be quanti fied and demanded at those rates." And in Jain Shudh Vanaspati Limited vs S.R. Patankar, Asstt.
Collector of Customs, Bombay and Others, the Bombay High Court proceeded on the basis that where the imported goods were totally exempt from payment of customs duty on the date when the vessel entered the terri torial waters of India, the taxable event was not postponed to the date when the goods were cleared for human consump tion.
In the present case.
there is no dispute that on the date when the vessel first entered the territorial waters of India by July, 198 1 the rate of customs duty was 12.5% on the import of the goods in question and thereafter when the vessel returned from Karachi and entered the 373 territorial waters of India the rate of duty was 42.5%.
We express no opinion on the soundness of the view taken by the Bombay High Court in the cases mentioned above; it is sufficient to point out that on the facts they afford no assistance to the petitioners.
The rate of duty and tariff valuation has to be deter mined in accordance with section 15(1) of the .
Under section 15(1)(a), the rate and valuation is the rate and valua tion in force on the date on which the Bill of Entry is presented under section 46.
According to the proviso, however, if the Bill of Entry has been presented before the entry in wards of the vessel by which the goods are imported, the Bill of Entry shall be deemed to have been presented on the date of such entry inwards.
In the present case the Bill of Entry was presented on 9 July, 1981.
What is "the date of entry inwards" of the vessel? We may refer to the detailed procedure in this matter set forth in the counteraffidavit of Shri R.S. Siddhu, then under Secretary to the Government of India.
Before the arrival of the vessel the Master of the vessel or his Agent informs the Port authorities and the Customs authorities of the probable date of arrival of the vessel.
This information is technically known as presenta tion of the Import General Manifest.
In this Manifest the Master intimates the details with regard to the cargo car ried by the vessel.
In the instant case the Manifest was conveyed by the Steamer Agent on 6 July, 1981 by his letter No. IM/394/81/1116.
Admittedly this intimation or presenta tion of the Manifest on 6 July, 1981 was prior to the arriv al of the vessel.
The presentation of the Manifest can be effected either before the arrival of the vessel or after its arrival in the usual course.
In the forwarding letter dated 6 July, 1981 mentioned above, the Shipping Agent informed the authorities that the ship would be arriving at Bombay 12 July, 1981.
According to the normal procedure, if the intimation or presentation of the Manifest is made on the arrival of the vessel it is accompanied by an applica tion for Entry Inward within 24 hours of arrival.
In the instant case since the vessel was to arrive later there was no application accompanying the letter dated 6 July, 1981.
The vessel arrived on 11 July, 1981.
On receipt of the Manifest a "prior entry" is made in the Register, which is called the Register of Inward/Outward Entry of vessels.
Upon the recording of the "prior entry" a rotation number is given and conveyed to the Shipping Agent or the Master of the vessel.
In the instant case the "prior entry" or rota tion number allotted was 743/PE.
The Customs authorities display daily, on receipt of the Import General 374 Manifests, the details of the vessels on a notice board for the information of importers.
On noticing the arrival or expected arrival of the vessel from the Import General Manifest the importer or his clearing agent files his Bill of Entry.
In this case the Bill of Entry was filed on 9 July, 1981.
An entry with regard to presentation of the Bill of Entry is made in the Import General Manifest against the entry with regard to the consignment belonging to the im porter.
The procedure thereafter is as follows.
A vessel on arrival in the territorial waters has to await the allotment of a berth by the Port Trust.
The Port Trust authorities, on receipt of information about the arrival of a ship, allot a berth, if it is available, for the discharge of the cargo.
In the instant case, since no berth was available, the vessel left for Karachi to dis charge the cargo meant for that Port.
The vessel arrived at Bombay on 23 July, 1981.
Before its arrival, the Steamer Agent had presented a supplementary Manifest on 18 July, 1981 under cover of his letter No. IM/394/81/ 1223.
The "prior entry" made earlier in the Register of Inward Entry remained the same and the rotation number also continued to remain the same.
Against the rotation No. 743 in column No. 3 of the Register of Inward Entry the date of the arrival of the vessel was indicated as 23 July, 1981, and in column No. 2 the date of Inward Entry was mentioned as 31 July, 1981.
On 30 July, 1981 the Master of the vessel had made a decla ration certifying that the vessel could discharge its cargo on 31 July, 1981, and it is on this basis that the Customs authorities granted the Entry Inward to the vessel for the purposes of discharging its cargo.
It is urged on behalf of the petitioners that the import of the goods must be deemed to have taken place on '11 July, 1981, when the ship originally arrived in Bombay Port and registered itself.
The rate of customs duty prevailing on that date was 12.5 per cent, and that, learned counsel contends, should be the rate applicable to the edible oil consignment under section 15 of the Act.
The circumstance that the vessel was unable to secure a berth in the Port of Bombay compelled it to proceed to Karachi to discharge the cargo pertaining to that Port, and but for the non avail ability of the berth she would not have undertaken that voyage but would have continued in Bombay and discharged the edible oil consignment there.
The customs duty which could have been levied then would have been 12.5 per cent.
It is pointed out that the vessel was unable to do so for no fault of the petitioners and a reasonable construction must be given to section 15 taking 375 into account the particular circumstances of the case, so that the vessel must be deemed to have made the "Entry Inwards" on 11 July, 1981.
We do not find it possible to accept this submission.
The provisions of section 15 are clear in themselves.
The date on which a Bill of Entry is presented under section 46 is, in the case of goods entered for home con sumption, the date relevant for determining the rate of duty and tariff valuation.
Where the Bill of Entry is presented before the date of Entry Inwards of the vessel, the Bill of Entry is deemed to have been presented on the date of such Entry Inwards.
In M/s. Omega Insulated Cable Co., (India) Limited vs The Collector of Customs, Madras, Writ Appeal No. 537 of 1969 decided by the Hon 'ble Kailasam and Paul, JJ.
on 9 July, 1975 the Madras High Court addressed itself to the question whether the words in section 15(1)(a) of the Act, viz. "date of entry inwards of the vessel by which the goods are imported" mean "the actual entry of the vessel inwards or the date of entry in the register kept by the department permitting the entry inwards of the vessel." The learned Judges examined the corresponding provisions of the earlier statute and after comparing the provisions of section 15 with those of section 16 of the , and the amendments made from time to time, held that the date of entry inward for the purpose of section 15(1)(a) and the proviso thereto is the date when the entry is made in the Customs register.
We have considered the matter carefully and given due heed to the submissions of learned counsel for the petition ers rounded, inter alia, on the provisions of the Sea Cus toms Act and the amendment made in section 16 of the and we are of opinion that the view taken by the Madras High Court in M/s. Omega Insulated Cable Co. Ltd., (supra) repre sents the correct view.
The amendment made in section 16 of the Act appears to have been made by way of clarification and, in our opinion, does not detract from the conclusion that "the date of entry inwards of the vessel" is the date re corded as such in the Customs register.
In the present case, "the date of inwards entry" is mentioned as 31 July, 1981.1n the absence of anything else, we may take it that the entry was recorded on the date itself.
Accordingly, the rate of import duty and the tariff valuation shall be that in force on 31 July, 1981.
The contention of the petitioners that the rate of import duty and tariff valuation will be that ruling on 11 July, 1981 cannot be sustained and is rejected.
As to the question whether section 15 of the is ultra vires on the ground that arbitrary discretion has been conferred on the 376 customs authorities in the matter of determining the date of inward entry, it seems to us that having regard to the procedure detailed above there is no scope for the submis sion that the provision is invalid.
An entire series of consecutive acts makes up the procedure, and it is reasona ble to presume that each step in the series is completed on time.
In that view of the matter, the challenge to the validity of section 15 must fail.
It is true that an amendment has been made in section 16 in the case of the export of goods, and the rate of duty and tariff valuation applicable to export goods are now specifically referable to "the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation", and it is appar ent that no such amendment has been made in the provisions of section 15.
The omission, it seems to us, is of no consequence when the procedure outlined above is being followed regular ly and consistently.
There is nothing before us to show that in following the procedure the Customs authorities act arbitrarily.
Accordingly, we are of opinion that the claim made by the petitioners must be rejected.
Finally, there remains the contention of the petitioners that the differential treatment meted out to the petitioners by the imposition of a rate of 150 per cent constitutes a violation of Article 14 of the Constitution on the ground that the rate applied to corresponding imports by the State Trading Corporation is 5 per cent only.
This point has already been considered by us, and the contention has been rejected, in our judgment in M. Jhangir Bhatusha etc.
vs Union of India & Ors. etc.
; , pronounced today.
The Writ Petition is dismissed with costs.
R.N.J. Petition dismissed.
|
By way of writ petition under Article 32 of the Consti tution the petitioners sought relief against the imposition of customs duty at 150 per cent on their import of edible oils into India.
Pursuant to the contract entered into by the petitioners with foreign sellers for the supply of edible oils the consignment of edible oils was sent by the ocean going vessel M.V. Kotta Ratu.
The vessel approached Bombay and made its "prior entry" on 4 July, 1981.
It actu ally arrived and registered on 11 July, 1981.
As the port authorities at Bombay were unable to allot a berth to the vessel, the vessel left for Karachi for unloading other cargo intended for that port.
The vessel returned on 23 July 1981 and waited for berth.
On August 4, 1981 she was allowed to berth in Princess Docks 'C ' shed and the Customs authori ties made the "final entry" on that date.
Customs authorities are stated to have imposed duty on the import of edible oil at the rate of 150 per cent on the footing that the import was made on 31 July, 1981, the date of "Inward Entry".
The case of the petitioners was that the rate of duty leviable on the imports should be that ruling on 11 July, 1981, when the vessel actually arrived and registered in the Port Bombay and that but for the fact that berth was not available the vessel would have discharged its cargo at Bombay and would have been liable to pay customs duty at the rate of 12.5% which was the ruling rate on that date i.e., 11 July, 1981.
The petitioners contended that the rate should not have been more than 42.5% because that was the rate of customs duty ruling on 23 July, 1981 when the vessel entered the port of Bombay.
The Court rejecting the claim of petitioners, 368 HELD: The rate of duty and tariff valuation has to be determined in accordance with section 15(1) of the Customs Act.
Under section 15(1)(a), the rate and valuation is the rate and valuation in force on the date on which the Bill of Entry is presented u/s 46.
According to the proviso, however, if the Bill of Entry has been presented before the entry inwards of the vessel by which the goods are imported, the Bill of Entry shall be deemed to have been presented on the date of such entry inwards.
[373B C] The date on which a Bill Entry is presented under section 46 is, in the case of goods entered for home consumption, the date relevant for determining the rate of duty and tariff valuation.
Where the Bill of Entry is presented before the date of Entry Inwards of the Vessel, the Bill of Entry is deemed to have been presented on the date of such Entry Inwards.
[375B] The amendment made in section 16 of the Act appears to have been made by way of clarification and does not detract from the conclusion that "the date of entry inwards of the ves sel" is the date recorded as such in the Customs register.
[375F] In the present case, "the date of inwards entry" is mentioned as 31st July, 1981.
In the absence of anything else, it may be taken that the entry was recorded on that date itself.
Accordingly, the rate of import duty and the tariff valuation shall be that in force on 31st July 1981.
The contention of the petitioners that the rate of import duty and tariff valuation will be that ruling on July 11, 1981 cannot be sustained and is rejected.
[375G] (1)Shawney vs M/s. Sylvania & Laxman Ltd., 77 Bom.
L.R. 380; (2) Apar Private Ltd. & Ors.
vs Union of India & Ors., 185 ; (3) Jain Shudh Vanaspati Ltd. vs S.R. Patankar, Asstt.
Collector of Customs, Bombay & Ors., ; (4) M/s.
Omega Insulated Cable Co., (India) Ltd. vs The Collector of Customs, Madras, approved.
Writ Appeal No. 537 of 1969 decided by the Hon 'ble Kailasam and Paul, JJ.
on 9 July, 1975, referred to.
|
Appeal No. 830 of 1993.
From the Judgment and Order dated 6.4.87 of the Allahabad High Court in Civil Misc.
W.P. No. 20544 of 1986.
section Markandeya for the Appellant 152 Pankaj Kalra for the Respondents.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
The appeal is directed against the judgment and order of a Division Bench of the Allahabad High Court allowing Writ Petition 20544 of 1986 with certain directions.
The first respondent Gem Cap (India) Pvt. Ltd. is a private limited company.
Second respondment is its Managing Director.
At the request of the respondents, the appellant, U.P. Financial Corporation, sanctioned a loan of Rs. 29.70 lakhs.
The terms and conditions of loan and the manner of repayment of the loan are contained in the agreement and hypothecation deeds executed in 1981.
Suffice it to note that loan was repayable in certain specified instalments alongwith interest.
A sum of Rs. 26, 29, 578 was released to the respondents.
The first respondent went into production in December 1982.
Within a few months i.e., in March 1983 its operations ceased.
By an order dated February 21, 1984 the first respondent unit was declared a sick unit.
The respondents did not make any repayment as stipulated in the agreement and hypothecation deeds whereupon the Corporation took steps to take over the unit under Section 29 of the for recovering an amount of Rs. 38.57 lakhs due to it by that date vide notice dated July 10, 1984.
Then started a series of Writ Petitions by the respondents, all designed to stall the appellant from taking over and/or recovering the amount due to it.
It is not necessary to trace the course of the several writ petitions except the one from which the present appeal arises.
Writ Petition 20544 of 1986 was filed questioning the taking over of the first respondent unit by the appellant Corporation under Section 29 of the Act and for a direction to the appellant to reschedule the repayment of debt in accordance with the earlier orders of the High Court.
The writ petition has been allowed with the following directions : "(1) Having regard to the discussion made above we direct the U.P. Financial Corporation : (1) to consider expeditiously the resolution dated 29.1.1986aimed at the rehabilitation of the industrial concern in question in the light of the feasibility report of the U.P. Industrial Consultants Ltd. the Financial aid 153 forthcoming from the Bank of Baroda and other financial institutions and the reports of the managing director of the corporation dated 18.12.85 and 29.1.1986; (2) to restore back possession of the unit to the petition No. 1 forthwith.
The notice dated 11.6.1986 issued by the Corporation under Section 29 of the State Financial Corporation Act, 1951 shall, however, remain alive it being open to the Corporation to proceed further in pursuance thereof in case the rehabilitation deal is given a fair trial but does not bear fruit.
The petition is allowed accordingly with no order, however, as to costs." With great respect to the Learned Judges who allowed the writ petition we feel constrained to say this : a reading of the judgment shows that they have not kept in mind the well recognised limitations of their jurisdiction under Article 226 of the Constitution.
The judgment reads as If they were setting as an Appellate Authority over the appellate Corporation.
Not a single provision of law is said to have been violated.
The exclusive concern of the court appears to be to revive and resurrect the respondent Company, with the aid of public funds, without giving any thought to the interest of public financial institutions.
The approach is : "the Corporafion is supposed to act in the best interest of the industrial concern with the object primarily to promote and advance the industrial activity without, of course, undue involvement or risk of its financial commitment 'section .
It needs no emphasis to say that the Corporation is conceived '.Regional Development Bank with the principal object to accelerate the industrial growth in the State by providing financial assistance mainly to small and smaller of the medium scale industries.
The approach has to be business like in conformity with the declared policy of the State Govt.
If the unit is potentially viable or such as maY be capable of being rehabilitated, it would deserve being administered proper treatment and not lead to its liquidation.
" Here was a company which drew substantial public funds and became sick within three months of its going into production.
One of the main reasons for its sickness appears to be the inter necine fight between the two groups controlling the Company.
The 154 unit was closed.
It was not paying a single pie in repayment of the loan neither the principal nor the interest.
Already a huge amount was due to the appellant.
There was no prospect of its recovery.
And yet other financial corporations were being asked by the court, four years after its closure, to sink more money into the sick unit.
Though a passing reference is made to the financial risk of appellant.
this concern was not translated into appropriate directions.
The Corporation was not allowed to sell the unit when it wanted to in 1984 85.
Now, it is difficult to sell it, because it has been lying closed for about 8 years and more.
The machinery must have become junk.
While the Company could not be revived, the appellant corporation now stands to lose more than a crore of rupees all public money in this one instance.
To continue the factual narration against the judgment of the Allahabad High Court aforesaid (dated April 6, 1987) the appellant filed this appeal and on May 8, 1987 this Court while issuing notice on the SLP directed stay of operation of the judgment of the High court.
After the respondents filed a counter affidavit this Court made the following order on September 18, 1987 : "Stay made absolute with the direction that there shall be no sale of the industrial unit.
Hearing expedited.
To be heard alongwith Civil Appeal No. 568 of 1987.
" The S.L.P. could not be heard finally though it was posted for hearing on certain dates.
On November 13, 1991, the counsel for the respondents made an offer which is recorded in the order of that date.
It reads "This matter is adjourned for 11.12.91.
Mr. Shanti Bhushan, Sr.
Adv., suggests that in view of the lapse of time of more than 5 years the position has changed and the Corporation should now consider the feasibility of taking over the assets in liquidation of the dues by making an assessment and consider relieving the directors from their personal responsibilities to the corporation and the other creditors.
" The subsequent order dated December 12, 1991, however, shows that the appellant corporation refused to bite the bait.
The amount due to it had risen to over a crore of rupees by now.
Whereupon, this Court passed 155 the following order : "The appellant in consultation with the other creditors is permitted to put up the industrial undertaking of the firstrespondent for sale.
It may do so either by public auction or by inviting tenders or by an combination of both.
It may proceed to do so within a period of two months from today.
While permitting the appellant to take steps for the sale, we make it clear that before accepting the offers, the appellant should obtain prior permission of this Court.
List this matter after 10 weeks, i.e., in the first week of March, 92.
" It is clear as to why the unit could not be sold .
On March 13, 1992, this Court passed the following further order: "We have heard learned counsel on both sides.
Apart from the merits of the issues raised, it appears to us that the present impasse is to nobody 's advantage.
The dispute has to be resolved in some meaningful way.
We accordingly direct the respondent Company and Sri K.P. Chaturvedi, who claims to be in charge of the affairs of the Company, to confirm in writing to the petitioner Cor poration within three weeks from today that they unconditionally agree to settle the claims of the.
Financial Corporation at a figure which would represent the principal amount said to be Rs. 26.30 lacs and interest thereon from the inception at 13.5% per year with half yearly rests calculated upto 25.7.1986.
If such an offer is made, the Financial Corporation will assess the merit and acceptability of that offer and take within six weeks thereafter, an appropriate decision including the manner in which and the period over which the payment should be completed, and if the Financial Corporation agrees to grant time for payment, the rate of interest for the deferred period.
The decision taken by the Corporation will be placed before this Court.
156 If, however, any offer, as indicated above, is not communicated by the company or Sri Chaturvedi within a period of three weeks from today, then the Financial Corporation shall be at liberty to initiate, with notice to the respondents, steps for the sale by public auction of the subjectmatter of the security in its favour and to treat and hold the proceeds of sale as substituted security in the place of the subject matter of the security, subject to the final result of this S.L.P. Call this matter in the 3rd week of May, 1992.
" Pursuant to the said order the second respondent, Managing Director of the first respondent Company merely wrote a letter addressed to the appellant Corporation, to the following effect : "We, herewith, attach a photo copy of the captioned order which is self explicit.
We, however, unconditionally agree to abide with the directions given to us by the Hon 'ble Supreme Court.
Further, as the Corporation is aware that the Unit (Company) as well as The Registered Office of the Company, both are in possession of the Corporation, we shall feel obliged if you kindly communicate your views to us at the below given address.
" It is evident that the letter written by the second respondent is not in terms of the order to this Court dated March 13, 1992.
No figure is mentioned nor is it mentioned as to how and in what manner the said huge debt is sought to be repaid by the respondents.
Evidently, the appellant corporation could not pay any heed to such a letter.
When the matter came before this Court the second respondent appeared in person stating that he has discharged his advocate and that he will argue the matter himself.
The matter again came up before us on 19.2.1993 when we heard the appellant 's counsel and the second respondent in person.
We allowed the appeal stating that the reasons would follow.
There are the reasons for the order.
It is true that the appellant Corporation is an instrumentality of the 157 State created under the State Finance Corporation Act, 1951.
The said Act was made by the Parliament with a view to promote industrialisation of the States by encouraging small and medium industries by giving financial assistance in the shape of loans and advances, repayable within a period not exceeding 20 years from the date of loan.
We agree that the Corporation is not like an ordinary money lender or a Bank which lends money.
It is a lender with a purpose the purpose being promoting the small and medium industries.
At the same time, it is necessary to keep certain basic facts in view.
The relationship between the Corporation and the borrower is that of creditor and debtor.
The corporation is not supposed to give loans once and go out of business.
It has also to recover them so that it can give fresh loans to others.
The Corporation no doubt has to act within the four corners of the Act and in furtherance of the object underlying the Act.
But this factor cannot be carried to the extent of obligating the Corporation to revive and resurrect every sick industry irrespective of the cost involved.
Promoting industrialisation at the cost of public funds does not serve the public interest; it merely amounts to transferring public money to private account.
The fairness required of the Corporation cannot be carried to the extent of disabling it from recovering what is due to it.
While not insisting upon the borrower to honour the commitments undertaken by him, the Corporation alone cannot be shackled hand and foot in the name of fairness.
Fairness is not a one way street, mote particularly it? matters like the present one.
The above narration of facts shows that the respondents have no intention of repaying any part of the debt.
They are merely putting forward one or other ploy to keep the Corporation at bay.
Approaching the Courts through successive writ petitions is but a part of this game.
Another circumstance.
These Corporation are not sitting on King Solomon 's mines.
They too borrow monies from Government or other 'financial corporation.
They too have to pay interest thereon.
The fairness required of it must be tempered nay, determined, in the light of all these circumstances.
Indeed, in a matter between the Corporation and its debtor, a writ court has no say except in two situation : (1) there is a statutory violation on the part of the Corporation or (21) Where the Corporation acts unfairly i.e., unreasonably.
While the former does not present any difficulty, the latter needs a little reiteration of its precise meaning.
What does acting unfairly or unreasonably mean? Does it mean that the High Court exercising its jurisdiction under Article 226 of the Constitution can sit as an Appellate Authority over the acts and deeds of the corporation and seek 158 to correct them ? Surely, it cannot be.
That is not the function of the High Court under Article 226.
Doctrine of fairness, evolved in administrative law was not supposed to convert the writ courts into appellate authorities over administrative authorities.
The constraints self imposed undoubtedly of writ jurisdiction still remain.
Ignoring them would lead to confusion and uncertainty.
The jurisdiction may become rudderless.
The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of Law and to prevent failure of justice.
This doctrine is complementary to the principles of natural justice which the Quasi Judicial Authorities are bound to observe.
It is true that the distinction between a quasi judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A.K. Kraipak & Ors.
vs Union of India & Ors., AIR 1970 S.C. 150.
Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi judicial action.
If the High Court cannot sit as an appellate authority over the decisions and orders of quasi judicial authorities it follows equally that it cannot do so in the case of administrative authorities.
In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them.
They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred ' (Lord Diplock in Secretary of State for Education vs Tameside Metropolitan Borough Counsel, ; at 1064).
The Court cannot substitute its judgment for the judgment of administrative authorities in such cases.
Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene.
To quote the classic passage from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, (1948) 1 KB at 229.
"It is true the discretion must be exercised reasonably.
Now what does than mean ? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense.
It has frequently been used and is frequently used as a general description of the 159 things that must not be done.
For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law.
He must call his own attention to the matters which he is bound to consider.
He must exclude from his consideration matters which are irrelevant to what he has to consider.
If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably '.
Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. ' While this is not the occasion to examine the content and contours of the doctrine of fairness, it is enough to reiterate for the purpose of this case that the power of the High Court while reviewing the administrative action is not that of an appellate court.
The judgment under appeal precisely does that and for that reason is liable to be and is herewith set aside.
On behalf of the appellant reliance has been placed upon the decision of this court in Mahesh Chandra vs Regional Manager, U.P. Financial Corporation & Ors., (1992) 2 J.T. 326.
We have perused the decision.
That was a case where the debtor was anxious to pay off the debt and had been taking several steps to discharge his obligation.
On the facts of that particular 'case it was found that the corporation was acting reasonably.
In that context certain observations were made.
The decision also deals with the procedure to be adopted by the Corporation while selling the units taken over under Section 29.
That aspect is not relevant in this case.
We are, therefore, of the opinion that the said decision is of no help to the appellant herein.
The appeal is accordingly allowed.
The respondents shall pay the .costs of the appellant assessed at Rs. 10,000 consolidated.
T.N.A. Appeal allowed.
|
The respondent Company obtained loan from the appellant Financial Corporation.
Soon after obtaining the loan it ceased to, operate and was declared a sick unit.
Consequently, it did not make any repayment of loan as stipulated in the agreement and the hypothecation deeds.
Thereafter, the appellant Corporation issued notice under section 29 of the for taking over the respondent 's unit for recovery of the amount due Rs.38.57 lakhs.
Ile respondent Company filed a writ petition in the Allahabad High Court questioning the appellant 's action.
Ile High Court allowed the petition and directed (1) expeditious rehabilitation of the concern and (2) to restore back the 150 possession of the unit to the respondent Company.
Against the judgment of the High Court the Financial Corporation riled an appeal in this Court.
Allowing the appeal and setting aside the order of the High Court, this Court, HELD : 1.
It is true that the appellant Corporation which Is an instrumentality of the State created under the is not like an ordinary money lender or a Bank which lends money.
It is a lender with a purpose the purpose being promoting the small and medium industries.
At the same time, It is necessary to keep certain basic facts In view.
The relationship between the Corporation and the borrower is that of creditor and debtor.
the Corporation is not supposed to give loans once and go out of business.
It has also to recover them so that it can give fresh loans to others.
Corporations too borrow monies from Government or other financial corporations and they too have to pay interest thereon.
No doubt it has to act within the four corners of the Act and in furtherance of the object underlying the Act.
But this factor cannot be carried to the extent of obligating the Corporation to revive and resurrect every sick industry irrespective of the cost involved.
[156H, 157A C,F,] Promoting industrilisation at the cost of public funds does not serve the public interest; it merely amounts to transferring public money to private account.
The fairness required of the Corporation cannot be carried to the extent of disabling it from recovering what Is due to it.
While not insisting upon the borrower to honour the commitments undertaken by him, the Corporation alone cannot be shackled band and foot in the name of fairness.
Fairness is not a one way street more particularly in matters like the present one.
The fairness required of it must be tempered nay, determined in the light of all these circumstances.
In the instant case the respondents have no intention of repaying any part of the debt.
They were merely putting forward one or other ploy to keep the Corporation at bay.
[157D F] Mahesh Chandra vs Regional Manager, U.P. Financial Corporation Ors., (1992) 2 J.T. 326, held Inapplicable.
In a matter between the corporation and Its debtor, a writ court has no say except in two situations : (1) there is a statutory violation on the part of the Corporation or (2) where the Corporation acts unfairly i.e. 151 unreasonably.
The High Court exercising its jurisdiction under Article 226 of the Constitution cannot sit as an Appellate Authority over the acts and deeds of the Corporation and seek to correct them.
Doctrine of fairness.
evolved in administrative law was not supposed to convert the writ courts into appellate authorities over administrative authorities.
The constraints self imposed undoubtedly of writ jurisdiction still remain.
Ignoring them would lead to confusion and uncertainty.
The jurisdiction way become rudderless.
[157G H, 158A] 2.1.
The obligation to act fairly on the part of the administrative authorities was evolved to ensure the Rule of law and to prevent failure of justice.
This doctrine is complementary to the principle of natural justice which the Quasi judicial Authorities are bound to observe.
It is true that the distinction between a quasi judicial and the administrative action has become thin.
But even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi judicial action.
If the High Court cannot sit as an appellate authority over the decisions and orders of quasi judicial authorities it follows equally that it cannot do so in the case of administrative authorities.
The Court cannot substitute its judgment for the judgment of administrative authorities in such cases.
Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervenes.
[158C F] A.K Kraipak & Ors.
vs Union of India & Ors.
, A.I.R. 1970 S.C. 150; Secretary of State for Education vs Talimeside Metropolitan Borough Council, ; and Associated Provincial Picture Houses Ltd., vs Wednesbury Corporation, ; , relied on.
While passing the impugned order the High Court has not kept in mind the well recognised limitations of its jurisdiction under Article 226 of the Constitution.
While reviewing the administrative action it was not justified in acting as an appellate court.
[153D,159C]
|
ivil Appeal No. 2678 of 1985.
From the Judgment and order dated 30.4.1985 of the Delhi High Court in F.A.O. No. 270 of 1982.
M.C. Bhandare, Sandeep Narain and Shri Narain for the Appellants.
Dr. Shankar Ghosh and N.R. Choudhary for the Respondent.
The Judgment of the Court was delivered by KANIA,J.
The hearing before us now relates to certain objections filed to the Award made by Shri A.C. Gupta a former Judge of this Court who was appointed the sole arbitrator to adjudicate upon the dispute between the parties pursuant to the Order of this Court dated 18th November, 1987 in the circumstances as set out hereinafter.
In order to appreciate the objections, it is necessary to refer to certain facts.
The Settlement Commissioner, Government of India allotted Plot No. 631 at Chitranjan Park, New Delhi measuring 160 sq.
yds to the Respondent under the Settlement Scheme for the refugees from Pakistan for a total price of Rs.4,800.
This allotment was made by the Settlement Commissioner on behalf of the Rehabilitation Department of the Government of India.
The Respondent applied for a loan from the Ministry of Defence for construction of the house on the said plot and a loan of Rs.15,000 was sanctioned in his favour.
Under the House Construction Rules of the Government, the plans and estimates had to be submitted along with the application and a sanctioned amount was paid in four instalments at different stages of construction.
The Respondent started the construction of a building on the said land.
By the end of 1973, the Respondent had constructed a house on the said plot upto the roof level.
By that time he had obtained and used up a sum of Rs.12,000 out of the loan sanctioned to him and only a balance of Rs.3,000 PG NO 517 remained to be paid to him under the said loan.
According to the Respondent, this amount was not sufficient for the final completion of the house and he, therefore, sought the help of Appellant No. I who advanced a sum of Rs.5,000 to him.
In September, 1973 the Respondent entered into an agreement dated September 6, 1973 to sell the house and the said plot to the Appellant No. 1.
The aforesaid amount of Rs.5,000 given by way of loan was shown in that agreement as an advance paid towards the sale price.
The Respondent also executed a General Power of Attorney in favour of Appellant No. 1 inter alia enabling him to carry on construction work on the said land on behalf of the Respondent.
According to the Respondent, the house was not complete but the Appellants who are husband and wife were occupying the same.
Under circumstances, we need not discuss here, on January 29, 1974 another agreement was entered into between Appellant No. 1 and the Respondent which has been described as an agreement for construction.
Under that agreement, Rs.80,000 was to be paid by the Respondent as the price of the construction to be put up by Appellant No. I on the said plot and he was to charge Rs.20,000 as the profits and labour charges.
He was to deposit Rs.15,000 with the Respondent, this transaction was sham and bogus.
Disputes arose Respondent was to return the amount of Rs.1,15,000 within three years in a lump sum and on such payment, Appellant No. I was to hand over the possession of the building and the plot to the Respondent.
Till that amount was paid, Appellant No. 1 was entitled to possess and occupy and enjoy the same and to receive rents thereof.
According to the Respondent, this transaction was sham and bogus.
Disputes arose between the parties and the Respondent filed a suit in August 1977 claiming for the return of the possession of the said plot and the house.
A notice of motion under section 34 of the for stay taken out by the Appellants was dismissed.
An appeal was preferred against the said decision.
In the appeal, which came up for hearing before the Additional District Judge, Delhi.
with the consent of the parties, Shri Bakshi Man Singh was appointed as the sole arbitrator to adjudicate upon the disputes in the suit.
The said Shri Bakshi Man Singh died in July 1979 without making any award.
On an application by the Respondent, the learned Additional District Judge filled up the vacancy by appointing Shri Hari Shanker, Advocate, as the sole rbitrator.
Shri Hari Shanker made and published his award which went against the Appellants.
According to the Appellants, the said award was made ex parte.
The appellants challenged the award by filing objections under sections 30 and 33 of the before the learned Additional District Judge and applied for setting aside the said award.
This application was dismissed by the learned Additional District Judge.
The Appellants PG NO 518 filed an appeal against this decision on October 14,1982 before the Delhi High Court but the said appeal was dismissed by the learned Single Judge of that High Court on April 30, 1985.
This decision of the learned Single Judge was challenged before this Court by way of Special Leave Petition under Article 136 of the Constitution.
Leave was granted and the present Appeal came to be numbered as aforesaid.
This Appeal came up for hearing before a Division Bench of this Court on November 18,1987.
After hearing Counsel for the parties.
in order to ensure fairplay in the action, this Court set aside the award of the Arbitrator and also the judgment of the Delhi High Court and appointed Shri A.C. Gupta, a former Judge of this Court, as the sole arbitrator to adjudicate upon the disputes between the parties.
The arbitrator was directed to make his award with short reasons within four months from the receipt of the the order.
Certain other conditions like payment of compensation and additional expense were imposed on the Appellants.
Pursuant to the said order of this Court, the said Shri A.C. Gupta entered upon the reference and made and made and published his award on March 18,1988.
Under the said award, it was held that the Respondent was entitled to a sum of Rs.58,498.60p and interest on this amount at the rate of 18 per annum from the date of the reference to the date of the award which worked out to a sum of Rs.3,510.
Taking into account the amount paid by the Respondent initially towards the arbitrator 's remuneration and others costs and after setting off the dues of Appellants against the Respondent, it was held that the Respondent claimant was entitled to recover possession of the disputed building from the Appellants and that a sum of Rs.57,753 was payable by the Appellants to the Respondent.
It is this award which is challenged before us now.
The sole submission made by Mr. Bhandare, learned Counsel for the Appellants is that the award is bad in law and liable to be set aside as there is an error of law disclosed on the face of the award.
In this connection, Mr. Bhandare drew our attention to clause 2(b) of the agreement to sell dated September 6, 1973 referred to earlier.
Ten earlier part of the agreement set out that the purchaser (Appellant No. 1) had paid to the seller (Respondent) a sum of Rs.5,000, the receipt of which was acknowledged by the Respondent and the balance amount payable was to be paid in the manner set out in the said clause 2(b) which runs as follows: "The purchaser shall pay to the seller Rs.105 each month against the .sanctioned loan of Rs.15,000 by the fifth day of every English Calendar month till such time the full PG NO 519 amount of loan is recovered from the seller by the Government of lndia.
The first instalment shall commence with effect from 5th October, 1973 The purchaser, if he desires, can also deposit the actual remaining amount towards this loan at any time in lump sum to the Government of India on behalf of the seller.
" It is a common ground that the sum of Rs. 105 per month referred to clause 2(b) of the said agreement was paid by the Respondent only upto January 1976 and that this payment covered upto 23 instalments more than 100 instalments were remaining unpaid.
Mr. Bhandare pointed out that it was contended by the Appellants before the arbitrator that, although the agreement for sale between the parties was not registered and might not convey and interest to Appellant No. 1 in the property, the Appellants had been put in possession of the said land and construction pursuant to the said agreement since September 1973, as appears from the agreement of sale.
and, in view of this, Appellants were entitled to retain possession under the protection afforded by Section 53A of the Transfer of Act.
He drew our attention to the following statements contained in the award of the learned Arbitrator: "The Respondent who has been in possession of the property since September 1973 as would appear from the agreement for sale, claimed that his possession was protected Under Section 53A of the .
Section 53A affords protection to a transferee on certain condition, One of which is that `the transferee has performed or is willing to perform his part of contract '.
Under the agreement for sale, the respondent was required to pay the claimant a monthly sum of Rs. 105 to enable the latter to pay the instalments in discharge of the house building loan.
From the receipts filed it appears that the respondent paid only upto January 1976 which covered 23 instalments only and more than 100 instalments remained to be paid.
There is no valid reason why he should have failed t to carry out his obligation under the contract.
Thus it cannot be said that the respondent had performed or was willing to perform his part of the contract.
Therefore, the respondent was not entitled to retain possession of the disputed property beyond January 1976.
" PG NO 520 It was submitted by Mr. Bhandare that these statements clearly disclose close an error apparent on the face of the award.
It is pointed out by him that, prior to February 1976, the Respondent by his Advocate 's notice dated 16.1.1976 had repudiated the said agreement for sale by contending in his notice that it had been procured by fraud, undue influence and coercion practised by Appellant No. I and it was submitted that the said repudiation was wrongful and in view thereof Appellant No. 1 was absolved from his obligation to make any further payment of Rs.105 per month or to continue to be ready and willing to perform the agreement.
It was submitted by him that the aforestated statements contained in the award ran counter to the settled position in law and disclosed a clear error of law on the face of the award.
He drew our attention to the decision of this Court in International Contractors Ltd. vs Prasanta Kumar Sur, In that case the appellant had purchased the property in dispute from the respondent but soon thereafter there was an agreement for reconveyance of the property to the respondent within a period of two years for almost the same value for which it was sold.
Before the expiry of the stipulated period, the respondent entered into correspondence with the appellant, asking for the completion of the agreed reconveyance and intimating that the purchase money was ready to be paid, but after some further correspondence, the appellant 's solicitors, on his behalf, repudiated the agreement for reconveyance.
The respondent then did not tender the price agreed to be paid and filed a suit for specific performance.
The suit was dismissed by the trial court on the ground that the respondent had not paid the money.
The High Court reversed the decision and decreed the suit.
On an appeal to this Court, it was held that as the appellant had totally repudiated the contract for reconveyance and had tailed lo perform his part of the contract, it was open to the respondent to sue for its enforcement and the High Court was right in holding that respondent was entitled to a decree for specific performance.
In our view, Mr. Bhandare may be right in contending that this decision does show that it has been held by this Court that in certain circumstances once a party to a contract has repudiated a contract, it is not necessary for the other party to tender the amount payable under the contract in the manner provided in the contract in order to successfully claim the specific performance of the contract.
The decision, however, nowhere lays down that where one party to a contract repudiates the contract, the other party to the contract who claims specific performance of the contract is absolved from his obligation to show that he was ready and willing to perform the contract.
Mr. Bhandare 's argument really is to the effect that the Respondent wrongly repudiated the contract by his said letter dated 16th January, 1976, before all the mutual PG NO 521 obligations under the contract had been carried out, that is to say, he committed an anticipatory breach of the contract and in view of this, Appellant No. 1 was absolved from carrying out his remaining obligations under the contract and could claim specific performance of the same even though he failed to carry out his remaining obligations under the contract and might have failed to show his readiness and willingness to perform the contract.
In our view, this argument cannot be accepted.
It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance.
The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance but, in that event.
he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract.
The decision of this Court in International Contractors Limited vs Prasanta Kumar Sur, (supra), properly analysed, only lays down that in certain circumstances it is not necessary for the party complaining of an anticipatory breach of contract by the other party to offer to perform his remaining obligations under the contract in order to show his readiness and willingness to perform the contract and claim specific performance of the said contract.
Mr. Bhandare also referred to the decision of the Andhra Pradesh High Court in Makineni Nagayya and Others v Makineni Bapamma., AIR (45) We do not consider it necessary to refer this decision as it does not carry the case of the Appellants any further.
The ratio of the said decision in no way runs counter to the said position in law set out above.
In the case before us, what the arbitrator has done is to set out in his award the relevant portion of Section 53A of the in terms of the said section.
There can be no dispute that these provisions have been correctly set out.
There is thus no error in the proposition of law set out by the learned Arbitrator in the award.
It may be that there is an error, although that is by no means certain.
in the application of these principles in coming to the conclusion that, notwithstanding the repudiation of the said contract by the respondent, Appellant No. I was not absolved from his obligation to pay the remaining instalments of Rs.105 per month as provided under the contract.
In Coimbatore District Podu Thozillar Samgam vs Balasubramania Foundary and others; , it has been held by this Court that it is an error of law and PG NO 522 not a mistake of fact committed by the Arbitrator which is justiciable in the application before the Court.
If there is no legal proposition either in the award or in any document annexed to the award which is erroneous and constitutes the basis of the award and the alleged mistakes or alleged errors, are only mistakes of fact the award is not amenable to corrections by the Court.
In its judgment, the Court referred to the decision of this Court in Union of India vs A. L. Rallia Ram; , ; and, after referring to certain factors pertaining to awards in arbitration proceedings and the machinery devised by the , pointed out that the award was the decision of a domestic tribunal chosen by the parties and the civil courts which were entrusted with the power to facilitate arbitration and to effectuate the awards, could not exercise appellate powers over the decisions.
This Court reiterated that it was now firmly established that an award was bad on the ground of error of law on the face of it only when in the award itself or in a document actually incorporated in it, there was found some legal proposition which was the basis of the award and which was erroneous.
This view was enunciated by the Judicial Committee in Champsey Bhara and Co. vs Jivraj Balloo Spinning and Weaving Co. Ltd., [1922 23] LR 5O IA 324; This view was again reiterated and emphasised by this Court in Kanpur Nagar Mahapalika v M/s Narain Das Haribansh, 11970] 2 S.C.R. 28; where Ray, J., as the learned Chief Justice then was, observed at page 30 of the Report relying on Champsey Bhara case: "An error of law on the face of the award meant that one could find in the award, or in a document actually incorporated thereto, as, for instance.
a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which was the basis of the award and which one can say is erroneous.
" In State of Orissa & Ors v M/s Lall Brothers, [1988] Judgment Today S.C. 552 it was held by a Bench of this Court that it is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled him to arrive at his conclusions.
Reference was made in this connection (see paragraph 8) to the observations of the Judicial Committee in Champsey Bhara & Co. vs Jivraj Balloo Spinning & Weaving Co. ltd. and of this Court in Jivarajbhai Ujamshi Sheth & Ors.
vs Chintamanrao Balaji and Ors, ; PG NO 523 It was next contended by Mr. Bhandare that the award disclosed an error in law as certain important documents relied on by the Appellants were not referred to or discussed in the award at all.
In support of this contention Mr. Bhandare referred to the decision in K.P. Poulose vs State of Kerala and Another, ; In that case the arbitrator failed to take into account material documents, which were necessary to arrive at for a just and fair decision to resolve the controversy between the parties and it was held that this amounted to legal misconduct on the part of the arbitrator and his award liable to be set aside.
This decision is not of much assistance in the case before us as it is not the contention of Mr. Bhandare that the award is bad on the ground of any misconduct of the arbitrator but on the ground that it discloses an error of law on the face of the record.
Moreover, our attention has not been drawn to any particular document which was essential to resolve the controversy between the parties nor has it been demonstrated that any such document was not taken into account by the arbitrator.
In view of this, there is no basis to support the contention of Mr. Bhandare which must be rejected.
It cannot be even said in this case that the arbitrator was guilty of any legal misconduct or otherwise .
The objections to the Award of Shri A.C. Gupta, therefore, fail and are dismissed.
There will be a judgment in terms of the Award.
Let the decree be drawn up accordingly.
In the facts and circumstances of the case, there will be no order as to costs to the hearing before us.
|
The respondent had taken a loan of Rs.15,000 from the Ministry of Defence for construction of a house on a plot allotted to him.
As the amount of loan was insufficient to complete the construction, he took a loan of Rs.5,000 from Appellant No. 1 and on 6th September, 1973 he entered into an agreement to sell the house and the plot to Appellant No. 1.
The aforesaid amount of Rs.5,000 was shown as advance of sale price.
Clause 2(b) of the Agreement provided that the appellant purchaser shall pay to the seller!respondent a sum of Rs.105 every month against the sanctioned loan of Rs. 15,000 till the full amount is recovered from the respondent.
I he payment of Rs. 105 per month was made by the appellant only up to .January 1976 and this payment covered upto 23 instalments, and more than l00 instalments remained unpaid.
On January 29, 1974 another agreement, for construction. was entered into between Appellant No. 1 and the respondent.
Under this agreement, Appellant No. 1 was to complete construction of the house and alter the completion of the house the respondent was to return the cost of construction amounting to Ks.1,15,000 including appellant 's profit of Rs.20,000 and security amount of Rs. 15,000 deposited by the Appellant No. 1 with the respondent, within three years in a lump sum and on payment the Appellant No.
I was to hand over the possession of the building and the plot to the respondent.
Till that amount was paid.
Appellant No 1 was entitled to possess and occupy and enjoy the building PG NO 513 PG NO 514 The house was not completed but the appellants who are husband and wife were occupying the same.
According to the respondent this transaction was sham and bogus and he repudiated the same.
Disputes arose between the parties.
The respondent filed a suit claiming for the return of possession of the said plot of land and house.
The application ot ' the appellant under section 34 of the Arbitration Act was dismissed.
In the appeals preferred by the appellant the Additional District Judge, appointed a sole arbitrator with the consent of the parties.
The arbitrator made and published his award which went against the appellants.
The High Court dismissed the appeal filed by the appellants against the order of the District Judge dismissing their application challenging The Award.
This Court.
in appeal, set aside the award of the Arbitrator and also the judgment of the High Court and appointed Shri A.C. Gupta, a former Judge of this Court as the sole arbitrator.
It was contended before the said Arbitrator that the agreement for sale was not registered and might not convey any interest to appellant No. 1 in the property, but the appellants, who had been put in possession of the said land and construction.
were entitled to retain possession under th4 ' protection affOrded by section 53A of the .
The arbitrator made and published his award which went against the appellants.
The arbitrator held from the receipts filed, that the respondent paid only rent up to than 100 instalments remained to be paid, and that there was no valid reason why the respondent should have failed to carry out his obligation under The contract.
The arbitrator further held that the respondent could not, therefore, claim that his possession was protected, under section 53A of the and was, therefore.
not entitled to retain possession of the disputed property beyond January 1976.
In the objection filed by the appellants challenging the award before this Court it was contended that the award is bad in law and liable to be set aside as there is an error of law disclosed on the face of the award as the statements contained in the award ran counter to the settled position in law that wrongful repudiation by the respondent of the contract by his letter dated 16 January, 1976, before mutual obligation under the contract were carried out, amounted to PG NO 515 an anticipatory breach of contract by him and therefore the Appellant No. 1 is absolved from carrying out his remaining obligation under the contract, and could claim specific performance of the same even though he failed to carry out his remaining obligations under the contract.
Dismissing the objections and upholding the award, the Court, HELD: l.
It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance.
The other option open to the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific performance but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the contract.
[521B C] International Contractors Ltd. vs Prasanta Kumar Sur, [1961]3 SCR 579, distinguished.
It is an error of law and not a mistake of fact committed by the Arbitrator which is justiciable in the application before the Court.
[521A] If there is no legal proposition either in the award or in any document annexed to the award which is erroneous and constitutes the basis of the award and the alleged mistakes or alleged errors are only mistakes of fact the award is not amenable to correction by the Court.
[522A B] Coimbatore District Podu Thozillar Sangam vs Balasubramania Faundary and Others, ; ; Champsey Bhara and Co. vs Jivraj Balloo Spinning Weaving Co. Ltd., [1922 23] LR 50 IA 324, ; Kanpur Nagar Mahapalika vs M/s Narain Das Haribansh, , and State of Orissa & Ors.v.
M/s Lall Brothers, [1988] Judgment Today S.C. 552, referred to.
In this case, what the arbitrator has done is to set out in his award the relevant portion of section 53A of the , in terms of the said section.
There can be no dispute that these provisions have been correctly set out.
There is thus no error in the proposition of law set out by the learned Arbitrator in the award.
It may be that there is an error, although that is by no means certain, in PG NO 516 the application of these principles in coming to the conclusion that, notwithstanding the repudiation of the said contract by the respondent, Appellant No. 1 was not absolved in the facts and circumstances of the case from his obligation to pay the remaining instalments of Rs.105 per month as provided under the contract.
[521F G]
|
This is the third bail application under Section 439 of the
Code of Criminal Procedure, 1973 filed on behalf of the applicant
for grant of bail. His first bail application i.e. M.Cr.C.No.2103/2021
was disposed of on 27/04/2021 and second bail application i.e.
M.Cr.C. No.50669/2021 was dismissed as withdrawn on
09/12/2021. The applicant is in custody since 22/06/2018 in
connection with Crime No.451/2017 registered at Police Station –
Rau, District Indore (M.P.) for commission of offence punishable
under Section 363, 366, 376(2)(i), 376(2)(n) and 506-II of the
Indian Penal Code, 1860 read with Section 5(m)/6 and 5(l/6) of the
Protection of Children from Sexual Offences Act, 2012.
As per prosecution story, the prosecutrix was minor and was
11 years of age at the time of incident. She knows the present
applicant before the incident. The present applicant abducted the
minor prosecutrix and kept her at his sister's village and committed
rape upon her and threatened her to kill if she disclosed anyone
about the incident. The sister of the prosecutrix lodged a missing
person report in respect of the prosecutrix. Accordingly, crime has
been registered against the present applicant.
Learned counsel for the applicant submits that the applicant
is innocent person and he has been falsely implicated in this
offence. He is in custody since 22/06/2018. Investigation is over
and charge sheet has been filed. Nine witnesses including the
prosecutrix have been examined by the prosecution. Medical
evidence is not supporting the prosecution version. Final conclusion
of the trial is likely to take sufficient long time. The applicant is
permanent resident of Indore district. Under the above
circumstances, prayer for grant of bail may be considered on such
terms and conditions, as this Court deems fit and proper.
Per contra, learned counsel for the respondent / State
opposes the bail application and prays for its rejection by
submitting that the prosecutrix was only 11 years of the age at the
time of incident and she categorically stated in her statement against
the present applicant. Hence, he is not entitled to be enlarged on
Counsel for the objector also opposes the bail application and
prays for its rejection.
I have perused the impugned order of the trial Court as well
as the case diary.
Considering all the facts and circumstances of the case,
nature and gravity of offence, arguments advanced by the learned
counsel for the applicant and also taking note of the fact that as per
the scholar register prosecutrix's date of birth is 08/03/2006,
therefore, she was below 12 years at the time of incident.
Prosecutrix has been examined before the trial Court and she has
categorically stated in her statement that present applicant abducted
and committed rape upon her several times.
At the stage of consideration of bail, marshalling of the
prosecution witnesses is not permitted as per the judgment of
Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of
Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007,
wherein it has been held as under:-
“At the stage of granting of bail, the Court can only go
into the question of prima facie case established for granting
bail. It cannot go into the question of credibility and
reliability of the witnesses put up by the prosecution. The
question of credibility and reliability of prosecution witnesses
can only be tested during the trial.”
As per the law laid down by the Hon'ble Supreme Court in
Satish Jaggi (supra), this Court can only go into the question of the
prima facie case established for granting bail. At the stage of
consideration of bail, this Court cannot go into the question of
credibility and reliability of the witnesses put up by the prosecution.
In the statement recorded before the trial Court, the prosecutrix has
categorically stated against the present applicant about the aforesaid
In view of the evidence available on record, as above,
without commenting upon the merits of the case, at this stage, this
Court is not inclined to enlarged the applicant on bail.
Accordingly, the third bail application filed by applicant
under Section 439 of Cr.P.C. is dismissed.
Certified copy as per rules.
|
Considering the categorical statement made by a 11-yr-old rape victim, the Madhya Pradesh High Court recently rejected the bail application of the accused stating that at the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted.
Justice Anil Verma observed:
"At the stage of consideration of bail, marshalling of the prosecution witnesses is not permitted as per the judgment of Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007."
In that case, the Supreme Court had said that at the stage of granting of bail, the Court can only go into the question of prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution, and the same can only be tested at the time of trial.
The Court was dealing with a third bail application under Section 439 CrPC filed on behalf of the applicant for grant of bail. The applicant is in custody since 22/06/2018 in connection with Crime registered for alleged commission of offences under Section 363, 366, 376(2)(i), 376(2)(n) and 506-II of the Indian Penal Code, 1860 read with Section 5(m)/6 and 5(l/6) of the Protection of Children from Sexual Offences Act, 2012.
The case of the prosecutrix is that she was a minor and was 11 years of age at the time of incident. She knew the applicant before the incident. The applicant abducted her and kept her at his sister's village and committed rape upon her and threatened her to kill if she disclosed to anyone about the incident. The sister of the prosecutrix lodged a missing person report in respect of the prosecutrix. Accordingly, crime was registered against the present applicant.
Applicant argued before court that he is innocent person and has been falsely implicated in this offence. He said that Investigation is over and charge sheet has been filed. Nine witnesses including the prosecutrix have been examined by the prosecution.
Further he said that Medical evidence is not supporting the prosecution version and final conclusion of the trial is likely to take sufficient long time. He said under the aforesaid circumstances prayer for grant of bail may be considered on such terms and conditions, as this Court deems fit and proper.
The Counsel for state opposes the bail application and prayed for its rejection by submitting that the prosecutrix was only 11 years of the age at the time of incident and she categorically stated in her statement against the present applicant. Hence, he is not entitled to be enlarged on bail.
After perusing the records the court noted that the girl was below 12 years at the time of incident.
"Prosecutrix has been examined before the trial Court and she has categorically stated in her statement that present applicant abducted and committed rape upon her several times." Court said.
In view of the above, and the decision of the Supreme Court in Satish Jaggi (supra) court decided that a case for bail is not made out.
Case Title: ASHOK v. THE STATE OF MADHYA PRADESH AND ANR.
|
N: Criminal Appeal No. 580 of 1976.
From the Judgment and Order dated 10.10.1975 of the High Court of Punjab and Haryana in Criminal Miscellaneous No. 772 M of 1974.
R.S. Sodhi for the Appellant.
Gopal Subramaniam, Amicus Curiae for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by certificate granted under Article 134(1)(c) of the Constitution is directed against the judgment of a Full Bench of the High Court of Punjab and Haryana in Raj Kumar, A.S.I. vs The State of Punjab, [1976] IV C.L.R. (Pb. & Har.) page 39 allowing a petition under Section 561(A) of the Code of Criminal Procedure 1898 filed by the respondent.
The objective in filing the appeal, it was conceded by Mr. R.S. Sodhi, learned counsel for the State is the determination of a larger issue transcending the narrow confines of the quashing of the criminal proceedings against the respondent viz. the construction of Rule 16.38 of the Punjab Police Rules and its applicability to criminal prosecutions launched against the members of the Punjab Police Service for offences under the Indian Penal Code and other Acts.
The controversy regarding the ambit of Rule 16.38 of the Punjab Police Rules has arisen in the following circumstances.
One Jamuna Devi Mukhtiar Kaur gave a report against the respondent, who was an Assistant Sub Inspector in the Punjab Police Service, to the Deputy Superintendent of Police, Patiala alleging command of illegal gratification of Rs.200 by him for releasing her husband and brother on bail bonds in a case pertaining to a land dispute.
A first information report was registered and a trap was laid for the respondent and he was apprehended as soon as the marked currency notes treated with phenolophthalene were handed over to him and the marked currency 939 notes were recovered from him.
After completion of investigation, the respondent was chargesheeted before the Special Judge, Sangrur.
The respondent appeared before the Special Judge and raised an objection to the framing of charges against him on the ground the investigation of the case was in contravention of Rule 16.38.
The Special Judge over ruled the objection and framed charges and posted the case for trial.
The respondent filed a petition before the High Court under Section 561(A) of the Criminal Procedure Code 1898, for quashing the proceedings against him before the Special Judge.
As there were conflicting decisions of the High Court in the interpretation of Rule 16.38, a learned Single Judge referred the matter to a Division Bench and in turn the Division Bench referred the matter to a Full Bench.
A Full Bench of the High Court reviewed the earlier decisions and held that Rule 16.38 is mandatory and not directory in character and secondly the mandate would govern criminal prosecutions as well as departmental enquiries in equal measure and as such any prosecution launched or departmental enquiry held in violation of the terms of the Rule would vitiate the proceedings concerned.
Having interpreted Rule 16.38 thus, the Full Bench noticed that the investigation against the respondent had not been done in accordance with Rule 16.38 and therefore the bench allowed the petition and quashed the charges framed against the respondent.
The High Court, however, granted a certificate under Article 134(1)(c) to the State to file an appeal to this Court and that is how the appeal is before us.
What, therefore, calls for consideration is whether the procedure prescribed in Rule 16.38 calls for observance in the case of departmental enquiries alone or whether it would govern criminal prosecutions also for offences under the Indian Penal Code and other Acts, and secondly whether the Rule is mandatory in character or only directory.
Our task has been considerably lightened by a pronouncement on the first question, with which we are primarily concerned, by another Bench of this Court in the State of Punjab vs Charan Singh, ; declaring that Rule 16.38 cannot govern criminal prosecutions against the members of the Police Force as it cannot over ride the provisions of the Criminal Procedure Code.
In spite of the said pronouncement, with which we are in respectful agreement, we feel it necessary to deal with the matter at some length because of certain misconceptions contained in the judgment of the High Court under appeal.
940 Before we advert to the decisions pertaining to Rule 16.38, we may refer to certain provisions of the and the Punjab Police Rules framed thereunder.
Section 3 of the , confers the right of superintendence of the Police Force throughout the general police district on the State Government and vests in such Government the right to exercise such powers in that behalf.
Section 7 deals with the appointment, dismissal, etc.
of inferior officers.
The Section lays down that the "Subject to the provisions of Article 311 of the Constitution, and to such Rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Asstt.
Inspector General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty or unfit for the same" or to award any of the lesser punishments prescribed under clauses (a) (b) (c) (d) for discharge of duty in a careless or negligent manner etc.
Besides the power conferred on the State Government to make Rules under Section 7, there is also provision under Section 12 for the Inspector General of Police, subject to the approval of the State Government, to frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of police force, the places at which the members of the police force shall reside, the services to be performed by them etc.
for ensuring the efficiency of the police force in the discharge of its duties.
It is in exercise of the powers conferred by Sections 7 and 12 of the that the Punjab Police Rules 1934 have been framed.
The Rules have been categorised under 28 Chapters for dealing with various matters such as organisational setup, uniforms, arms and ammunition, leave, pension, promotions, rewards, punishments, training, supervision, investigation, prosecution etc.
The matters covered by the Rules make it clear that the Rules have been framed for regulating the set up and the service conditions of the police force as well as for awarding them rewards and departmental punishments and other matters of internal administration for keeping efficient and disciplined one.
It is in that perspective Rule 38 of Chapter 16 has to be viewed.
The very first Rule in Chapter 16 sets out the scope and purpose of the Rule comprised in that chapter.
Rules 16.1 reads as follows: "(1) No police officer shall be departmentally punished otherwise than as provided in these rules; (2) The departmental punishments mentioned in the second 941 column of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos.
3 to 9, by the officers named below each heading in each case, or by any officer of higher ranks".
(Emphasis supplied) Rule 16.38 with which we are concerned, contains 7 sub clauses.
For our purpose it is enough if we extract sub clauses.
1 to 4 and refer in general terms to the contents of Clauses 5 to 7.
"16.38(1) Immediate information shall be given to the District Magistrate or any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public.
The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers.
(2) When investigation of such a complaint establishes a prima facie case, a judicial prosecution shall normally follow; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded.
When it is decided to proceed departmentally the procedure prescribed in rule 16.38 shall be followed.
An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed.
(3) Ordinarily a magistrate before whom a complaint against a police officer if laid proceeds at once to judicial enquiry.
He is, however, required to report details of the case to the District Magistrate, who will forward a copy of this report to the Superintendent of Police.
The District Magistrate himself will similarly send a report to the Superintendent of Police in cases of which he himself takes cognizance.
(4) The Local Government has prescribed the following supplimentary procedure to be adopted in the case of complaints against police officers in those districts where abuses of the law with the object of victimising such officers or hampering investigation is rife.
The District Magistrate will order that all petitions against police officers shall be 942 presented to him personally.
If he considers that these petitions are of a frivolous or factious nature, it is within his discretion to take no action on them.
When he considers an enquiry to be necessary he will use his discretion whether to send the papers to the Superintendent of Police or to a magistrate for judicial enquiry.
In the case of formal criminal complaints, the District Magistrate will arrange for all cases to be transferred from other courts to his own.
Clauses 5 to 7 relate to strictures passed by the High Court and other courts against police officers and the manner of communication of the strictures to the District Magistrate and the Government.
Different interpretations were given by different Benches of the High Court of Punjab and Haryana regarding the scope and force of rule 16.38.
In Criminal Revision No. 1100 of 1972 (Amarjit Singh vs State of Punjab) H.R. Sharma, J. held that Rule 16.38 debarred criminal proceedings if the same had been instituted without a prior sanction of the District Magistrate.
In Ram Prakash, Asstt.
Sub Inspector vs The State, [1974] Chandigarh Law Reporter 205 Gurnam Singh, J. took a diametrically opposite view.
In Hoshiar Singh vs The State, a Division Bench of the High Court held that Rule 16.38 was attrected in the case of departmental enquiries only and the departmental enquiry would be vitiated if the papers had not been produced before the District Magistrate for getting his sanction at the initial stage.
In Nand Singh vs The Superintendent of Police and another, Current Law Journal(Pb)146 it was held that the Rule was mandatory.
The said view was affirmed by a Full Bench in Nand Mandan Sarup vs The District Magistrate and others, [1966] Current Law Journal (Pb) 608.
It was in that backdrop of conflicting decisions, the petition filed by the respondent herein under Section 561(A) for quashing of the proceedings against him before the Special Judge came to be referred to a Full Bench.
The reasoning of the Full Bench for allowing the respondent 's petition can be summarised thus: "The vests the right of superintendence of the police force in a State on the State Government.
Section 7 of the empowers the State Government to frame rules regarding disciplinary matters and Section 12 em 943 powers the Inspector General of Police, subject to the approval of the State Government, to frame orders and rules relating to the organisation, classification and distribution of the police force, the services to be performed by them etc.
" Hence the rules framed in exercise of powers conferred under section 7 and 12 have the force of law and they constitute a special legislation which takes precedence over the provisions of the Criminal Procedure Code.
Section 4 of the inter alia lays down that the administration of the police, within the jurisdiction of a District Magistrate, shall under his general control and direction, be vested in a District Superintendent and Assistant District Superintendents as the Government may appoint.
Consequently, the District Magistrate has statutory authority to exercise control over the administration of the police force in his District including the launching of criminal prosecutions or holding of Departmental enquiries against a member of the police force.
Rule 16.38 contains a mandatory provision regarding the procedure to be followed when any complaint is received by the Superintendent of Police against a member of the police force regarding the commission of an offence by him in connection with his official relations with the public.
The said rule will apply with equal force to investigations relating to criminal offences for which a prosecution is to be launched as it would to enquiries for taking departmental action through disciplinary proceedings.
On the basis of such reasoning, the Full Bench over ruled the decision in Hoshiar Singh vs State of Punjab (supra).
We will now refer to the decision in Hoshiar Singh (supra), since it has been approved by this Court in State of Punjab vs Charan Singh (supra), and then advert to some decisions of this Court relevant for consideration.
In that case a Sub Inspector of Police was challaned under Section 5(2) of the Prevention of Corruption Act and Section 161, Indian Penal Code and was suspended from service and chargesheeted and thereafter a departmental enquiry followed.
When a show cause notice was served on him on the conclusion of the enquiry intimating him the proposed punishment, he objected to the legality of the enquiry on the ground that no permission of the District Magistrate in accordance with Rule 16.38 of the Punjab Police Rules had been obtained.
The objection was sustained and the departmental enquiry was quashed.
Thereafter, the challan was put into Court and 944 once again an objection was raised that in the absence of a reference to the District Magistrate and his orders thereon directing prosecution, the Special Judge could not take cognizance of the case.
The Special Judge over ruled the objection holding that his powers under the Criminal Law (Amendment) Act were not trammelled by the Punjab Police Rules.
A criminal revision was filed before the High Court against the order of the Special Judge and the High Court dismissed the criminal revision holding thus: "I do not think Rule 16.38 was intended or could have the effect of imposing as a condition precedent to the trial of a police officer in a Court of Law, a sanction or an order by the District Magistrate, as contemplated therein.
The language appears to me to be confined only to departmental enquiries.
The investigation for establishing a prima facie case is merely meant to guide the District Magistrate, uncontrolled by the opinion of the Superintendent of Police, whether or not a departmental proceeding should be initiated against the guilty party, and it is the procedure and the punishment controlling the departmental proceedings alone, which appear to have been prescribed by this rule.
" In Delhi Administration vs Chanan Shah, [1969] 3 S.C.R. 653 an Asstt.
Sub Inspector was censured, after summary enquiry for having received illegal gratification in a case he was investigating.
The Deputy Inspector General of Police revoked the order of censure and directed departmental action being taken.
The departmental enquiry culminated in an order of dismissal against Chanan Shah.
An appeal and revision to the higher authorities having failed, Chanan Shah filed a writ petition which was dismissed by a Single Judge but allowed in writ appeal by a Division Bench and the order of dismissal was quashed.
The Delhi Administration came in appeal to this Court and this Court held that irrespective of whether Rule 16.38 is mandatory or directory, the authorities had failed to substantially comply with the provisions of the Rule and, therefore, the laches vitiated the departmental enquiry.
The same view was taken in a later case Union of India vs Ram Kishan, ; which related to the dismissal of a constable from service pursuant to a disciplinary enquiry being set aside in a civil suit filed by the dismissed constable.
The decree of the Trial Court was affirmed by the Appellate Court and the High Court and in further appeal to this Court, it was held that as no immediate information was given to the District Magistrate in respect of the complaint received 945 against the plaintiff (constable) and secondly since the District Magistrate has also not decided whether the investigating agency should be a police officer or a magistrate, as prescribed by Rule 16.38, the departmental enquiry was vitiated and, therefore, the plaintiff 's suit had been rightly decreed.
In State of Uttar Pradesh vs Babu Ram Upadhya, ; the view taken by the majority of the Bench was that paragraph 486 Rule 1 of U.P. Police Rules was mandatory in character and hence the departmental action taken against the respondent police officer in disregard of the rule was invalid.
It may be noticed that the three decisions of this Court which have been referred to above related to departmental enquiries and not criminal prosecutions for offences committed by the delinquent police officers.
The pronouncements in these cases will therefore govern only cases where departmental enquiries are held in contravention of the procedure prescribed by the Police Rules.
The reason for a special procedure being prescribed in the Rules for investigations before departmental enquiries are held against delinquent police officers is not far off to see.
In the very nature of their duties, the members of the police force would often stand exposed to criticism and complaints by not only the members of the public but also by the members of the force themselves and consequently they stand placed more vulnerable than members of other Government services, of being implicated in false or exaggerated charges.
In order to protect them from false implications and resultant proceedings, the Government had thought it necessary to have an initial screening of the complaints received against members of the police force by the District Magistrate.
Such screening would however extend only to matters which fall within the zone of departmental action and it could never extend to cases where the offences alleged to have been committed would attract investigation under the Criminal Procedure Code in the same manner the investigation would be attracted if the offences complained of had been committed by any member of the public.
That the procedure prescribed in Rule 16.38 has only a limited field of operation i.e. applicable only to departmental enquiries and punishments could be seen from the fact that clause 3 of the Rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police.
The clause further says that if the District Magistrate himself takes congnizance of a case, he should of his own accord send a report to the Superintendent of Police.
Clause IV of Rule 16.38 also throws light on the matter and brings out the 946 objective in greater clarity.
This clause sets out that in order to protect the interests of police officers serving in districts where petition mongering activities are notorious, the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc.
In fact, the words used in the clause are of a tell tale nature viz. "complaints against police officers in those districts were abuses of law with the object of victimising such officers or hampering investigation is rife.
" All these features make it clear that the purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected magistrate.
The procedure envisaged by the Rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other.
These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code.
The Full Bench was therefore in error in taking the view that the Rules lay down a special procedure for investigation of all offences committed by the members of the police force and, that they have over riding effect over the provisions of the Criminal Procedure Code in terms of Sections 4 and 5 of the Code.
We may now refer to some other decisions where it has been laid down that the provisions of the cannot prevail over the provisions of the Indian Penal Code.
In Maulud Ahmad vs State of U.P., [1963] (Supp) 2 S.C.R. 38, the appellant who was a head constable contended that the prosecution launched against him was barred by limitation under Section 42 of the because the prosecution had been launched beyond the period of three months prescribed by Section 42.
The contention was rejected and it was pointed out that the period of three months prescribed under Section 42 for commencing a prosecution would govern only prosecutions of a police officer for something done or intended to be done by him under the provisions of the or under general police powers given by the Act and Section 42 would not apply to prosecutions against a police officer for anything done under the provisions of any other Act or under 947 Police powers conferred under any other Act.
It was also brought to focus that Section 36 of the explicitely provides that nothing contained in the said Act shall be construed to prevent any person from being prosecuted under any Regulation or Act for any offence made punishable by the Act or for being liable under any other Regulation or Act or any other or higher penalty or punishment that is provided for such offence by the .
The above ratio was followed in Ajaid Singh vs Joginder Singh, ; In yet another case viz. S.N. Sharma vs Bipen Kumar Tiwari & Ors., it was held that the power of the police to investigate a cognizable offence is uncontrolled by the Magistrate and it is only in cases where the police decided not to investigate the case that the Magistrate can intervene and either direct an investigation, or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case and that the powers of the police to investigate have been made independent of any control by the Magistrate.
Lastly, we come to the decision in the State of Punjab vs Charan Singh (supra) where the identical question under consideration had come up for determination by this Court.
The respondent therein was convicted by the Special Judge, Ludhiana of an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and sentence to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 100.
On appeal, a Single Judge of the High Court acquitted the respondent on the ground the prosecution was vitiated by reason of non compliance with the provisions of Rule 16.38 of the Punjab Police Rules, 1934.
In the appeal preferred by the State, this Court allowed the appeal and held as follows: "A perusal of Chapter XVI of the Punjab Police Rules shows that the provisions of the Chapter deal with departmental punishments and the procedure to be followed in imposing such punishments.
Guidance is given as to how police officers guilty of misconduct and criminal offences may be dealt with . . .It is clear that Rule 16.38 is not designed to be a condition precedent to the launching of a prosecution in a criminal court; it is in the nature of instructions of the department and is not meant to be of the nature of a sanction or permission for a prosecution nor can it over ride the provisions of the Cr.
P.C. and the Prevention of Corruption Act.
We agree with the observations of Dua and Mahajan, JJ in Hoshiar Singh vs State (supra).
" 948 Though the decision of the Full Bench of the Punjab High Court which is now under consideration had not been brought to the notice of the Learned Judges when they rendered judgment in State of Punjab vs Charan Singh, we are in full agreement with the pronouncement of the Bench as the conclusion therein accords with our own conclusion and the reasons therefore.
We therefore hold that the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the prescribe a different procedure for the investigation and prosecution of offences committed by Police officers under the I.P.C. or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr.
The Full Bench has failed to note that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.
We therefore hold that the decision of the Full Bench under appeal in Raj Kumar, A.S.I. vs The State of Punjab (supra) is not in accordance with law and has to be set aside.
However, as mentioned at the outset, the State is not interested in reviving the charges against the respondent and pursuing the trial because of the long lapse of time.
Therefore, while allowing the appeal and setting aside the judgment of the High Court, we leave undisturbed the quashing of the charges framed against the respondent.
Since the respondent did not enter appearance or engage a counsel to contest the appeal in spite of the notice served on him, we requested Mr. Gopal Subramaniam, Advocate, to act as amicus curiae and render assistance to the Court on behalf of the respondent.
Mr. Gopal Subramaniam readily complied with our request and placed all the authorities for our consideration and we thank him for his assistance and place on record our appreciation of the services rendered by him.
H.S.K. Appeal allowed.
|
% The respondent was apprehended while taking bribe.
Investigation was held and the respondent was chargesheeted before the Special Judge.
The respondent raised an objection to the framing of charges against him on the ground that the investigation of the case was in contravention of rule 16.38 of the Punjab Police Rules.
The Special Judge overruled the objection and framed charges and posted the case for trial.
The respondent filed a petition before the High Court under section 561(A) of the Code of Criminal Procedure, 1898, for quashing the proceedings against him before the Special Judge.
A full bench of the High Court held that rule 16.38 is mandatory and not directory in character and that the mandate would govern criminal prosecution as well as departmental inquiries in equal measure.
The full bench having noticed that the investigation against the respondent had not been done in accordance with rule 16.38 allowed the petition and quashed the charges framed against the respondent.
Hence this appeal filed by certificate issued by the High Court.
Allowing the appeal and setting aside the High Court 's judgment this Court, ^ HELD: The procedure prescribed in rule 16.38 has only a limited field of operation that is applicable only to departmental inquiries and punishments.
This could be seen from the fact that clause 3 of the rule enjoins every Magistrate to whom a complaint against a police officer is referred by the District Magistrate for judicial enquiry to report the details of the case to the District Magistrate in order to enable the District Magistrate to forward the report to the Superintendent of Police.
The clause further says that if the District Magistrate himself takes cognizance of a case he should of his own accord send a report to 937 the Superintendent of Police.
Clause IV of rule 16.38 also throws light on the matter and brings out the objective in greater clarity.
This clause sets out that in order to protect the interest of police officers serving in districts where petition mongering activities are notorious, the District Magistrate can direct that all petitions complaining about police officers shall be presented to him personally so that he can scrutinize them to find out whether the petitions are of a frivolous nature or they have been engineered by factious groups in the districts etc.
In fact, the words used in the clause are of a tell tale nature viz. "complaints against police officers in those districts where abuses of law with the object of victimising such officers or hampering investigation is rife.
" [945F H; 946A B] The purpose underlying the rule is to enable the District Magistrate and the District Superintendent of Police to exercise personal control and supervision over the complaints received against members of the police force in the performance of their duties and enable the District Magistrate to ensure that the complaint is not a baseless or mala fide one and secondly to determine whether the complaint requires investigation by a police officer or by a selected Magistrate.
The procedure envisaged by the rule is for effective check being exercised against victimisation of efficient and honest police officers on the one hand and favouritism being shown to the delinquent police officers on the other.
These rules were not intended to replace and certainly cannot over ride the provisions of the Criminal Procedure Code.
[946C E] In the instant case the Full Bench was in error in taking the view that the Punjab Police Rules read in conjunction with the Police Act prescribe a different procedure for the investigation and prosecution of offences committed by Police Officer under the I.P.C. or other Acts in connection with their relations with the public and that the rules constitute a special statute and take precedence over the provisions of the Cr.
The Full Bench has failed to note that Rule 16.38 only mandates the investigation of cases pertaining to departmental enquiries and the holding of departmental enquiries in accordance with the procedure prescribed thereunder.[948B C] Raj Kumar, A. section I. vs The State of Punjab, [1976] IV CLR (Pb. & Har.) page 39, overruled.
State of Punjab vs Charan Singh, ; , referred to/agreed to.
Delhi Administration vs Chanan Shah, [1969] 3 S.C.R. 653; 938 Union of India vs Ram Kishan, ; ; State of Uttar Pradesh vs Babu Ram Upadhya, ; ; Maulud Ahmad vs State of U.P., [1963] (Supp.) 2 S.C.R. 38; Ajaib Singh vs Joginder Singh, ; and S.N. Sharma vs Bipan Kumar Tiwari & Ors.
,[1970] 1 S.C.C. 653, referred to.
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+ W.P.(C) 3031/2020 & C.M. No. 15227/2021, C.M. No. 15228/2021
C.M. No. 15229/2021, C.M. No. 15358/2021, C.M. No. 15359/2021
C.M. No. 15360/2021, C.M. No. 15361/2021,C.M. No. 15362/2021
C.M. No. 1 5363/2021
versus
versus
versus
versus
versus
versus
versus
versus
versus
versus
versu s
versus
versus
versus
versus
+ W.P.(C) 5102/2021 and CM Nos. 15635/2021 & 15636/2021
versus
versus
versus
For the p etitioners
Mr.Sacchin Puri, Senior Advocate with Mr.Praveen K. Sharma and
Mr.Dhananjay Grover, Advocates for the petitioner in W.P.(C) No s.
Petiti oner in person in W.P.(C) No.3031/2020 .
Mr.Mahesh Agarwal , Mr.Rishi Agrawala, Mr.Karan Luthra, Mr.Ankit
Banati, Adv ocates in WP(C) No. 4970/2021.
Mr. Himanshu Dagar, Advocate for applicant in C.M. No. 15648/2021 in
Mr. Ajay Kohli, M s. Priyanka Ghorawat, Mr. Raghav Marwaha, Advocates
for Delhi Heart and Lung Institute.
Ms. Prabhsahay Kaur, Advocate for in W.P.(C) No. 4971/2021 .
Mr. Priyadarshi Manish and Mrs. Anjali J. Manish, Advocates in W.P.(C)
No.4984/2021.
Mr. Sidharth Dave, S enior Advocate with Ms. Varuna Bhandari , Ms. Bhakti
Vardhan, Mr. Tushar Thareja, Advocates in W.P.(C) No. 4985/2021 .
Mr. Alok Kr. Aggarwal, Ms.Anushruti , Ms. Supreet Bimbra and Ms. Simran
Arora, Advocate s in WP (C) No. 5001/2021 .
Mr, Sachin Datta & Mr. G. Tu shar Rao, Senior Advocates with Mr. Dinesh
Sharma, Ms. Ritika Jhurani, Ms. Jipsa Rawat, Advocates along with
Mr.D.K. Baluja, Medical Director, Jaipur Golden Hospital in W.P. C Nos.
Mr. Maninder Singh, S enior Advocate with Mr. Aar ush Bhatia, Advocate in
Mr. Satish Aggarwala & Mr. Gagan Vaswani, Advocates in W.P.C No.
Mr. Krishnan Venugopal, S enior Advocate with Mr. Manan Verma,
Mr.Aditya N Prasad, Mr. Kaushik Mishra & Ms. Anmol Srivastava,
Advocate s in W.P.C No. 5050/2021 .
Mr. M.K. Gahlaut, Advocate in W.P.C No. 5081/2021 .
Mr. Mohit Chaudhary & Mr. Kunal Sachdeva, Advocates in W.P.(C.)
No.5085/2021
Ms. Karuna Nundy , Mr. Sarthak Maggon & Ms. Upasana, Adv ocates in
Mr Sudhir Mis hra, Ms.Petal Chandhok, Ms Rupali Gupta and Mr. Raghav
Seth, Advocates in W.P.C No. 5073/2021 .
Mr. Siddharth Chechani, Advocate in W.P.C No. 5103/2021 .
Mr. Abhinav Vashisht, Sr. Adv. with Mr. Sacchin Puri, Sr. Adv., Mr. JS
Bakshi, Sr. Adv. with Mr. Praveen K. Sharma, Mr. Dhanjay Grover, Mr.
Kamil Khan and Ms. Akshita Sachdeva, Advs. in W.P.(C) No. 5142/ 2021.
For the respondents
Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG , Ms. Aishwarya Bhati,
ASG along with Ms. Monika Arora, Mr. Amit Mahajan, Mr. Anil Soni &
Mr. Anurag Ahluwalia, CGSC s, Mr. Jivesh Kr. Tiwari, Ms. Nidhi Parashar,
Mr. Kanu Aggarwal, Mr. Kritagya Kumar Kait, Mr.Shriram Tiwary, Mr.
Amit Gupta, Mr. Akshay Gadeock, Mr. Sahaj Garg & Mr. Vinay Yadav,
Advocates for UNION OF INDIA in all the matt ers.
Mr. Rahul Mehra, Senior Advocate along with Mr. Satyakam, Mr. Santosh
Tripathi , SC Mr. Gautam Narayan, Mr. Anuj Aggarwal & Mr. Anupam
Srivastava, ASC s with Mr. Aditya P. Khanna , Ms. Dacchita Sahni, Ms.
Ritika Vohra and Mr. Chaitanya Gosain, Advocates for GNCTD in all the
matters.
Mr. Rajshekhar Rao, Senior Advocate (Amicus Curiae) , Mr. Anandh
Venkataramani , Mr. Vinayak Mehrotra , Ms. Mansi Sood, Mr. Karthik
Sundar , Ms. Sonal Sarda , Mr. Areeb Y Amanullah , Advocates in all the
matters.
Mr. Anil Grover, S enior Additional Advoca te General for Haryana along
with Ms. Bansuri Swaraj, Additional Advocate General for Haryana and Mr.
Siddhesh Kotwal, Ms. Manya Hasija & Ms. Ana Upadhyay, Advocates.
Mr. Aseem Chaturvedi & Mr. Ajay Bhargav, Advocates for M/s INOX.
Mr. Divya Prakash Pande, Adv ocate for South Delhi Municipal Corporation.
Mr. Abhinav Tyagi, Advocate for M/s Seth Air Products.
Ms. Malvika Trivedi, S enior Advocate with Mr. Tanmay Yadav,
Ms.Abhisree Saujanya, Ms. Nihaarika Jauhari, Ms. Eysha Marysha,
Ms.Vidhi Jain, Advocates along with Ms. Kritika Gupta, applicant in person .
Ms. Garima Prashad, S enior Advocate with Mr. Abhinav Agrawal,
Advocate .
Mr. Ankur Mahindro & Ms Sanjoli Mehrotra, Advocates for intervener .
Mr. Om Prakash & Mr. Pradeep Kumar Tripath i, Advocates for the
applicant in C.M. No. 15651/2021.
Mr. Rohit Priya Ranjan, Advocate for M/s Goyal Gases.
Mr. Abhishek Nanda, Advocate for IRDAI.
Mr.Anupam S Sharma, SPP -CBI with Mr.Prakarsh Airan, Ms.Harpreet
Kalsi, Advs in W.P(Crl) 953/2021.
Mr. Tushar Mehta, SG with Mr. Chetan Sharma, ASG, Mr. Satya Ranjan
Swain, CGSC and Mr. Kautilya Birat, Mr. Vedansh Anand, Advocates in
1. Mr.Rajshekhar Rao, learned Amicus Curiae has pointed out that
though the Central Government has , vide its letter dated 30.04.2021 , revised
the allocation of oxygen to GNCTD to 590MT, the allocation orders issued
by the Central Government do not take into a ccount the capacity of the
supplier to supply oxygen. He has contended that India Glycols was initially
required to supply 30MT to GNCTD and 40MT to the State of Uttarakhand,
but has often expressed its inability to make this complete supply of 30MT
to GNCTD on the ground that it does not have the capacity to produce
70MT on daily basis. He has submitted that Air Liquide , which as per the
latest allocation , has to supply a total of 190MT of oxygen to GNCTD , has
also expressed its inability to do so and h as claimed that it can only supply a
maximum of 165MT of oxygen to GNCTD.
2. Learned Amicus pointed out that certain States , which were allocated
higher amount of oxygen , are reportedly witnessing a dip in their oxygen
demand and not lifting their total all ocated supply and therefore, the Central
Government should reconsider the issue of allocation of oxygen to States,
allocation of oxygen by each supplier , and rationalized allocation of oxygen
tankers - including diversion of tankers from other States / territories to
States/ territories like NCTD , by factoring into account the real -time
requirement of oxygen in various states on a regular basis.
3. Mr.Rahul Mehra, learned Senior Counsel for the GNCTD submits
that even though , as per the own stand of the Central Government , 1224
cryogenic tankers , which have a capacity to carry 16732MT / day are
available , which is far in excess of the amount of oxygen of 8606MT / day
allocated to all the States ; it appears that there are sufficient tankers
available for the timely supply of oxygen t o the States and , therefore, it is
only a rational distribution of tankers which is needed in order to rectify the
shortage in Delhi. He, therefore, prays that the Central Government be
directed that to take , over all the tankers in the country as a nation al
resource , in the same way as it is done in the case of oxygen. Thereafter, the
Tankers could be rationally deployed to meet the needs of all the States and
Union Territories. The learned ASG , Mr.Chetan Sharma vehemently refute s
this submission and cont ends that the effective capacity of a tanker cannot
be calculated at 100% , as one has to necessarily take into account the
turnaround time as also other exigencies.
4. Mr.Mehra has further submitted that keeping in view the fact that a
substantial part o f the oxygen allocated to GNCTD ha s been earmarked from
suppliers who are situated at a distance of 1200 to 1500 kms from Delhi,
which supply necessarily , is time -consuming , thereby resulting in delay in
the allocated oxygen being made available for the ci tizens of the NCTD .
Therefore , the GNCTD has made suggestions to the Central Government to
explore other routes as suggested by the GNCTD, which according to him
will enable the GNCTD to receive the oxygen from the sources in a more
organized and timel y manner.
5. In view of the aforesaid stand taken by the GNCTD, we direct the
Central Government to expeditiously examine th e aforesaid aspects and
inform this Court on all the aspects noted hereinabove. The Empowered
Group looking into the aspect of mappi ng and allocation of LMO in the
country should iron out all creases and make necessary amends wherever
required, since errors/ slippages of the kind taken note of in the opening
paragraph of this Order are bound to result in the supply of Oxygen to the
States/ Union Territories being adversely affected.
6. The learned Amicus submits that he held a detailed discussion
yesterday night with the suppliers to understand the complete situation. He
submi ts that, realistically speaking with the present infrastructure , the
suppliers can supply, at the highest, 480 to 520 MT per day of LMO, and not
beyond that. He submits that to meet event the present demands of Oxygen
in the NCT of Delhi, it is essential for the Central Government, in
collaboration with the GNCTD, to prepare a buffer stock of Oxygen t o be
used for emergency use, and to ensure supply lines continue to function even
in unforeseen circumstances. This has been so directed by the Supreme
Court in its order dated 30.04.2021. However, no steps have been taken by
the Central Government in co llaboration with the GNCTD in this regard.
He submits that looking to the continuous shortages of medical Oxygen
being faced in Delhi, the Central Government may be directed to create a
buffer stock of, at least, 100 MT in the NCT of Delhi with the collaborat ion
of GNCTD. We find merit in this submission of Mr. Rajshekhar Rao. As
noticed hereinabove, the Supreme Court has already issued directions to the
Central Government, and the GNCTD to act in this regard. Paragraph 3 0 of
the order dated 30.04.2021 rea ds as follows:
“30 With regard to the issue of the supply and availability of medical
oxygen for the entire country, we have noted that efforts are being made to
augment the availability of oxygen. While the Central and State
Governments are in the process of managing the supply of oxygen, at the
same time, it is critical that a buffer emergency stock of oxygen is created
so that in the event that the supply chain is disrupted to any one or more
hospitals in an area for any reason, the buffer or emergency s tocks can be
used to avoid loss of human lives. These emergency stocks must be so
distributed so as to be easily accessible without delay in every local area.
We have also seen the situation that has developed in the last 24 hours in
Delhi where patients, including among them medical professionals, died
because of the disruption of supplies and the time lag in the arrival of
tankers. This deficit shall be rectified immediately by the Central
Government by creating buffer stocks and collaborating with the St ates
through the virtual control room on a 24 by 7 basis. In view of the deaths
which are being caused daily by the disruption of supplies, this direction is
more crucial than ever. We therefore, direct the Central Government in
collaboration with the Stat es to prepare a buffer stock of oxygen to be
used for emergency purposes to ensure supply lines continue to function
even in unforeseen circumstances. The location of the emergency stocks
shall be decentralised so as to be immediately available if the norm al
supply chain is disrupted to any hospital for any reason. The emergency
stocks shall be created within the next four days. The replenishment of the
emergency stocks will also be monitored on a real time basis through the
virtual control room in active c onsultation with each state/UT. This is in
addition to the day to day allocations.”
7. We, therefore, direct the Central Government to, in collaboration with
the GNCTD set up a buffer stock of 100 MT of LMO in the NCT of Delhi,
or, for supply to the NCT of D elhi in neighboring areas. Steps in this regard
for creation of a buffer stock of 100 MT of LMO be taken in the next 3 days.
8. The learned Amicus submits that the public at large are desperate to
secure Oxygen cylinders for their near and dear ones, and at the locations of
the re -fillers there are long queues, and the possibility of a law and order
situation arising is imminent. He submits that Liquid Oxygen, by itself, is
explosive and any accident at the site of the re -filler plant can lead to loss of
lives. He submits that it is essential to deploy a dedicated force for the
purpose of crowd management at the re -filling depo ts. Even though Delhi
Police is handling the situation, he submits that one of the Central Para
Military Forces, if deployed, would be able to handle the situation better.
We direct the Central Government to examine this aspect. We may note that
Central Industrial Security Forces (CISF) is adept in crowd management
and, therefore, deployment of CISF at the re -filling stations of the re -fillers
may be desirable. Let the Central Government respond in this regard within
2 days. This aspect shall be considered on 07.05.2021.
9. Mr. Rao has further submitted that it is essential that the good sense of
the people may be appealed by political leaders hip, so as not to hoard
medicines or gas cylinders. He submits that an artificial scarcity of gas
cylinders and medicines is being created, since the people feel insecure, and
to meet any unforeseen situation, are collecting and keeping within their
homes Oxygen cylinders. We have considered this submission and find
merit in the same. The political leadership may consider issuing appeals to
the people in this regard. We are conscious that such appeals may drive
some people to give up some of the cylinde rs, medicines and other
equipments that they may have collected, and kept to meet any unforeseen
eventuality.
10. Keeping in view the same, we are of the view that the GNCTD should
seriously examine the feasibility of creating Oxygen cylinder banks, and
even medicines banks, where the persons who surrender cylinders/
medicines get an assurance that, in case, they need the same at a later day,
they would be definitely provided with the same. We may note that such an
assurance is even given by the Blood Banks , who receive blood donations.
Let the feasibility and modalities of setting up of such cylinder/ medicines
banks at different locations in the NCT of Delhi be examined and the plan
be placed before the Court in 2 days. This aspect shall be considered by us
on 07.05.2021.
11. Our attention has also been drawn to the fact that the general public is
still not fully aware of the protocols to be followed upon being infected with
COVID -19, as also the manner in which oxygen concentrator s and cylinders
are required to be used. We are of the view that it would be appropriate to
direct the ICMR , as also the Ministry of Health and Family Welfare , to look
into expanding their reach and finding ways to disseminate information
through WhatsApp and other print and audio -visual media s uch as T.V.
Channels, and over the internet , regarding the aspects of (i)the COVID -19
protocol evolve d by it; (ii)the proper use of oxygen concentrators as well as
cylinders ; (iii)the right time to seek medical attention , and; (iv)information
about the conc erning symptoms that must be paid due attent ion to. These
are only illustrative and educational/ guidance materials may be prepared to
cover all necessary aspec ts.
12. Mr.Chetan Sharma , the learned ASG, has also pointed out that there
are about 750 clinics - including Mohalla Clinics run by the GNCTD and
there is no reason as to why the GNCTD is not utilizing these clin ics for
dealing with this surge in COVID -19 cases , at least for the purpose of
disseminating information to the general public and doing the preliminary
investigation. Mr.Mehra assures the Court that the said aspect will be
expeditiously considered by the GN CTD and a status report will be filed in
this regard within two days. Let the ICMR suggest the manner in which the
Mohalla Clinics could be put to use for COVID management.
13. Since a grievance has been raised by some of the suppliers that some
of the hospit als/nursing homes , despite receiving the allocated oxygen from
its dealers , are still approaching them for the supply of oxygen in terms of
the allocation order - we make it clear that the allocation to the
hospitals/nursing homes would be strictly in term s of the allocation order
and, therefore, in case the allocated quantity is received from the dealers , no
further demand can be raised on the suppliers.
14. Mr. Chetan Sharma, the learned ASG has stated, on instructions, that
12 new cryogenic tankers have been physically deployed for transportation
of LMO to Delhi. Mr. Mehra submits that the registration numbers of the
Tankers allocated for the NCT of Delhi with their GPS trackers should be
shared with the GNCTD and those tankers should not be used to make
supplies to other states, as it causes confusion and delays deliveries. We feel
this is a fair and reasonable request that should be hon oured by the Central
Government for better management of supplies.
15. There are a large number of small nursing homes who are treating
COVID -19 patients, but are not registered for that purpose with the
GNCTD. For instance, today, the doctor from Munni Maya Ram Jain
Hospital, AD Block, Pitampura has joined the proceedings. In the Oxygen
allocation orders, their names and requirements are not reflected. They are
raising their grievances with regard to no supply of Oxygen cylinders being
made to them. All such Nursing Homes may approach the GNCTD and
declare the number and kind of COVID beds/ patients with them, so that
they could be brought in to the system of supply of Oxyg en cylinders.
16. We are informed that the payment gateway on the website of the
GNCTD for receipt of donations is not working. The GNCTD should set it
right and report compliance by 06.05.2021.
17. Another aspect placed before us by the learned Amicus is with regard
to the GNCTD creating a plasma bank and providing information about the
same to the public. The GNCTD shall examine the issue and report on
07.05.2021.
18. During the course of the hearing, it has been bro ught to our notice that
the GNCTD is still not receiving 700 MT of liquid medical oxygen per day ;
even though, the Supreme Court while passing its detailed order dated
30.04.2021 , had directed compliance by the Union of India , by the midnight
of 03.05.2021. Paragrap hs 27 to 29 of the order dated 30.04.2021 passed by
the Supreme Court in Suo Motu W .P.(C) No.3 of 2021 are relevant and are
reproduced as under: -
“27. Submissions have also been made on the issue of supply
of oxygen by Mr. Rahul Mehra, learned Sen ior Counsel
appearing for the Government of National Capital Territory of
Delhi18. Mr Rahul Mehra submits that the GNCTD is facing
an acute shortage of the supply of oxygen as it had been
allocated a substantially lower quantity of oxygen as against
its pr ojected demand. Mr Mehra pointed out that initially as
on 15 April 2021, the projected demand of GNCTD for 20
April 2021 was 300 MT/day, for 25 April 2021 it was 349
MT/day, and for 30 April 2021 it was 445 MT/day. However,
due to a surge in cases, the pro jected demand was revised by
GNCTD on 18 April 2021 to 700MT/day and this was
immediately communicated to the Central Government.
Despite the increase in projected demand, the supply of
oxygen to GNCTD has continued in terms of the allocation
order dated 2 5 April 2021, in which 490 MT/day were
allocated. As against this as well, the manufacturers have only
been able to supply 445 MT/day. Mr Mehra has clarified that
as on the date of the hearing their demand was 700MT/day,
however their projected demand for the coming days is stated
to be 976 MT/day as the GNCTD has planned an increase in
medical infrastructure, including beds with oxygen cylinders
and beds for patients in intensive care unit.
28. Opposing his submission, the Solicitor General and Ms
Dawra st ated that no revised projections have been received
from GNCTD till date. The Solicitor General has also sought
to highlight that the government of GNCTD has failed to
offtake the allocated quantity of oxygen from the supply point.
29. Having heard the su bmissions of both counsels on the
issues pertaining to supply of oxygen to GNCTD, we note that
the Central Government (on page 63) in its affidavit dated 23
April 2021 has admitted that the projected demand for
GNCTD as of 20 April 2021 had increased by 13 3% from 300
MT/day to 700 MT/day. According to the figures of allocation
given in the affidavit dated 23 April 2021 and the presentation
given by Ms Dawra, the existing allocation of GNCTD
remains at 490 MT/day. This situation must be remedied
forthwith. T he situation on the ground in Delhi is heart
rending. Recriminations between the Central Government
(which contends that GNCTD has not lifted its allocated
quantity) and GNCTD (which contends that despite its
projected demand the quantity allocated has not been
enhanced) can furnish no solace to citizens whose lives depend
on a thin thread of oxygen being available. On the intervention
of the Court during the hearing, the Solicitor General states
that he ha s instructions to the effect that GNCTD‟s demand of
medical oxygen will be met and that the national capital will
not suffer due to lack of oxygen. We issue a peremptory
direction in those terms. In the battle of shifting responsibility
of supplying/offtak ing of oxygen, lives of citizens cannot be put
in jeopardy. The protection of the lives of citizens is
paramount in times of a national crisis and the responsibility
falls on both the Central Government and the GNCTD to
cooperate with each other to ensure that all possible measures
are taken to resolve the situation. Learned Senior Counsel for
GNCTD has assured the court after taking instructions at the
“highest‟ level that the issue will be resolved completely in a
spirit of co -operation. During the course of the hearing, the
Solicitor General has assured that henceforth he will ensure
that the deficit of oxygen is rectified and supply is made to the
GNCT D according to their projected demand (which may be
revised in the future) on a day by day basis. We accept his
submission and direct compliance within 2 days from the date
of the hearing, that is, on or before midnight of 3 May 2021.”
19. Mr. Sharma submits that a compliance affidavit is being filed in the
Supreme Court tomorrow. We fail to understand what a compliance affidavit
would do when, as a matter of fact, 700 MT of liquid medical oxygen is not
being delivered to Delhi on a daily basis. In fact, even t he earlier allocated
quantity of 490 MT, which has been revised to 590 MT per day , has not been
delivered for a single day.
20. At this stage, Mr. Sharma submits that the Supreme Court has not
directed the supply of 700 MT of liquid medical oxygen. We disagree with
this submission of Mr. Sharma and a plain reading of the aforesaid extract of
the order passed by the Supreme Court shows that the Supreme Court has
directed the Union of India to supply 700 MT of liquid medical oxygen to
Delhi on a daily basis by maki ng good the deficit .
21. A perusal of Paragraph 27 of the order passed by the Supreme Court
shows that the Supreme Court has recorded the submission of Mr.Mehra ,
who appeared for GNCTD , that as against their demand of 700 MT liquid
medical oxygen per day, the producers had only been able to supply 445 MT
per day.
22. The Supreme Court also take s note of the projected demand for the
coming days , which is 976 MT per da y, once there is an increase in the
medical infrastructure. Paragraph 29 of the order passed by the Su preme
Court takes note of the fact that the GNCTD had increased their demand on
20.04.2021 by 133% from 300 MT per day to 700 MT per day. The Supreme
Court also took note of the allocation in favour of NCT of Delhi , which was
490MT per day , (in terms of the affidavit dated 23.04.2021 and the
presentation given by Ms.Dawra ). The Supreme Court goes on to state that
“this situation must be remedied forthwith .”
23. In our view, this itself is sufficient to show that the Supreme Court
directed that Delhi should be allocated and provided with 700 MT liquid
medical oxygen per day. If there was any doubt, the same is clear from the
further reading of the order in the same paragraph. The Supreme Court takes
note of the heart -wrenching situation on the ground in Delhi. Unfortunately,
from the submission of Mr. Sharma and Ms. Bhati , it appears that this is
something not present to the mind of the Central Government.
24. In the same paragraph, the Supreme Court takes note of the assurance
given by the learned Solicitor Gen eral, on instructions , to the effect that
GNCTD’s demand of liquid medical oxygen – which is 700 MT/ day will be
met and the national capital will not suffer due to the lack of liquid medical
oxygen. This assurance given before the Supreme Court has certa inly not
been fulfilled . We have been seeing for ourselves , day after day , how large
and small hospitals, nursing homes and even individuals are running to us
with SOS calls for supply of medical oxygen. The Supreme Court goes on
to state “we issue a pere mptory direction in those terms.”
25. As if this was not enough, the Supreme Court further records in the
same paragraph “during the course of the hearing, the Solicitor General has
assured that hencefort h, he will ensure that the deficit of oxygen is rectifie d
and supply is made to the GNCTD according to their projected demand
(which may be revised in the future) on a day by day basis. We accept his
submission and direct compliance within 2 days from the date of the
hearing, that is, on or before midnight of 3 May 2021.”
26. We reject the submission of Mr.Sharma and Ms.Bhati that the
GNCTD is not entitled to receive 700 MT of liquid medical oxygen in the
light of the existing medical infrastructure. It pains us that the aspect of
supply of liquid medical oxygen f or treatment of covid patients in Delhi
should be viewed in the way it has been done by the Central Government.
27. We are facing the grim reality every day of people not being able to
secure oxygen beds or ICU beds. The situation has come to this that
hosp itals and nursing homes have had to reduce the number of beds offered
by them because they are not able to service their existing capacities , due to
shortage of medical oxygen. On the one hand, there is a need to augment
the capacities to meet with the ri sing numbers of COVID -19 positive cases ;
while on the other hand, the existing infrastructure is crumbling and the bed
capacity, even though available, cannot be put to its full use.
28. We, therefore, direct the Central Government to show cause as to why
contempt action should not be initiated for not only non -compliance of our
short order dated 01.05.2021 , but also of the order passed by the Supreme
Court dated 30.04.2021. To answer the said notice, we direct the presence
of Mr. Piyush Goyal and Ms. Sumita Dawra before us tomorrow.
29. List on 05.05.2021.
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The Delhi High Court today directed the Central government to show cause as to why contempt of court should not be initiated for non-compliance of orders passed with respect to the supply of oxygen to the national capital. (Rakesh Malhotra vs GNCTD)
A Bench of Justices Vipin Sanghi and Rekha Palli ordered,
"We direct Central government to show cause why contempt action should not be taken for non-compliance of our order of May 1 and Supreme Court order.."
The Court has accordingly directed the the presence of Central government officers, Piyush Goyal and Sumita Dawra, on the next date of hearing.
The Court recorded that it was matter of fact that till date, oxygen had not been supplied to the national capital either in terms of the Supreme Court order on 700 MT supply or its order on 490 MT supply.
As the Additional Solicitor General Chetan Sharma argued that the Supreme Court had not directed the Central government to supply 700 MT to Delhi, the Court opined,
"We disagree. A plain reading of the Supreme Court order shows that the Supreme Court has directed the Centre to supply by making good the deficit.."
The Court further rejected Centre's stand that Delhi's demand of 700 MT could not be accepted as it noted,
"We reject the submission that GNCTD is not entitled to receive 700 MT per day in light of existing infrastructure. It pains us that the aspect of supply of oxygen should be viewed in the way is done by the central government.."
It added,
"We see the grim reality everyday.. the situation has come to this that hospitals have had to reduce the number of beds..On one hand, there is need to augment capacities to meet the rising numbers, while on the other, the existing infrastructure is crumbling and available bed can't be put to use.."
The Court also opined that the assurance given by the Solicitor General Tushar Mehta to the Supreme Court that the demands of Delhi would be taken care of has not been fulfilled.
"..(the) assurance has not been fulfilled as small and large nursing homes and individuals are running to us..(with SoS calls)"
The order was passed after Senior Advocate Rahul Mehra for Delhi government once again reiterated that in spite of judicial orders, Delhi was not receiving oxygen as per demand.
ASG Sharma stated that the supply was "very substantial" and that the Central government will file a "compliance affidavit" before the Supreme Court.
Clarifying that even the High Court was entitled to assess the aspect of supply of oxygen to Delhi, the Court thundered,
"Contempt may be the last thing but it is there. Enough is enough. We are not going to take no for an answer.. There is no way that you won't supply 700 right away."
Even as Advocate Aishwarya Bhati took the Court through the Supreme Court order and the demands made by Delhi government from time to time, the Court remarked,
""Because they made a demand of 300, people should suffer? Central govt is doing to quibble about these little things and let people die?..You don't know (about the situation in Delhi)? You may put your head like an ostrich in the sand...we will not.."
On May 1, the Court had directed the Centre to ensure that the national capital receives its allocated share of 490MT of oxygen.
The Court also noted that Delhi has no cryogenic tankers that could enable the supply of oxygen. Thus, fixing responsibility on the Central government, the Court said,
"It falls on the Central government to arrange tankers ..(else) it only remains a paper allocation. The allocation to Delhi has been in force from April 20 and not for a single day Delhi has received allocated supply."
Read the order:
Read the full account of today's hearing here:
Delhi High Court begins hearing pleas concerning COVID-19 situation in the national capital. Hearing before Justices Vipin Sanghi and Rekha Palli. #CovidIndia #COVID19 #Oxygen@CMODelhi pic.twitter.com/qvMooc5NTN
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Civil Appeal No. 96 of 1972.
From the Judgment and Order dated 23rd December, 1971 of the High Court of Judicature at Allahabad in Second Appeal No. 3082 of 1971.
Yogeshwar Prasad, Mrs. Rani Chhabra and section K. Bagga for the Appellants.
B. R. Agarwala, R. H. Pancholi and Ms. Vijayalakshmi Menon for the Respondent.
The Judgment of the Court was delivered by VENKATRAMIAH, J.
The short question which arises for consideration in this appeal by special leave is whether a nominee of a life insurance policy under section 39 of the (Act No. IV of 1938) (hereinafter referred to as 'the Act ') on the assured dying intestate would become entitled to the beneficial interest in the amount received under the policy to the exclusion of the heirs of the assured.
994 The facts leading to this appeal are these: One Jag Mohan Swarup who was governed by the died intestate on June 15, 1967 leaving behind his son, Alok Kumar (plaintiff No. 2), his widow Usha Devi (defendant) and his mother Sarbati Devi (plaintiff No. 1) as his heirs.
He had during his lifetime taken out two insurance policies for Rs. 10,000 each and had nominated under section 39 of the Act his wife Usha Devi as the person to whom the amount was payable after his death.
On the basis of the said nomination, she claimed absolute right to the amounts payable under the two policies to the exclusion of her son and her mother in law.
Thereupon Sarabati Devi and Alok Kumar (minor) represented by his next friend Atma Ram who was the father of Jag Mohan Swarup filed a suit in Civil Suit No. 122 of 1970 on the file of the Ist Additional Civil Judge.
Dehradun for a declaration to the effect that they were together entitled to 2/3rd share of the amount due and payable under the insurance policies referred to above.
Usha Devi, the defendant resisted the suit.
Her contention was that on the death of the assured, she as his nominee became absolutely entitled to the amounts due under the insurance policies by virtue of section 39 of the Act The trial court dismissed the suit.
The first appeal filed by the plaintiffs against the decree of the trial court was dismissed by the District Judge, Dehradun.
The second appeal filed by them against the judgment of the District Judge before the High Court of Allahabad was dismissed in limine under Rule 11, Order 41 of the Civil Procedure Code.
The plaintiffs have filed this appeal after obtaining special leave under Article 136 of the Constitution.
The only question which requires to be decided in this case is whether a nominee under section 39 of the Act gets an absolute right to the amount due under a life insurance policy on the death of the assured.
Section 39 of the Act reads: "39.
Domination by policy holder. (1) The holder of a policy of life insurance on his own life may, when effecting the policy or at any time before the policy matures for payment, nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death: Provided that where any nominee is a minor, it shall be lawful for the policy holder to appoint in the prescri 995 bed manner any person to receive the money secured by the policy in the event of his death during the minority of the nominee.
(2) Any such nomination in order to be effectual shall unless it is incorporated in the text of the policy itself, be made by an endorsement on the policy communicated to the insurer and registered by him in the records relating to the policy and any such nomination may at any time before the policy matures for payment be cancelled or changed by an endorsement, or a further endorsement or a will, as the case may be, but unless notice in writing of any such cancellation or change has been delivered to the insurer, the insurer shall not be liable for any payment under the policy made bona fide by him to a nominee mentioned in the text of the policy or registered in records of the insurer.
(3) The insurer shall furnish to the policy holder a written acknowledgement of having registered a nomination or a cancellation or change thereof, and may charge a fee not exceeding one rupee for registering such cancellation or change.
(4) A transfer or assignment of a policy made in accordance with section 38 shall automatically cancel a nomination: Provided that the assignment of a policy to the insurer who bears the risk on the policy at the time of the assignment, in consideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall not cancel a nomination, but shall affect the rights of the nominee only to the extent of the insurer 's interest in the policy.
(5) Where the policy matures for payment during the lifetime of the person whose life is insured or where the nominee or, if there are more nominees than one, all the nominees die before the policy matures for payment, the amount secured by the policy shall be 996 payable to the policy holder or his heirs or legal representatives or the holder of a succession certificate, as the case may be.
(6) Where the nominee or if there are more nominees than one, a nominee or nominees survive the person whose life is insured, the amount secured by the policy shall be payable to such survivor or survivors.
(7) The provisions of this section shall not apply to any policy of life insurance to which section 6 of the Married Women 's Property Act, 1874 applies or has at any time applied : Provided that where a nomination made whether before or after the commencement of the Insurance (Amendment) Act, 1946, in favour of the wife of the person who has insured his life or of his wife and children or any of them is expressed, whether or not on the face of the policy, as being made under this section the said section 6 shall be deemed not to apply or not to have applied to the policy.
" At the out set it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi vs Dharma Devi on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in section Fauza Singh vs Kuldip Singh & Ors.
and Mrs. Uma Sehgal & Anr.
vs Dwarka Dass Sehgal & Ors in all other decisions cited before us the view taken is that the nominee under section 39 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to those in the present case and that the money remains the property of the assured during his lifetime and on his death forms part of his estate subject to the law of succession applicable to him.
The cases which have taken the above view are Ramballav DhanJhania vs Gangadhar Nathmall.
Life Insurance Corporation of India vs United Bank of India Ltd. & 997 Anr., D. Mohanaeelu Muldaliar & Anr.
vs Indian Insurance and Banking Corporation Ltd. Salem & Anr., Sarojini Amma vs Neelakanta Pillai Atmaram Mohanlal Panchal vs Gunavantiben & Ors., Malli Dei and Lakshmi Amma Anr.
vs Sagnna Bhagath & Ors.
, Since there is a conflict of judicial opinion on the question involved in this case it is necessary to examine the above cases at some length.
The law in force in England on the above question is summarised in Halsbury 's Laws of England (Fourth Edition), Vol. 25, Para 579 thus : "579.
Position of third party, The policy money payable on the death of the assured may be expressed to be payable to a third party and the third party is then prima facie merely the agent for the time being of the legal owner and has his authority to receive the policy money and to give a good discharge; but he generally has no right to sue the insurers in his own name.
The question has been raised whether the third party 's authority to receive the policy money is terminated by the death of the assured; it seems, however, that unless and until they are otherwise directed by the assured 's personal representatives the insurers may pay the money to the third party and get a good discharge from him.
" We shall now proceed to analyse the provisions of section 39 of the Act.
The said section provides that a holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death.
If the nominee is a minor, the policy holder may appoint any person to receive the money in the event of his death during the minority of the nominee.
That means that if the policy holder is alive when the policy matures for payment he alone will receive payment of the money due under the policy and 998 not the nominee.
Any such nomination may at any time before the policy matures for payment be cancelled or changed, but before such cancellation or change is notified to the insurer if he makes the payment bon fide to the nominee already registered with him, the insurer gets a valid discharge.
Such power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the lifetime of the assured.
If the policy is transferred or assigned under section 38 of the Act, the nomination automatically lapses.
If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the policy is payable to the heirs or legal representatives or the holder of a succession certificate.
It is not necessary to refer to sub section (7) of section 39 of the Act here.
But the summary of the relevant provisions of section 39 given above establishes clearly that the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder.
If that is so, on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him.
Such succession may be testamentary or intestate.
There is no warrant for the position that section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament ' in paragraph 16 of the decision of the Delhi High Court in Mrs. Uma Sehgal 's case (supra).
If section 39 of the Act is contrasted with section 38 of the Act which provides for transfer or assignment of the rights under a policy, the tenous character of the right of a nominee would become more pronounced.
It is difficult to hold that section 39 of the Act was intended to act as a third mode of succession provided by the statute.
The provision in sub section (6) of section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees.
We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered.
As observed in the Full Bench decision of the Allahabad High Court in Raja Ram vs Mata Prasad & Anr.
which has interpreted 999 section 39 of the Act correctly, the judgment of that High Court in Kesari Devi 's case (supra) related to a different set of facts.
In Kesari Devi 's case (supra) the dispute arose regarding the person who was entitled to the succession certificate in respect of the amount payable under a life insurance policy which had been taken out by the assured between the widow of the assured and the widow of the nominee under section 39 of the Act.
On going through the judgment in Kesari Devi 's case (supra) we feel that the Court in that case paid little heed to the earlier judicial precedents of its own Court.
The decision of the Full Bench in Raja Ram 's case (supra) set at rest all doubts which might have been created by Kesari Devi 's case (supra) about the true import of section 39 of the Act in so far as the High Court of Allahabad was concerned.
In Fauja Singh 's case (supra) there is reference only two three cases Life Insurance Corporation of India vs United Bank of India Ltd. (supra), Matin vs Mahomed Matin and Kesari Devi 's case (supra).
The Court expressed its dissent from the Calcutta decision on the ground that decision had not considered sub section (6) of section 39 of the Act.
The Lahore case was one decided before the Act came into force.
The distinguishing features of Kesari Devi 's case (supra) are already mentioned.
Otherwise there is not much discussion in this case about the effect of section 39 of the Act.
We have carefully gone through the judgment of the Delhi High Court in Mrs. Uma Sehgal 's (case) supra.
In this case of the High Court of Delhi clearly came to the conclusion that the nominee had no right in the lifetime of the assured to the amount payable under the policy and that his rights would spring up only on the death of the assured.
The Delhi High Court having reached that conclusion did not proceed to examine the possibility of an existence of a conflict between the law of succession and the right of the nominee under section 39 of the Act arising on the death of the assured and in that event which would prevail.
We are of the view that the language of section 39 of the Act is not capable of altering the course of succession under law.
The second error committed by the Delhi High Court in this case is the reliance placed by it on the effect of the amendment of section 60(1) (kb) of the Code of Civil Procedure, 1908 providing that all moneys payable under a 1000 policy of insurance on the life of the judgment debtor shall be exempt from attachment by his creditors.
The High Court equated a nominee to the heirs and legatees of the assured and proceeded to hold that the nominee succeeded to the estate with all plus and minus points '.
We find it difficult to treat a nominee as being equivalent to an heir or legatee having regard to the clear provisions of section 39 of the Act.
The exemption of the moneys payable under a life insurance policy under the amended section 60 of the Code of Civil Procedure instead of 'devaluing ' the earlier decisions which upheld the right of a creditor of the estate of the assured to attach the amount payable under the life insurance policy recognises such a right in such creditor which he could have exercised but for the amendment.
It is because it was attachable the Code of Civil Procedure exempted it from attachment in furtherance of the policy of Parliament in making the amendment.
The Delhi High Court has committed another error in appreciating the two decisions of the Madras High Court in Karuppa Gounder & Ors.
vs Palaniammal & Ors.
and in B.M. Mundkur vs Life Insurance Corporation of India & Ors.
The relevant part of the decision of the Delhi High Court in Mrs. Uma Sehgal 's case (supra) reads thus: 10. "In Karuppa Gounder vs Palaniammal, AIR 1963 Mad. 245 (para 13), K had nominated his wife in the insurance policy.
K died.
It was held that in virtue of the nomination, the mother of K was not entitled to any portion of the insurance amount.
I am in respectful agreement with these views, because they accord with the law and reason.
They are supported by section 44 (2) of the Act.
It provides that the commission payable to an insurance agent shall after his death, continue to be payable to his heirs, but if the agent has nominated any person the commission shall be paid to the person so nominated.
It cannot be contended that the nominee u/s 44 will receive the money not as owner but as an agent on behalf of someone else vide B.M. Mundkur vs Life Insurance Corporation, AIR 1977 Mad. 72.
Thus, the nominee excludes the legal heirs.
" 1001 Two mistakes committed by the Delhi High Court in the above passage are these.
In Karuppa Gounder 's case (supra), the question was whether the amount payable under the insurance policy in question was joint family property or separate property of the assured.
In that connection, the High Court of Madras observed thus: "But where a coparcener has effected insurance upon his own life, though he might have received the premia from out of the funds which he might have received from the joint family, it does not follow that the joint family insured the life of the member or paid the premia in relation thereto.
It is undeniable that a member of a coparcenary may with the moneys which he might receive from the coparcenary effect an insurance upon his own life for the benefit of the members of his immediate family.
His intention to do so and to keep the property as his separate property would be manifested if he makes a nomination in favour of his wife or children as the case may be.
It would therefore appear that no general proposition can be advanced in the matter of the insurance policy of a member of a coparcenary and that each case must be dealt with in accordance with the circumstances surrounding it.
" It is obvious from the above passage that the above case has no bearing on the meaning of section 39 of the Act.
The fact of nomination was treated in that case as a piece of evidence in support of the finding that the policy was not a joint family asset but the separate property of the coparcener concerned.
No right based on the ground that one party was entitled to succeed to the estate of the deceased in preference to the other or along with the other under the provisions of the was asserted in that case.
The next error committed by the Delhi High Court is in drawing an analogy between section 39 and section 44(2) of the Act thinking that the Madras High Court had done so in B. M. Mundkur 's case (supra).
In B.M. Mundkur 's case (supra), the High Court of Madras instead of drawing an analogy between section 39 and section 44(2) of the Act actually contrasts them as can be seen from the following passage: 1002 "There are vital differences between the nomination contemplated under Section 39 of the Act and the nomination contemplated under the proviso to Section 44(2) of the Act.
In the first place, the sum assured, with which alone Sec.
39 was concerned, was to be paid in the event of the death of the assured under the terms of the contract entered into between the insurer and the assured and consequently it was the contractual right which remained vested in the insured with reference to which the nomination happened to be made.
It should be pointed out that the nomination as well as the liability on the part of the insurer to pay the sum assured become effective simultaneously, namely, at the moment of the death of the assured.
So long as he was alive, the money was not payable to him, in the case of a whole life policy, and equally, having regard to the language of Section 39(1) of the Act, the nominee 's right to receive the money arose only on the death of the assured, Section 39 itself did not deal with the title to the money assured, which was to be paid by the insurer to the nominee who was bound to give discharge to the insurer.
It was in this context that the Court took the view that the title remained with the estate of the deceased, and therefore, with the heirs of the deceased, that the nomination did not in any way affect the title and that it merely clothed the nominee with the right to receive the amount from the insurer.
On the other hand, the provisions and purport of Section 44 of the Act are different.
In the first place under Section 44(1) it was a statutory right conferred on the agent to receive the commission on the renewal premium notwithstanding the termination of the agreement between the agent and the insurer, which provided for the payment of such commission on the renewal premium.
The statute also prescribed the qualification which rendered the agent eligible to receive commission on such renewal premium.
Section 44(1) provides for the payment of the commission to the agent during his lifetime only and does not contemplate the contingency of his death and the commission being paid to anybody even after his death.
It is section 44(2) which deals with the 1003 payment of commission to the heirs of deceased for so long as such insurance agent been alive.
Thus it was not the general law of inheritance which conferred title on the heirs of the deceased insurance agent to receive the commission on the renewal premium, but it was only the particular statutory provision, namely, Section 44(2) which conferred the right on the heirs of the deceased agent to receive the commission on the renewal premium.
In other words, the right of the heirs to receive the commission on renewal premium does not arise under any law of succession and it is a right directly conferred on the heirs by Section 44(2) of the Act, even though who the heirs of the deceased insurance agent are will have to be ascertained under the law of succession applicable to him.
Thus the statute which conferred such a right on the heirs is certainly competent to provide for an exception in certain cases and take away such a right from the heirs; and the proviso which has been introduced by the Government of India notification 1962 has done exactly this in taking away the right of the heirs conferred under the main part of Section 44(2), in the event of the agent, during his lifetime, making a nomination in favour of a particular person and not cancelling or altering that nomination subsequently.
If the statute itself was competent to donfer such a right for the first time on the heirs of the deceased agent it is indisputable that the statute could take away that right under stated circumstances.
" The reasons given by the Delhi High Court in this case in support of its view are not tenable.
Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982.
The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy.
Yet Parliament has not chosen to make any 1004 amendment to the Act.
In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view.
The reasons given by the Delhi High Court are unconvincing.
We, therefore, hold that the judgments of the Delhi High Court in Fauja Singh 's case (supra) and in Mrs. Uma Sehgal 's case (supra) do not lay down the law correctly.
They are, therefore, overruled.
We approve the views expressed by the other High Courts on the meaning of section 39 of the Act and hold that a mere nomination made under section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured.
The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy, The amount; however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
In view of the above conclusion, the judgments and decrees of the High Court, the first appellate court and the trial court are liable to be set aside.
They are accordingly set aside.
Since it is not disputed that the plaintiffs are under the law of succession governing them each entitled to 1/3 share in the estate of the deceased, it is hereby declared that each of the plaintiffs is entitled to 1/3rd share in the amount received under the insurance policies in question and the interest which may have been earned by its investment.
The suit stands decreed accordingly.
Parties shall, however, bear their own costs throughout.
S.R. Appeal allowed.
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The appellants being mother and son of one Jagmohan Swarup who was governed by the and who died intestate on June 15, 1967 filed Civil Suit No. 122 of 1970 on the file of the first Additional Civil Judge, Dehradun for a declaration to the effect that they were together entitled to 2/3rd share of the amount due and payable under the insurance policies though the deceased assured has nominated the respondent his widow as the person to whom the amounts were payable.
The respondent contested the suit claiming that she has the absolute right to the amounts to the exclusion of her son and her mother in law.
The suit was dismissed.
The First Appeal before the Dt.
Judge, Dehradun and the Second Appeal before the High Court were dismissed.
Hence the appeal after obtaining special leave of the Court.
Allowing the appeal, the Court, ^ HELD: 1.1 A mere nomination made under Section 39 of the does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the accused.
The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy.
The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
[1009G, 1004 B D] 1.2 An analysis of the provisions of Section 39 of the Act clearly established that the policy holder continues to hold interest in the policy during his life time and the nominee acquires no sort of interest in the policy during the life time of the holder.
If that is so, on the death of the policyholder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him.
such succession may be testamentary or intestate.
The tenuous character of the right of a nominee becomes more pronounced when one contrasts the provisions of Section 39 with that of 993 Section 38.
Section 39 of the Act was not intended to act as a third mode of succession provided by the stature and incorrectly styled as "statutory testament" by the Delhi High Court.
[998 C E] 1.3 The language of Section 39 of the Act is neither capable of altering the course of succession under law nor can be said to have equated a nominee to an heir or legatee.
[999F] section Fauza Singh vs Kuldip Singh & Ors.
AIR 1978 Delhi 276; Mrs. Uma Sehgal & Anr.
vs Dwarka Dass Sehgal and Ors.
AIR 1982 Delhi 36; overruled.
Rama Bhallav Dhandhania vs Gangadhar Nathmall AIR 1966 Cal.
275; D. Mohananardu Mudaliar and Anr.
vs Indian Insurance and Banking Corporation Ltd., Salem and Anr. ; Sarojini Amma vs Neelakanta Pillai AIR 1961 Kerala 126, Life Insurance Corporation of India vs United Bank of India Ltd. & Anr. ; Raja Ram vs Mata Prasad and Anr.
AIR 1972 All. 167; Mallidei and Anr.
vs Kanchan Prana Dei AIR 1973 Orissa 83; Lakshmi Amma and Anr.
vs Saguna Bhagathi & Ors.
ILR 1973 Karnataka 827; Atmaram Mohanlal Panchal vs Gunavantiben and Ors.
AIR 1977 Gujarat 134 approved.
Karuppa Gounder & Ors.
vs Palaniammal & Ors.
AIR 1963 Madras 245; B. M. Mundkur vs Life Insurance Corporation of India and Ors.
AIR 1977 Mad. 72, discussed and distinguished.
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254 of 1954.
Under article 32 of the Constitution for the enforcement of fundamental rights.
The petitioner in Person.
M. C. Setalvad, Attorney General for India, (G. N. Joshi and P.G. Gokhale, with him) for the respondents.
The Judgment of the Court was delivered by BOSE J.
This is a petition under article 32 of Constitution and raises the same question on the merits as in the connected summons case in which we have just delivered judgment.
The facts will be found there.
In the present matter it is enough to say that no question arises about the breach of a fundamental right.
But as a matter touching the jurisdiction of the Bar Council Tribunal and that of the Bombay High Court was argued, we will deal with it shortly.
Mr. G 's first objection is that the proceedings before the Tribunal were ultra vires because there was no proper order.
of appointment.
At a very early stage he applied to the Registrar and also to the Prothonotary for a copy of the order of the Chief Justice constituting 502 the Tribunal.
He was told by the Prothonotary that the order was oral.
Mr. ' G ', put in two written statements before the Tribunal and did not challenge this statement of fact in either.
He contented himself with saying that the 'order was not "judicial" and so was not valid.
He took up the same attitude in the High Court.
The learned Judges said "The record clearly shows that when it came to, the notice of this Court it was decided to refer this case to the Bar Council under section 10(2) and accordingly a Tribunal was appointed under section 11(1) by the learned Chief justice of this Court.
" In his petition to this Court he did not challenge this statement of fact but again confined his attack to the question of the validity of the order.
It is evident from all this that the fact that an oral order was made was not challenged.
We cannot allow Mr. 'G ' to go behind that.
The next question is whether an oral order is enough: Bar Councils Act does not lay down any procedure.
All it says is Section 10(2): ". . . the High Court may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty." and section 11 (2) says "The Tribunal shall consist of not less than three. . members of the Bar Council appointed for the purpose of the inquiry by the Chief Justice.
" We agree it is necessary that there should be some record of the order on the files but, in our opinion, the order itself need not be a written one; it can be an oral order given to a proper officer of the Court.
In the present case, the letter No. G 1003 dated 29th April, 1953, of the Prothonotary to the Registrar and the letter No. E. 41 09/53 dated the 1st May, 1953, of the Registrar to the Bar Council (office copies of which were retained on the files) are a sufficient record of the making of the order.
Mr. 'G ' was supplied with copies 503 of those letters and so was aware of the fact that orders had been issued.
As a matter of fact, we have seen the originals of the High Court 's office files and find that the names of the three members of the Tribunal are in the Chief Justice 's handwriting with his initials underneath.
That is an additional record of the making of the order.
We hold that an order recorded in the, manner set out above is sufficient for the purposes of sections 10(2) and 11(2) of the Bar Councils Act and hold that the Tribunal was validly appointed.
Mr. G 's next point is that there was no "complaint" to the High Court and so it had no jurisdiction to refer the matter to the Tribunal.
This ignores the fact that the High Court can refer a matter of this kind "of its own motion" under section 10(2) of the Bar Councils Act.
We have dealt with the merits in the connected case.
This petition is dismissed but, here again, we make no order about costs.
Petition dismissed.
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The order under section 10(2) of the , given to a proper officer of the Court may be an oral order and need not be a written one.
The High Court can under section 10(2) refer a case on its own motion.
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Case :- APPLICATION U/S 482 No. - 434 of 2023
Applicant :- Chandrapal
Opposite Party :- State Of U.P. And 4 Others
Counsel for Applicant :- Hardev Prajapati
Counsel for Opposite Party :- G.A.
Heard Shri Hardev Prajapati, learned counsel for the applicant
and learned A.G.A. Perused the record.
It is contended by learned counsel for the applicant that
respondent nos.3, 4 and 5 are the accused of Special Session
Trial No.183 of 2015 (State vs. Jay Prakash and others) u/s 436,
395, 397 I.P.C., P.S.-Qadar Chowk, District Budaun. It is further
contended by learned counsel for the applicant that respondent
nos.3, 4 and 5 are the police personnel, who are being accused,
but they are not co-operating with the trial.
It is shocking to see that non bailable warrants were issued
against the respondent nos.3, 4 and 5 for the first time way back
on 20.7.2016 and now we are in January, 2023 but after lapse of
even six years, learned Additional District Judge/Special
Court/D.A.A., Badaun was unable to get the non bailable
warrants executed against police personnel. Indeed it is a
shocking state of affairs. The police personnel are not above the
law and the application of law and legal provisions should be
one and same for all and no special treatment shall be given to
any person depending upon his position, power and place in the
society.
Under these circumstances, learned Additional District
Judge/Special Court/D.A.A., Badaun is required to give written
explanation as to why order dated 20.7.2016 issuing non
bailable warrants has not been complied with till date.
Let this matter be come on the board once again on 01.2.2023
as fresh.
By that time this Court expects that if there is no other legal
impediment, the learned Additional District Judge/Special
Court/D.A.A., Badaun shall execute his own non bailable
warrants against the respondent no.3, 4 and 5 and give a report
to this effect by the next date fixed.
Let this order may be handed over to the learned A.G.A. for
communication and compliance.
High Court of Judicature at Allahabad
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The Allahabad High Court recently expressed shock over the non-execution of non-bailable warrants against police personnel accused in a criminal case for 6 years.
The Court also sought a written response from the Additional District Judge/Special Court/D.A.A., Badaun explaining why the order of July 2016 issuing non-bailable warrants has not been complied with to date.
“It is shocking to see that non-bailable warrants were issued against the respondent nos.3, 4 and 5 (police personnel) for the first time way back on 20.7.2016 and now we are in January 2023 but after the lapse of even six years, learned Additional District Judge/Special Court/D.A.A., Badaun was unable to get the non-bailable warrants executed against police personnel,” the bench of Justice Rahul Chaturvedi said.
The bench further added that police personnel are not above the law and the application of law and legal provisions should be one and same for all and no special treatment shall be given to any person depending upon his position, power and place in the society.
The matter came to light while the court dealing with a Section 482 CrPC plea wherein the applicant contended that respondents nos.3, 4 and 5 (police personnel) are the accused in a case u/s 436, 395, 397 IPC, but they are not cooperating with the trial.
Calling it a shocking state of affairs that the NBW was issued against them in the year 2016, however, the same remained unexecuted to date, the Court sought a written explanation from the Court concerned.
The Court also asked the Court concerned to execute non-bailable warrants against respondents no.3, 4 and 5 and give a report to this effect by the next date fixed (February 1, 2023).
Appearances
Counsel for Applicant: Hardev Prajapati
Counsel for Opposite Party: G.A.
Case title - Chandrapal vs. State Of U.P. And 4 Others [APPLICATION U/S 482 No. - 434 of 2023]
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, right in holding that Respondent No. 1 was a 'workman ' and in granting relief on that basis.
[996E] & CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3521 3523 of 1987.
From the Judgment and order dated 17.10.
1986 of the Rajasthan High Court in D.B. Civil Special (Writ) Appeals Nos.
27,28 of 1983 and 224 of 1982.
Dr. Shankar Ghosh, N.C. Shah and Praveen Kumar for the Appellant.
Tapas Ray, S.K. Jain, Mrs. P.Jain and section Atreya for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
After hearing parties and after considering the relevant documents, additional as well as original, we grant leave to appeal in these matters.
The appeals are disposed of by the judgment herein.
989 Since prior to Ist of January, 1978 the respondent No. 1 Shri Kishan Bhageria was working under the appellant company as an Internal Auditor on a monthly salary of Rs.1186.60 per month.
The appellant alleged that the respondent started absenting himself from 28.1.78 and as such was not entitled to any salary for any period beyond 28.1.78 The said respondent was thereafter placed under suspension on 30th of March, 1978.
The respondent on 4th of May, 1978 filed an application under section 33C(2) of the (hereinafter called 'the Act ') claiming the total sum of Rs.4,746.40 on account of salary from Ist of January, 1978 to 30th of April, 1978 at the rate of Rs.11,86.60 per month.
The appellant company objected.
The main ground of objections was that the respondent was not a workman.
On or about 9th of November, 1978 there was an order dismissing the respondent from service.
The respondent thereafter on 2nd of January, 1979 filed an application under section 28A of the Rajasthan Shops & Establishments Act, 1958 (hereinafter called 'the Rajasthan Act ').
The said application was dismissed on 31st of July 1979 on the ground of limitation.
The Labour Court on 2nd of August, 1979 held that the respondent was doing clerical duties and as such was a workman under the Act and he was entitled to Rs.2,060 as salary from 1.1.78 to 9.3.78.
The appellant filed Writ Petition No. 765 of 1979 in the Rajasthan High Court against the order of the Labour Court allowing the said salary.
The respondent also filed another writ petition being writ petition No. 1091 of 1979 for declaration that he was entitled to receive Rs.2,066.98 as salary from 9.3.78 to 30.4.78.
There was thereafter a reference under section 10 of the Act on 8.8.80 arising out of the dismissal of the respondent.
The appellant filed another writ petition being Writ Petition No. 1623 of 1980 challenging the order of reference.
All these aforesaid writ petitions were disposed of by the learned Single Judge of the Rajasthan High Court on 16.3.82 holding that the respondent was not a workman.
The other contentions urged before the leaned Single Judge were not considered by the Division Bench in the view it took later on.
On 17th of October, 1986 the Division Bench reversed the judgment of the learned Single Judge and held that the respondent was a workman.
Two writ petitions of the appellant were dismissed and the writ petition of the respondent was allowed.
Aggrieved by the aforesaid orders the appellant has come up in these appeals before this Court.
The main question which requires consideration in these appeals is whether the respondent was a workman or not.
For the determination of this question it is necessary to refer to section 2(s) of the Act which defines "workman" and states that it means any person emp 990 loyed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes any such person who has been dismissed discharged or retrenched in connection with or as a consequence of any dispute.
But sub clause (iii) does not include any person who is employed mainly in a managerial or administrative capacity and sub clause (iv) does not include any person who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per month or duties attached to the office or by reason of the powers vested in him, discharges functions mainly of a managerial nature.
In view of the said definition, we are concerned here with the question whether the respondent was a workman as not being employed in any supervisory capacity.
There is no controversy that the said respondent is not employed in any managerial or administrative capacity.
In this case before we deal with the facts and the relevant authorities of this Court it may be appropriate to refer to a decision of P.B. Mukharji, J. Of the Calcutta High Court as the learned Chief Justice then was in Mcleod and Co. vs Sixth Industrial Tribunal, West Bengal and others, A.I.R. 1958 Calcutta 273.
There the learned Judge observed that whether a person was a workman within the definition of the was the very foundation of the jurisdiction of the Industrial Tribunal.
The Court further observed that in order to determine the categories of service indicated by the use of different words like "supervisory", "managerial", "administrative", it was necessary not to import the notions of one into the interpretation of the other.
The words such as supervisory, managerial and administrative are advisedly loose expressions with no rigid frontiers and too much subtlety should not be used in trying to precisely define where supervision ends and management begins or administration starts.
For that would be theoretical and not practical.
It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application.
The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge functions mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him.
In that case the learned Judge further held that a person in charge of a Department could not ordinarily be a clerk even though he may not have power to take disciplinary action or even though he may have another superior 991 officer above him.
It was further observed that distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision.
It is reiterated that a manager or administrator 's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator.
Bearing in mind the aforesaid indication, it would be necessary to discuss some decisions of this Court.
In All India Reserve Bank Employees Association vs Reserve Bank of India, ; , this Court dealing with certain types of employees observed "These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical." At page 46 of the report Hidayatullah, J. as the learned Chief Justice then was observed that the work in a Bank involved layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision, (emphasis supplied).
There the Court referred to a previous decision in Llyods Bank Ltd. vs Pannalal Gupta, , where the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn and it was reiterated that before a clerk could claim a special allowance payable to a supervisor, he must prove that he supervises the work of some others who are in a sense below him.
It was pointed out by Hidayatullah, J. that mere checking of the work of others is not enough because this checking was a part of accounting and not of supervision and the work done in the audit department of a bank was not supervision.
(emphasis supplied).
In Burmah Shell Oil Storage & Distribution Co. Of India.
vs Burmah Shell Management Staff Association & Ors., ; , this Court observed that a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work.
Therefore, in determining which of the employees in the various categories are covered by the definition of 'workman ' one has to see what is the main or substantial work which he is employed to do.
In The Punjab Co operative Bank Ltd. vs R.S. Bhatia (dead) through Lrs., it was held that the accountant was supposed to sign the salary bills of the staff even while performing the duties of a clerk.
That did not make the respondent employed in a managerial or administrative capacity.
The workman was, therefore, in that context rightly held as a clerk. 992 In P. Maheshwari vs Delhi Administration & Ors., ; the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle.
The principle therefore is, one must look into the main work and that must be found out from the main duties.
A supervisor was one who could bind the company to take some kind of decision on behalf of the company.
One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor.
See in this connection Black 's Law Dictionary, Special Deluxe, Fifth Edition.
At page 1290, "Supervisor" has been described, inter alia, as follows: "In a broad sense, one having authority over others, to superintend and direct.
The term 'supervisor ' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
" Reference may be made to the observations of this Court in Ved Prakash Gupta vs M/s. Delton Cable India (P) Ltd., ; There on facts a Security Inspector was held to be a workman.
At page 575 of the report this Court referred to the decision in Llyods Bank Ltd. vs Panna Lal Gupta, (supra) and also the observations of this Court in Hind Construction and Engineering Company Ltd. vs Their Workmen, In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch towers or around the factory or to accompany visitors to the factory and making entries in the visitors ' register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory.
There it was found that he had no power to appoint.
In the instant case the evidence have been summarised by the Division Bench.
Reference may be made to pages 65, 73, 80, 84 to 94, 993 95, 96 and 97 of the Paper Book which indicate the nature of duties performed by the respondent No. 1 herein.
His duties were mainly, reporting and checking up on behalf of the management.
A reporter or a checking clerk is not a supervisor.
The respondent herein does not appear to us doing any kind of supervisory work.
He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company.
In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor.
That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Article 136 of the Constitution.
It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench.
Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date 14th of May, 1976 where the respondent reported that certain materials were lying in stores deptt.
in absence of any decision.
It was further reiterated that on inspection of the pieces that those pieces were found cracked.
Similarly, our attention was drawn to several other letters and we have perused these letters.
We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent.
A checker on behalf of the management or employer is not a supervisor.
In the aforesaid view of the matter the conclusion of the Division Bench that respondent No. 1 is a workman has to be sustained.
We do so accordingly.
The next question that arises in this case is whether Act would apply or the Rajasthan Act would apply.
In this connection section 28A of the Rajasthan Act is material.
It enjoins that no employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee at least one month 's prior notice or on paying him one month 's wages in lieu of such notice.
Sub section (2) of section 28A gives every employee, so dismissed or discharged, right to make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge.
Sub section (3) of section 28A provides that the prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record 994 briefly the evidence produced by the parties, hear them and make such enquiry as it might consider necessary and thereafter pass orders in writing giving reasons therefor.
Section 37 of the Rajasthan Act reads as follows: "37.
Saving of certain rights and privileges.
Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to on the date this Act comes into force under any other law, contract, custom or usage applicable to such establishment or any award, settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act.
" It has to be borne in mind that section 2A of the Act was amended to permit individual workman to ask for a reference in the case of individual dispute.
This amendment was assented to by the President on 1st of December, 1965.
The Rajasthan Act received the assent of the President on 14th of July, 1958.
On 8th March, 1972 Chapter 6A including section 28A was inserted in the Rajasthan Act.
Therefore the material provision of the Rajasthan Act is the subsequent law.
Under Article 254(2) of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List.
It appears that both of these Acts tread the same field and if there was any conflict with each other, then section 28A of Rajasthan Act would apply being a later law.
We find, however, that there is no conflict.
The learned Single Judge of the Rajasthan High Court in Poonam Talkies, Dausa vs The Presiding Officer, Labour Court, Jaipur, (S.B. Civil Writ Petition No. 1206/85 decided on 9.6.1986) so.
That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No. 231/86.
The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy.
It appears to us that it cannot be said that these two Acts do not tread the same field.
Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance.
There is no inconsistency between these two acts.
These two Acts, in our opinion, are supplemental to each other.
995 In Deep Chand vs The State of Uttar Pradesh and others, [1959] Suppl.
2 S.C.R. 8, Subba Rao, J., as the learned Chief Justice then was observed that the result of the authorities indicated was as follows: "Nicholas in his Australian Constitution, 2nd Edition, p. 303, refers to three tests of inconsistency or repugnancy: 1.
There may be inconsistency in the actual terms of the competing statutes; 2.
Though there may be no direct conflict, a State law may be inoperative because the Commonwealth Code is intended to be a complete exhaustive code; and 3.
Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter.
" Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals Ltd. and others vs State of Bihar and others; , at page 87 where A.P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other.
Therefore, in order to raise a question of repugnancy two conditions must be fulfilled.
The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other.
These are two conditions which are required to be fulfilled.
These are cumulative conditions.
Therefore, these laws must tread on the same field and these must be repugnant or inconsistent with each other.
In our opinion, in this case there is a good deal of justification to hold that these laws, the and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee.
But these two laws are not inconsistent or repugnant to each other.
The basic test of repugnancy is that if one prevails the other cannot prevail.
That is not the position in this case.
Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under section 28A of the Rajasthan Act and which was dismissed on ground of limitation.
Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any 996 relief is given under the Act.
We are unable to accept this position, because the application under Section 28A of the Rajasthan Act was dismissed not on merit but on limitation.
There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause.
But there is no period of limitation provided under the .
Therefore, that will be curtailment of the rights of the workmen or employees under the .
In the situation section 37 declares that law should not be construed to curtail any of the rights of the workmen.
As Poet Tennyson observed "freedom broadens from precedent to precedent" so also it is correct to state that social welfare and labour welfare broadens from legislation to legislation in India.
It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed.
Therefore in no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for an adjudication in case of the termination of the employment.
If that is the position in view of the provisions 6 months ' time in section 28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the and that Act must prevail.
In the premises, there is no conflict between the two Acts and there is no question of repugnancy.
The High Court was, therefore, right in holding that the respondent was workman and in granting relief on that basis.
Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice.
Reference was made to certain observations in P. Maheshwari vs Delhi Admn.
& Ors., (supra).
But as mentioned hereinbefore in this case, the interference was made by the High Court not at the initial stage.
In the premises, we are of the opinion that the High Court was right in the view it took.
These appeals, therefore, fail and are accordingly dismissed.
There will, however, be no order as to costs.
The reference before the Tribunal should proceed as expeditiously as possible.
N.V.K. Appeals dismissed.
|
% The Ist respondent was working in the appellant company as an Internal Auditor on a monthly salary of Rs.1186 60P per month.
The appellant alleged that the respondent started absenting himself from 28th January, 1978 and as such was not entitled to any salary for any period beyond the said date.
The respondent was thereafter placed under suspension on 30th March, 1978.
On 4th May, 1978 the respondent filed an application under section 33C(2) of the claiming a total sum of Rs.4746 40p on account of salary from Ist January, 1978 to 30th April, 1978.
The appellant objected on the ground that the respondent was not a 'workman '.
On 9th November, 1978 there was an order dismissing the respondent from service.
On 2nd January, 1979 the respondent filed an application under section 28A of the Rajasthan Shops and Commercial Establishments Act, 1958 which was dismissed on 31st July, 1979 on the ground of limitation.
On the 2nd August, 1979 the Labour Court held that the respondent was doing clerical duties and as such was a 'workman ' under the and he was entitled to Rs.2060 98p as salary 986 from 9th March, 1978 to 30th April, 1978.
There was also a reference under section 10 of the on 8th August, 1960 arising out of the dismissal of the respondent.
The appellant filed a writ petition challenging this order.
All the aforesaid writ petitions were disposed of by a Single Judge of the High Court on 16th March, 1982 holding that the respondent was not a 'workman '.
Division Bench of the High Court, however reversed the aforesaid judgment and held that the respondent was a 'workman '.
The two writ petitions of the appellant were dismissed, while the writ petition of the respondent was allowed.
Aggrieved by the aforesaid orders the appellant appealed to this Court.
On the questions: (1) whether the respondent was a 'workman ' or not within the definition of section 2(s) of the and (2) whether the or the Rajasthan Shops and Commercial Establishments Act, 1958 would apply.
Dismissing the appeals, ^ HELD: 1.(a) Whether a person was performing supervisory or managerial work is a question of fact.
One must, therefore, look into the main work and that must be found out from the main duties.
A supervisor has to take some kind of decision on behalf of the company.
One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting is not supervisor.
[992A B] (b) There is no controversy in the instant case, that the respondent is not employed in any managerial or administrative capacity.
Distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision.
A manager or administrator 's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator.
Where there is a power of assigning duties and distribution of work there is supervision.
[990C,991A B,991D] Mcleod and Co. vs Sixth Industrial Tribunal West Bengal and others, A.I.R. 1958 Calcutta 273; All India Reserve Bank Employees Association vs Reserve Bank of India, ; ; Llyods Bank 987 Ltd. vs Pannalal Gupta, ; Burmah Shell Oil Storage & Distribution Co.
Of India.
vs Burmah Shell Management Staff Association & Ors. ; ; The Punjab Co operative Bank Ltd. vs R.S. Bhatia (dead) through Lrs, ; Maheshwari vs Delhi Administration Delton Cable India (P) Ltd.; , and Hind Construction and Engineering Company Ltd. vs Their Workmen, referred to.
(c) A checker on behalf of the management or employer is not a supervisor.
[993E] In the instant case, the nature of duties performed by Respondent No. 1 were mainly reporting and checking up on behalf of the management.
A reporter or a checking clerk is not a supervisor.
The respondent does not appear to be doing any kind of supervisory work.
He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company.
The Division Bench came to the conclusion that the respondent was a 'workman ' within the meaning of section 2(s) of the taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor.
That conclusion on the appreciation of evidence cannot be interfered with under Article 136 of the Constitution.
[993A C] 2.(a) In order to raise the question of repugnancy two conditions must be fulfilled.
The State law and the Union law must operate in the same field and one must be repugnant or inconsistent with the other.
These are two cumulative conditions which are required to be fulfilled.
[995E] Deep Chand vs The State of Uttar Pradesh and others, [1959] Suppl.
2 S.C.R. 8 and M/s. Hoechst Pharmaceuticals Ltd. and others vs State of Bihar and others; , at page 87 referred to.
(b) In this case there is a good deal of justification to hold that these laws, the and the Rajasthan Shops and Commercial Establishments Act, 1985 tread on the same field and both laws deal with the rights of a dismissed workman or employee.
But these two laws are not inconsistent or repugnant to each other.
The basic test of repugnancy is that if one prevails the other cannot prevail.
That is not the position in this case.
[995F G] 988 (c) The application under section 28A of the Rajasthan Act was dismissed not on merits but on limitation.
There is a period of limitation provided under the Rajasthan Act and it may be extended for reasonable cause.
But there is no period of limitation as such provided under the .
Therefore, that will be curtailment of the rights of the workmen or employees under the .
In that situation section 37 declares that law should not be construed to curtail any of the rights of the workmen.
[996A B] (d) Social Welfare and labour welfare broadens from legislation to legislation in India.
It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed.
In no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for adjudication in case of the termination of the employment.
[996C] (e) There is, therefore, no conflict between the and Rajasthan Shops and Commercial Establishments Act, 1985 and there is no question of repugnancy.
These two Acts are supplemental to each other.
[994G H; 996D]
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1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 14.08.2019 passed by the High Court of
Judicature at Patna in Criminal Miscellaneous Application No.
50530 of 2019, by which the High Court has allowed the said
bail to respondent No.2 herein – accused, the original informant
– complainant has preferred the present appeal.
2. That first information report came to be filed by the appellant
herein against respondent No.2 with Chapra Town Police
Station, Saran in case No.453 of 2018 for the offences
punishable under sections 406, 407, 468, 506 of the Indian
Penal Code, 1860. A warrant of arrest came to be issued by
learned Chief Judicial Magistrate, Saran, Chapra on
19.12.2018. It appears that thereafter respondent No.2 –
accused is absconding and concealing himself to avoid service
of warrant of arrest. Thereafter learned Chief Judicial
Magistrate issued a proclamation against respondent No.2
under section 82 Cr.PC. Only thereafter and issuance of
proclamation under section 82 Cr.PC, respondent No.2 –
accused filed anticipatory bail application before learned Trial
Court. By a detailed order dated 29.01.2019 the learned Trial
Court dismissed the said anticipatory bail application and
rejected the prayer for anticipatory bail on merits as well as on
the ground that as the accused is absconding and even the
proceedings under section 82/83 Cr.PC have been issued, the
accused is not entitled to the anticipatory bail. That thereafter
the accused approached the High Court by way of present
application and despite the fact that it was specifically pointed
to the High Court that since the process of proclamation under
section 82 & 83 Cr.PC have been issued, the accused should
not be allowed the privilege of anticipatory bail, ignoring the
aforesaid relevant aspect, by the impugned judgment and order
the High Court has allowed the said anticipatory bail by
observing that in the event of his arrest/surrender within six
weeks in the Court below, he may be released on bail on
furnishing bail bond of Rs.10,000/ with two sureties of the like
amount each to the satisfaction of the learned Chief Judicial
Magistrate, Saran, Chapra and subject to the conditions as laid
down under section 438 (2) of Cr.PC.
3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court granting anticipatory bail to
respondent No.2 – accused, the original informant/complainant
– appellant has preferred the present appeal.
4. Shri Rituraj Biswas, learned Advocate appearing on behalf of
the appellant has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a
grave error in allowing the anticipatory bail application.
4.1 It is submitted that considering the fact that the accused was
avoiding the arrest and even did not cooperate with
investigating agency and even after the arrest warrants were
issued, the proceedings under sections 8283 of Cr.PC were
initiated, the High Court ought not to allow the anticipatory bail
application.
4.2 It is submitted that though the factum of initiation of
proceedings under Section 8283 of Cr.PC was pointed out, the
High Court has simply ignored the same.
4.3 It is further submitted that even the High Court has not at all
considered the seriousness of the offences alleged namely the
offences under sections 406, 420 of IPC, which were in detail
considered by the learned Trial Court while rejecting the
anticipatory bail application.
4.4 It is submitted that the High Court has granted the anticipatory
bail to respondent No.2 solely observing that the nature of
accusation arising out of a business transaction. It is submitted
that merely because it was a business transaction, without
further considering the nature of allegations the High Court
ought not to have granted the anticipatory bail to respondent
No.2 – accused.
4.5 Relying upon the decision of this court in case of State of
Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC
171, it is submitted that as observed and held by this court a
person against whom the proclamation has been issued and the
proceedings under sections 8283 of Cr.PC have been initiated,
is not entitled to the benefit of anticipatory bail.
4.6 It is further submitted that even subsequently a chargesheet
has been filed against the accused – respondent No.2 for the
offences punishable under sections 406 and 420 of IPC.
4.7 Making the above submissions and relying upon above decision
of this court, it is prayed to allow the present appeal and quash
and set aside the impugned judgment and order passed by the
High Court granting anticipatory bail to respondent No.2 –
accused.
5. Shri Devashish Bharuka, learned Advocate appearing on behalf
of the State has supported the appellant and has submitted
that on being found a prima facie case against respondent No.2
– accused, a chargesheet has been filed against the accused
under sections 406 and 420 of IPC also.
6. Shri Abhishek, learned Advocate appearing on behalf of
respondent No.2 has vehemently submitted that in the facts
and circumstances of the case, the High Court has not
committed any error in granting anticipatory bail to respondent
No.2 – accused.
6.1 It is submitted that the High Court has rightly observed that the
nature of accusation is arising out of a business transaction. It
is submitted that merely because the cheque was given and the
same came to be dishonored it cannot be said that the offences
under sections 406 and 420 of IPC is made out. It is submitted
that at the most the case may fall under section 138 of
6.2 It is submitted that as such respondent No.2 – accused was
available for interrogation and therefore there is no question of
absconding.
6.3 It is further submitted by the learned counsel appearing on
behalf of respondent No.2 – accused that at this stage only the
chargesheet has been filed in the court, but the learned
Magistrate has yet to take cognizance of the same.
7. We have heard the learned counsel appearing on behalf of the
appellant – original informant complainant as well as learned
counsel appearing on behalf of the State and the learned
counsel appearing on behalf of respondent no.2 accused.
7.1 It is required to be noted that after investigation a chargesheet
has been filed against respondent no.2 – accused for the
offences punishable under sections 406, 420 of IPC also. Thus
it has been found that there is a prima facie case against the
accused. It has come on record that the arrest warrant was
issued by the learned Magistrate as far as back on 19.12.2018
and thereafter proceedings under sections 8283 of Cr.PC have
been initiated pursuant to the order passed by the learned Chief
Judicial Magistrate dated 10.01.2019. Only thereafter
respondent No.2 moved an application before the learned Trial
Court for anticipatory bail which came to be dismissed by the
learned Additional Sessions Judge, Saran, by a reasoned order.
The relevant observations made by the learned Additional
Sessions Judge, Saran, while rejecting the anticipatory bail
“Perused the record. The prosecution case as
alleged in the typed application of the informant
Prem Shankar Prasad is that the informant is a
retailer shopkeeper of medicines in the name of
Maa Medical Store, Gandhi Chauk, Chapra and the
petitioner is his stockiest who runs his business in
the name of Rajnish Pharma, Mauna Pakari. The
petitioner and the informant were on good terms,
so, the informant gave Rs. 36,00,000/ to the
petitioner in case and through cheque for purchase
of medicine. When the required were not supplied
to the informant, the informant demanded his Rs.
36,00,000/ then, the petitioner gave a cheque of
Rs. 10,00,000/ bearing cheque no. 137763 dated
25.11.2017 which was in the Canara Bank of the
petitioner which was dishonored by the bank with
a note "insufficient fund". Thereafter the informant
demanded his money in case. On 20.06.18 but, the
brothers of the petitioner misbehaved with the
informant. The brothers of the petitioner also
threatened not to contact the police or the
consequences will be worst: On this informant
Chapra Town PS No. 453/2018 was registered and
investigation proceeded.
Perused the case diary from which it transpires
that in para 4 there is a restatement of the
informant in which he has supported the
prosecution case. In para 8, 9, 10, and 11 witness
Kumar and Uday Shankar Prasad has been
examined under section 161 of Cr.PC in which they
have supported the prosecution case. In para 16
there is supervision note of SDPO, Sadar in which
prosecution case. In found true under sections
420, 406 of IPC and 138 of NI Act. In para 23
processes under sections 82 and 83 of Cr.PC have
been issued against the petitioner in para 38 there
is a statement of witness Ashutosh Mishra who is a
medical representative and has stated that Rajnish
Srivastava, being stockiest of the medicine used to
sell the medicines of his company in course
whereof he has borrowed a sum of Rs. 7,10,000/
from him. When he asked to return back the
money he has issued a cheque of the aforesaid
amount which was dishonor by his bank due to
insufficient fund. In para 39 another witness
Pramod Kumar Thakur has been examined who
has deposed that this petitioner Rajnish Srivastava
has borrowed a sum of Rs. 10,00,000/ on the
pretext of purchasing a piece of land. When he
demanded his money back. Rajnish Srivastava
gave a cheque of the aforesaid amount which was
dishonored by the bank. The investigation in the
case is still going on.
From perusal of the case record I find that the
informant has alleged to have given a sum of Rs.
36,00,000/ to this petitioner in order to supply
certain medicines which was neither supplied nor
the amount was ever refunded. Admittedly, the
said amount was given to the petitioner on an oral
undertaking as there is nothing on record to
substantiate the aforesaid averments, but, the fact
remains that the petitioner in order to refund the
said amount has issued a cheque of
Rs.10,00,000/ bearing cheque no. 137763 dated
25.11.2017 which was deposed by the informant in
the bank, but, the same was dishonored with
record I further find that the petitioner is in the
habit of borrowing money from different persons
and then used to make default in payment
inasmuch as by issuing cheques without sufficient
balance in his account which transpires form paras
38 and 39 of the case diary.”
7.2 Despite the above observations on merits and despite the fact
that it was brought to the notice of the High Court that
respondent No.2 – accused is absconding and even the
proceedings under sections 8283 of Cr.PC have been initiated
as far as back on 10.01.2019, the High Court has just ignored
the aforesaid relevant aspects and has granted anticipatory bail
to respondent No.2 – accused by observing that the nature of
accusation is arising out of a business transaction. The specific
allegations of cheating, etc., which came to be considered by
learned Additional Sessions Judge has not at all been
considered by the High Court. Even the High Court has just
ignored the factum of initiation of proceedings under sections
8283 of Cr.PC by simply observing that “be that as it may”. The
aforesaid relevant aspect on grant of anticipatory bail ought not
to have been ignored by the High Court and ought to have been
considered by the High Court very seriously and not casually.
7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma
(Supra), it is observed and held by this court that if anyone is
declared as an absconder/proclaimed offender in terms of
section 82 of Cr.PC, he is not entitled to relief of anticipatory
bail. In paragraph 14 to 16, it is observed and held as under:
“14. In order to answer the above question, it is
desirable to refer to Section 438 of the Code which
“438. Direction for grant of bail to person
apprehending arrest.—(1) Where any
person has reason to believe that he may be
arrested on accusation of having committed
a nonbailable offence, he may apply to the
High Court or the Court of Session for a
direction under this section that in the event
of such arrest he shall be released on bail;
and that court may, after taking into
consideration, inter alia, the following
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including
the fact as to whether he has previously
undergone imprisonment on conviction by a
court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee
(iv) where the accusation has been made
with the object of injuring or humiliating the
applicant by having him so arrested,
either reject the application forthwith or
issue an interim order for the grant of
Provided that, where the High Court or, as
the case may be, the Court of Session, has
not passed any interim order under this sub
section or has rejected the application for
grant of anticipatory bail, it shall be open to
an officer in charge of a police station to
arrest, without warrant the applicant on the
basis of the accusation apprehended in such
application.”
The above provision makes it clear that the power
exercisable under Section 438 of the Code is
somewhat extraordinary in character and it is to be
exercised only in exceptional cases where it appears
that the person may be falsely implicated or where
there are reasonable grounds for holding that a
person accused of an offence is not likely to
otherwise misuse his liberty.
15. In Adri Dharan Das v. State of W.B. [(2005) 4 SCC
303] this Court considered the scope of Section 438
of the Code as under : (SCC pp. 31112, para 16)
“16. Section 438 is a procedural provision
which is concerned with the personal liberty
of an individual who is entitled to plead
innocence, since he is not on the date of
application for exercise of power under
Section 438 of the Code convicted for the
offence in respect of which he seeks bail. The
applicant must show that he has ‘reason to
believe’ that he may be arrested in a non
bailable offence. Use of the expression
‘reason to believe’ shows that the belief that
the applicant may be arrested must be
founded on reasonable grounds. Mere ‘fear’
is not ‘belief’ for which reason it is not
enough for the applicant to show that he has
some sort of vague apprehension that
someone is going to make an accusation
against him in pursuance of which he may
be arrested. Grounds on which the belief of
the applicant is based that he may be
arrested in nonbailable offence must be
capable of being examined. If an application
is made to the High Court or the Court of
Session, it is for the court concerned to
decide whether a case has been made out for
granting of the relief sought. The provisions
cannot be invoked after arrest of the
accused. A blanket order should not be
generally passed. It flows from the very
language of the section which requires the
applicant to show that he has reason to
believe that he may be arrested. A belief can
be said to be founded on reasonable grounds
only if there is something tangible to go by
on the basis of which it can be said that the
applicant's apprehension that he may be
arrested is genuine. Normally a direction
should not issue to the effect that the
applicant shall be released on bail ‘whenever
arrested for whichever offence whatsoever’.
Such ‘blanket order’ should not be passed as
it would serve as a blanket to cover or
protect any and every kind of allegedly
unlawful activity. An order under Section
438 is a device to secure the individual's
liberty, it is neither a passport to the
commission of crimes nor a shield against
any and all kinds of accusations likely or
unlikely. On the facts of the case, considered
in the background of the legal position set
out above, this does not prima facie appear
to be a case where any order in terms of
Section 438 of the Code can be passed.”
16. Recently, in Lavesh v. State (NCT of Delhi) [(2012)
8 SCC 730] , this Court (of which both of us were
parties) considered the scope of granting relief under
Section 438 visàvis a person who was declared as
an absconder or proclaimed offender in terms of
Section 82 of the Code. In para 12, this Court held as
“12. From these materials and information, it
is clear that the present appellant was not
available for interrogation and investigation
and was declared as ‘absconder’. Normally,
when the accused is ‘absconding’ and
declared as a ‘proclaimed offender’, there is
no question of granting anticipatory bail. We
reiterate that when a person against whom a
warrant had been issued and is absconding
or concealing himself in order to avoid
execution of warrant and declared as a
proclaimed offender in terms of Section 82 of
the Code he is not entitled to the relief of
anticipatory bail.”
It is clear from the above decision that if anyone is
declared as an absconder/proclaimed offender in
terms of Section 82 of the Code, he is not entitled to
the relief of anticipatory bail.”
Thus the High court has committed an error in granting
anticipatory bail to respondent No.2 – accused ignoring the
proceedings under Section 8283 of Cr.PC.
8. Even the observations made by the High Court while granting
the anticipatory bail to respondent No.2 – accused that the
nature of accusation is arising out of a business transaction
and therefore the accused is entitled to the anticipatory bail is
concerned, the same cannot be accepted. Even in the case of a
business transaction also there may be offences under the IPC
more particularly sections 406, 420, 467, 468, etc. What is
required to be considered is the nature of allegation and the
accusation and not that the nature of accusation is arising out
of a business transaction. At this stage, it is required to be
noted that respondent No.2 accused has been chargesheeted
for the offences punishable under sections 406 and 420, etc.
and a chargesheet has been filed in the court of learned
9. In view of the above and for the reasons stated above, the
impugned judgment and order dated 14.08.2019 passed by the
High Court granting anticipatory bail to respondent No.2 –
accused is unsustainable and deserves to be quashed and set
aside and is accordingly quashed and set aside. However, two
weeks’ time from the date of pronouncement of this judgment is
granted to respondent No.2 to surrender before the concerned
Trial Court and thereafter it will be open for respondent No.2 –
accused to pray for regular bail, which may be considered in
accordance with law and on its own merits. The present appeal
is accordingly allowed in the aforesaid terms.
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The Supreme Court observed that an absconder/proclaimed offender is not entitled to relief of anticipatory bail.In this case, the Trial Court dismissed the anticipatory bail application on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail. Thereafter, the accused...
The Supreme Court observed that an absconder/proclaimed offender is not entitled to relief of anticipatory bail.
In this case, the Trial Court dismissed the anticipatory bail application on the ground that as the accused is absconding and even the proceedings under section 82/83 Cr.PC have been issued, the accused is not entitled to the anticipatory bail. Thereafter, the accused approached the High Court which granted the anticipatory bail.
In appeal , the state relied upon the judgment in case of State of Madhya Pradesh vs. Pradeep Sharma reported in (2014) 2 SCC 171,to contend that a person against whom the proclamation has been issued and the proceedings under sections 82-83 of Cr.PC have been initiated, is not entitled to the benefit of anticipatory bail.
The court noted that the High Court ignored the factum of initiation of proceedings under sections 82-83 of Cr.PC by simply observing that "be that as it may".
"In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail", the bench comprising Justices MR Shah and AS Bopanna observed.
The bench further observed that even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction, the court observed while allowing the appeal.
Case no. and Date: CrA 1209 OF 2021 | 21 October 2021
Coram: Justices MR Shah and AS Bopanna
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The State of Maharashtra ...Appellant
vs.
Kuldeep Subhash Pawar
R/o. Bambawade, Tal.: Tasgaon
District Sangli ...Respondent
Mr. N. B. Patil – APP for the Appellant-State
Mr. Aashish Satpute – Appointed as amicus curiae for the
Respondent
1.Heard learned APP Shri Patil for the Appellant-State and
learned Advocate Shri Satpute appointed by way of Legal Aid to
represent the Respondent.
2.Respondent is acquitted by the Court of JMFC, Tasgaon
on 24/08/2011 in S.C.C. No. 274 of 2009. He was charged for being
responsible of the death of the bicycle driver and one bullock. The
Respondent is driver of Tata Sumo jeep bearing no.
MH-10-AG/3440. The incident took place on 01/11/2009 at an early
hour of the day i.e. 8.30 a.m. on a public road. The spot is situated
on a road going from Manerajuri to Kumtha village in the village
Seema 1/5
Uplavi Taluka – Tasgaon. The first informant was driving his bullock
cart. Whereas one Balaso Krushna Mane, resident of village Uplavi
was driving bicycle. The Tata sumo driver dashed to the bullock cart
and also to the bicycle. The intimation was given to Tasgaon Police
Station. Initially investigation was carried out by P .W . No. 5 -ASI
Mahavir Bapu Chougale. He found the negligence of the Respondent
– accused and that is why F .I.R. is registered on 01/11/2009 for the
offence punishable under Sections 279, 337, 338, 304-A of the
Indian Penal Code and under Section 134 of the Motor Vehicles Act.
3.During trial five witnesses were examined. P .W . No. 1-
Vasant Desai, who is owner of the bullock cart. Whereas P .W . No. 2-
Jotiram Patil was passerby and eye witness. P .W . No. 3- Subhash
Chavan is a Police Patil who visited the spot after getting information
about the accident. P .W . No. 4- Balasaheb Patil is spot panch and
Panch No. 5- Mahavir Chougule is investigating officer.
4.With the assistance of both the sides, I have gone
through the evidence. It is important to note that the P .W . No. 1 and
P .W . 2 while giving evidence had given exact opposite direction of the
bullock cart. That is to say whether the bullock cart was going from
Southern to Northern direction or Northern to Southern direction. As
per the P .W . No. 1, he was going from Northern to Southern
Seema 2/5
direction. Whereas as per P .W . No. 2, the bullock cart was going from
Southern to Northern direction.
5.During cross-examination of the P .W . No. 2, he has
admitted that he has not stated before the Police that he had seen
the incident from the distance of 50 feet. He was resident of the
same village which bullock cart owner P .W . No. 1 resides. Rather
than this version of the P .W . No. 2, we have to consider the version
given by the bullock cart driver P .W . No. 1.
6.The question does not ends there. It is important to
consider in what direction the Tata sumo driver was driving his jeep.
According to the P .W . No. 1 Tata sumo came from northern side and
it came from Sangli side. There is also confusion about location of
the Sangli. It is important to consider the situation at the spot. As per
the spot panchnama, the bullock cart was lying on a Southern side
and facing Eastern side. It is probable that this location is correct
because bullock cart driver says that he was going from Northern to
Southern side. About location of the bullock cart also P .W . No. 4 –
panch witness has said differently. According to him, the bullock cart
was found towards northern side of the road. It means just opposite
of road described in the spot panchnama. P .W . No. 2 had given
certain description of the direction. Village Sangli is towards
Seema 3/5
western side whereas Uplavi village wherein the bullock cart was
moving was on southern side. If the Tata sumo driver is coming from
Sangli side, it is on the Western side. Whereas P .W . No. 1 has said
that he was coming from the northern side.
7.With the assistance of both the sides, I am trying to
understand the direction as per documentary evidence and the oral
evidence. We have tried to understand it from various angles but we
could not arrived at a particular conclusion what are the directions.
8.It is really strange state of affairs, when such matters are
conducted neither Investigating Officer has prepared a map/rough
sketch, nor trial court has taken pains in recording directions
correctly in the evidence. If there is some confusion, the trial Court
could have clarified it from the witnesses by putting questions which
is permissible by law.
9.It has also come on record that there are tea stalls
situated around the spot and learned Advocate Shri Satpute tried to
submit that statements of such persons were not recorded. Police
Patil is not the eye witness to the incident as evidence is only
relevant to what he has seen after the incident. P .W . No. 2 has given
direction contrary to what has been given by P .W . No. 1. It is difficult
to believe him.
Seema 4/5
10.So we do not find any evidence to corroborate the
version given by the P .W . No. 1. No doubt he said that Tata sumo
came speedily. It has to be appreciated on the basis of other available
materials. Act of the driving is punishable only when it is rash and
negligence. Rashness implies the speed which is unwarranted.
Whereas act of the negligence involves not taking proper care and
attention while driving.
11.It is true that the consequence of the accident are the
death of the one bullock and the bicycle driver. For want of evidence,
the trial court could not come to the conclusion about rash and
negligent driving by the Respondent. Even this Court is unable to
come to that conclusion for the above reasons.
12.So this Court has no alternative but to confirm the
findings of the trial Court. Hence the finding cannot be interfered
with. Hence appeal is dismissed.
13.Office to pay necessary fees to the learned Advocate Shri
Satpute for the assistance given by him.
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The Bombay High Court earlier this month observed that driving at high speed alone will not attract the offence of rash and negligent driving [State of Maharashtra v. Kuldeep Pawar]
Single-judge Justice SM Modak said that the offence of rash and negligent driving needs to satisfy two components - rashness and negligence.
Rash driving implies driving at high speed and the negligence component involves not taking proper care and attention while driving.
The act will be punishable only if the driving was both rash and negligent.
"Act of the driving is punishable only when it is rash and negligence (sic). Rashness implies the speed which is unwarranted. Whereas act of the negligence involves not taking proper care and attention while driving,” the Court observed.
The Court, therefore, upheld the acquittal of a man who was booked for causing the death of a cyclist and a bullock after the car he was driving had hit them.
The man was charged for offences under Sections 279 (rash and negligent driving), 337 (hurt due to rash and negligent act), 338 (grievous hurt due to rash and negligent act) and 304A (causing death by negligence) of the Indian Penal Code and Section 134 of the Motor Vehicles Act.
During the trial, five witnesses were examined, documentary evidence was produced. The prosecution case was that the car of the accused was being driven at a high speed.
The trial court, however, acquitted the accused in 2009 which was challenged by the State of Maharashtra before the Bombay High Court.
The High Court opined that speed alone cannot be a determinative factor to conclude that the driver was driving the vehicle in a rash and negligent manner.
“No doubt he said that Tata sumo came speedily. It has to be appreciated on the basis of other available materials,” the Court observed.
From the evidence submitted, the High Court also could not decipher the direction in which the car and the bullock cart were moving to determine how they crashed into each other.
“It is really strange state of affairs, when such matters are conducted neither Investigating Officer has prepared a map/rough sketch, nor trial court has taken pains in recording directions correctly in the evidence. If there is some confusion, the trial Court could have clarified it from the witnesses by putting questions which is permissible by law,” the Court observed.
It also said that there was no evidence to corroborate the statements of the bullock cart driver.
“It is true that the consequence of the accident are the death of the one bullock and the bicycle driver. For want of evidence, the trial court could not come to the conclusion about rash and negligent driving by the respondent. Even this Court is unable to come to that conclusion for the above reasons”, the Court held.
It, therefore, upheld the order of acquittal.
Additional public prosecutor NB Patil appeared for State. Advocate Ashish Satpute was appointed as amicus curiae for the accused.
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tition No. 215 of 1989.
(Under Article 32 of the Constitution of India.) M.S. Gujral, Ms. Kirti Misra and B .B. Sawhney for the Petitioners.
G.B. Pari, O.C. Mathur, Ms. Meera and section Sukumaran for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This writ petition under article 32 filed on behalf of about 450 erstwhile employees of M/s. Burmah Shell retired between May 1, 1979 and December 1984, is for a mandamus or direction to the respondents to restore full pension (which had been commuted) to the petitioner Nos. 2 to 5 and others similarly situated upon the expiry of 12 1/2 years from date of retirement in case of those retired prior to April 1985 and after 11 1/3 years to those retired prior to April 1, 1985 from their respective dates of retirement.
They claim that though in their previous Writ Petition No. 590/87 disposed of by a Division Bench of this Court on May 11, 1988 of which one of us (Ranganath Misra, J.) was a member, a hike in the pension effective from May 1, 1988 was granted.
Consideration of the present relief had been left over for a later period.
Admittedly, the petitioners in Writ Petition No. 590/87 sought two reliefs, namely, (i) restora tion of the commuted portion of the pension, and (ii) en hancement of pension or par with the pensioners of the Hindustan Petroleum Corporation Limited, for short 'HPCL '.
During the course of hearing, claim for the 964 first relief was given up and submission was confined to the second relief.
This Court accepted the contentions of the petitioners and ordered a seizeable hike in the pension.
The relief in this writ petition squarely covers relief No. 1 of Writ Petition No. 590/87.
But the ground on which the peti tioners have again come before the Court within a short spell is that their hope of the respondent 's sister concern, namely, HPCL, restoring commuted portion of pension to its pensioners has been smashed as it has deferred its decision on the issue till 1992.
Their learned counsel contends that in Common Cause & Ors.
vs Union of India, ; this Court upheld the 15 years formula and directed that the commuted portion of the pension should be restored to all the civil servants as well as the armed forces personnel of the Central Government effective from April 1, 1985.
It is maintained that as principle the same would be applicable to the petitioners as well.
The respondents, it is claimed, have to bear an additional liability of only a sum of Rs.1,02,41,635 out of its huge profits without in any manner affecting its functioning.
When the employees of the Central Govt.
and other Public Sector Undertakings are receiving the same benefits, the denial thereof to the petitioners is arbitrary, unjust and unfair and offends article 14 of the Constitution.
There is no scheme in vouge in other Public Sector Undertakings like commuted pension scheme except in HPCI.
Though HPCL has postponed action in this regard till 1992, the petitioners are not precluded to approach this Court for redressal and the previous decision does not operate as res judicata.
This Court having accorded in equity benefits of pension, which is a legal right of the petitioner, the relief also may be granted to the petition ers.
Shri Pai, learned counsel for the respondents, has resisted all these contentions.
The short question is wheth er it is a fit case for interference and issue of a direc tion to the respondents to give the relief as prayed for.
Admittedly, the petitioners claimed this relief in Writ Petition No. 590/87.
This Court after appropriate considera tion held that a sizeable hike in pension would meet the ends of justice.
Admittedly, Burmah Shell has a unique scheme known as "Burmah Shell India Pension Fund" with its own rules.
This Court held that the retired personnel would be entitled to a hike in pension at par with pensioners of HPCL.
Admittedly, HPCL has not accorded to its pensioners the relief of restoration of the commuted portion of pension after the expiry of 15 years.
The order passed by this Court is as recent as May 11, 1988.
After such a short time lag and in the absence of any substantial change in the posi tion, in our considered view, it is not desirable to enter tain the claim for restoration of commuted pen 965 sion.
Admittedly, the petitioners are governed by a special scheme, which is not at par with Government employees or the other Public Sector Undertakings.
In all fairness Shri Pai also has stated that as and when HPCL revises its scheme the petitioners would be entitled to the same benefits.
Grant or ' the relief at this stage would create disparity between the personnel who receive pension from HPCL and the re spondents.
We find sufficient justification in the conten tion of Shri Pai.
So we do not feel justified that it would be appropriate to interfere and grant the relief as prayed for.
The writ petition is accordingly dismissed, but without costs.
G.N. Petition dismissed.
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Some of the erstwhile employees of Burmah Shell, in an earlier writ petition, claimed restoration of the commuted portion of pension and enhancement of pension on par with the pensioners of Hindustan Petroleum Corporation Limited, (HPCL).
At the time of hearing, the claim for restoration of the commuted portion of pension was given up.
This Court accepted the claim of the petitioners as regards enhancement of pension and ordered a sizeable hike in the pension.
The present writ petition claims the same relief which was given up at the time of hearing of the earlier writ petition, viz., restoration of commuted portion of pension.
Admitted ly, HPCL had deferred its decision till 1992 in this regard.
On behalf of the petitioners it was contended that though, HPCL has deferred its decision till 1992, the peti tioners were not precluded from approaching this Court and that the earlier decision did not operate as res judicata.
On behalf of the respondents it was contended that as soon as HPCL revises its scheme the petitioners would also be entitled to the benefit thereof and that grant of the relief earlier would create disparity between the persons who receive pension from HPCL and those from the Respondent.
Dismissing the writ petition, this Court, HELD: 1.1.
It would be inappropriate to interfere and grant the relief as prayed for at this stage since that would create disparity between the personnel who receive pension from Hindustan Petroleum Corporation Ltd. and the respondent Corporation.
[965B] 963 1.2.
This Court has already held that the retired per sonnel of Burmah Shell would be entitled to a hike in pen sion at par with pensioners of HPCL.
(W.P. No. 590/87 decid ed on 11.5.
1988).
HPCL has not accorded to its pensioners the relief of restoration of the commuted portion of pension after the expiry of 15 years.
The order passed by this Court is as recent as May 11, 1988.
After such a short time lag and in the absence of any substantial change in the posi tion, it is not desirable to entertain the claim for resto ration of commuted pension.
The petitioners are governed by a special scheme, which is not at par with Government em ployees or the other Public Sector Undertakings.
[964G H; 965A] Common Cause & Ors.
vs Union of India, ; , referred to.
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ition (Civil) Nos.
15466 67 of 1984 Etc.
(Under Article 32 of the Constitution of India.) M.K. Ramamurthi, P. Gaur and Jitendra Sharma for the Petitioners.
G.B. Pai, O.C. Mathur, Miss Deepa Sabra and Mrs. Meera Mathur for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
All these applications under Article 32 of the Constitution are by officers called the Management Staff employed under the Respondent No. 1 and challenge in all the Writ Petitions is to the age of superannuation at 58 years.
The principal ground of attack is discrimination between the clerical staff for whom the age of retirement is 60 years and the management staff in whose case such terminal point is 58 years.
It is also the claim of the petition 741 ers that in keeping with the current trend in the commercial field such age should be fixed at 60.
Each of the petitioners in Writ Petition Nos.
15466 and 15467 of 1984 and 2745 of 1985 is a recent recruit for the management staff while each of the petitioners in the remaining cases was an employee under the Burmah Shell oil Storage and Distributing Company of India Limited and after the take over of that Company under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, has become an officer of respondent No. 1.
In Som Prakash Rekhi vs Union of India & Anr., ; this Court has held Respondent No. 1 to be "State" within the meaning of Article 12 of the Constitution.
There has, therefore, been no dispute before us that the petitioners would be entitled to invoke the protection of Article 14 in case there indeed be any discrimination.
This Court in Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay vs Bharat Petroleum Corporation Ltd. and another; , directed the retirement age of the clerical staff of the Refinery Division of Respondent No. 1 to be fixed at 60 years.
Petitioners have contended that the disparity in the age of retirement between two groups of employees gives rise to discriminatory treatment.
This stand is not tenable for more than one reason.
Clerical staff and officers of the management staff belong to separate classifications and no argument is necessary in support of it.
Petitioners have not contended and perhaps could not legitimately contend, that the two classes of officers stand at par.
In the Workmen 's case itself, this Court did not extend the benefit of superannuation at the age of 60 to all clerical staff but limited the same to that category of employees working in the Refinery Division, Bombay.
Classification on the basis of reasonable differentia is a well known basis and we are of the view that the petitioners are not entitled in the facts of the case to seek support from Article 14 for their claim.
The claim of the clerical staff arose in an industrial dispute.
The scope of such an adjudication is wide and broad based.
The Tribunal has expansive jurisdiction to exercise when a reference is made to it.
This court in appeal against the Award was exercising the same jurisdiction in that case.
We do not think, it would be appropriate for this Court to exercise that jurisdiction in dealing with an application under Article 32 of the Constitution.
It must also be remembered that officers of the management staff are not workmen.
742 It is true that this Court in Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay; , quoted with approval its earlier observations in M/s. British Paints (India) Ltd. vs Its Workmen, ; where it was said: "But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement." Again in G.M. Talang and others vs Shaw Wallace and Co. & Anr., this Court referred to the Report of the Norms Committee where it was said: "After taking into consideration the views of the earlier Committees and Commissions including those of the Second Pay Commission the report of which has been released recently, we feel that the retirement age for workmen in all industries should be fixed at 60." A distinction in the treatment on the point in issue between workmen and officers is clearly discernible in judicial thinking as also expert opinion.
Besides, the petitioners have not brought before the Court all the material relevant to the making of a claim as made from which support could be had.
On the other hand, the Respondent No. 1 in its affidavit in opposition has placed various aspects to justify fixation and continuation of the present age of retirement.
It may be that some day, in keeping with the trend of the times, a claim of the type as laid in these applications may nave to be examined.
We, however, hope that adjudication will be required to be made on more cogent and appropriate material than now.
If this Court is moved, it has then to be considered whether an application under Article 32 is the proper remedy for it.
We are, however, of the view that the petitioners are not entitled to their claim in these applications.
The Writ Petitions are dismissed but without costs.
A.P.J. Petitions dismissed.
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The age of superannuation of the clerical staff employed under the Respondent No. 1 is 60 years while in the case of the management staff the terminal point is 58 years.
The officers of the management staff in their petitions under Article 32 alleged that the disparity in the age of retirement between two groups of employees gives rise to discriminatory treatment.
They also claim that in keeping with the current trend in the commercial field such age should be fixed at 60.
Dismissing the petitions, the Court, ^ HELD: 1.
Classification on the basis of reasonable differentia is a well known basis.
Clerical staff and officers of the management staff belong to separate classifications.
Therefore, the petitioners, in the fact of the case, are not entitled to seek support from Article 14 for their claim.
[741 F] 2.
The claim of the clerical staff arose in an industrial dispute.
The scope of such adjudication is wide and broad based.
The Tribunal has expansive jurisdiction to exercise when a reference is made to it.
This Court in appeal against the Award was exercising the same jurisdiction in that case.
It would not be appropriate for this Court to exercise that Jurisdiction in dealing with an application under Article 32 of the Constitution.
The officers of the management staff are not workmen.
[741 G H] 3.
The petitioners have not brought before the Court all the mate 740 rial relevant to the making of a claim as made from which support could be had.
On the other hand, the Respondent No. 1 in its affidavit in opposition has placed various aspects to justify fixation and continuation of the present age of retirement.
[742 E F] 4.
In keeping with the trend of the times, a claim of the type as laid in the instant applications may have to be examined.
However, that adjudication will be required to be made on more cogent and appropriate material than now.
If this Court is moved, it has then to be considered whether an application under Article 32 is the proper remedy for it.
However, the petitioners are not entitled to their claim in these applications.
[742 F G] Som Prakash Rekhi vs Union of India & Anr., ; , followed.
Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay vs Bharat Petroleum Corporation Ltd. and another; , , M/s. British Paints (India) Ltd. vs Its Workmen, ; and G.M. Talang and others vs Shaw Wallace and Co. & Anr., , referred to.
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Appeal No. 216 of 1954.
Appeal from the judgment and decree dated September 26,1946, of the former Chief Court of Avadh at Lucknow, in First Appeal No. 7 of 1940.
Naunit Lal, for the appellant.
section N. Andley, Rameshwar Nath, J. B. Dadachanji and P. L. Vohra, for respondent No. 1. 1960.
August 5.
The Judgment of the Court was delivered by DAS GUPTA J.
This appeal raises the question of interpretation of section 15 of the United Provinces Encumbered Estates Act, 1934.
On March 1, 1924, Sardar Nihal Singh, the predecessor of the appellant before us, borrowed a sum of rupees one lakh from Raja Durga Narain Singh, predecessor of the respondents, on mortgage of a house in Butlergunj, Lucknow and also the entire Zamindari interest in a village Parsera.
Interest was 8 per cent.
per annum compound with six monthly rests.
In 1932 Raja Durga Narain Singh brought a suit for recovery of Rs. 1,83,791 5 9 on account of principal and interest due on the mortgage, by sale of the mortgaged property.
In this suit the Subordinate Judge, Lucknow, made a preliminary decree declaring the amount due to the plaintiff on the mortgage calculated up to March 29, 1935, to be Rs. 1,83,791 5 9 up to the date of the suit, Rs. 49,280 2 6 as the amount due on account of interest thereupon from March 19, 1932, the date of the suit to March 29, 1935, the date fixed for payment.
A sum of Rs. 4,314 2 9 was awarded as the cost of the suit.
The defendant was ordered to pay this total sum of Rs. 2,37,385 11 0 before the 29th day of March, 1935, with future interest at 6 per cent.
per annum simple on the principal sum of rupees one lakh.
The amount not having been paid on that date, the Court on an application made by the mortgagee decree.
holder made a final decree on May 9, 1935, directing sale of the property for recovery of the sum of Rs. 2,37,503 5 6 with future interest as in the preliminary decree,(this sum being the total of Rs. 2,37,305 11 0 120 of the preliminary decree, Rs. 116 10 1 the interest from March 30, 1935, and rupee one the cost of the final decree).
An application for revision under section 115 of the Code of Civil Procedure in connection with this decree was rejected by the Chief Court of Oudh on April 20,1937.
Before this, on October 26, 1936, an application had been made by Sardar Nihal Singh under section 4 of the U. P. Encumbered Estates Act, requesting the provisions of the Act to be applied to him.
After this application came before the Special Judge in accordance with the provisions of section 6, the mortgagee decreeholder Raja Durga Narain Singh filed a written state ment of his claim on September 30,1937, and stated that the amount due to him on the basis of his decree was Rs. 2,51,904 8 6 including Rs. 14,300 as interest subsequent to the final decree till September 30, 1937, and a sum of Rs. 51 3 0 the decree for costs in his favour by the Oudh Chief Court when rejecting the mortgagor 's application for revision.
He prayed that a decree for Rs. 2,51,904 8 6 be passed in his favour against the applicant Sardar Nihal Singh and his property.
The applicant contested this claim pleading that the principal amount borrowed from the claimant being rupees one lakh the claimant was not entitled to recover any sum as interest thereupon in excess of the principal amount under section 14 of the Encumbered Estates Act.
This plea was rejected by the Special Judge who held that the claimant was entitled to Rs. 2,37,503 5 6 for which the final decree was passed, and also Rs. 51 3 0 as costs in the matter of revision application and further to 6 per cent.
per annum interest on rupees one lakh from May 29, 1935, the date of the final decree till the date of the application under the Encumbered Estates Act, i.e., October 26, 1936.
Accordingly he gave the claimant a simple money decree for Rs. 2,46,338 8 6 with proportionate costs and future interest at the rate of 4 per cent.
per annum simple from the date of application till realisation.
On appeal, the Cheief Court of Oudh rejected the appellant 's contention that the Special Judge was bound by section 14 of the Act to limit the decree to a sum 121 of rupees two lakhs only and held that in so far as the preliminary decree found Rs. 1,83,791 5 9 as the amount due on the mortgage on March 29, 1932, it was not inconsistent with section 14 of the Encumbered Estates Act, and so the Special Judge was bound to accept this finding under section 15.
It held however that in so far as this decree allowed interest pendente lite on the above amount from March 19, 1932, to March 29, 1935, at 8% per annum, it was inconsistent with sub section 7 of section 14.
The Chief Court accordingly held that this interest pendente lite must be reduced to 4 1/4% simple.
After saying that a sum of Rs. 4,314 2 9 would be added on account of costs, rupee one should be added on account of the costs of the final decree and Rs. 51 3 0 as costs of a revision application, the Court held that the principal amount of Rs. 1,00,000 shall carry interest from March 29, 1935, till the date of application under section 4 of the Encumbered Estates Act, viz., October 26, 1936, and that the aggregate of these figures shall carry interest from October 27, 1936, till realisation at 4 per cent.
per annum.
It directed a decree for the sum thus found to be substi tuted for that passed by the Subordinate Judge.
An application for leave to appeal to the Privy Council against this decree was made on January 13, 1947.
This application was disposed of on April 14, 1953.
Holding that the valuation of the suit was well over Rs. 20,000 and the value of the appeal to the Supreme Court was Rs. 41,971 2 9 the Chief Court gave, in view of the modification made by it in the lower court 's decree, a certificate that the case fulfils the requirements of section 110 of the Code of Civil Procedure and that the applicant had a right to appeal to the Supreme Court.
On the strength of that certificate the present appeal was filed When the appeal came up for hearing before a Bench of four judges of this Court Mr. Andley, on behalf of the respondents stated that in this case he was raising a constitutional point.
Thereupon the Court directed that the matter be posted before the Constitution Bench.
That is how the appeal has come up for hearing and final disposal before us.
16 122 Mr. Andley stated before us that the Constitutional point which he had wanted to raise was whether the judgment of the Chief Court was one of affirmance under article 133(1) of the Constitution but that be did not wish to pursue this point.
As Mr. Andley does not press his constitutional point, no further discussion of this is necessary.
The real controversy in the case between the parties is, as already indicated, as regards the interpretation of section 15 of the Encumbered Estates Act.
The relevant portion of section 15 is in these words: "In determining the amount due on the basis of a loan which has been the subject of a decree the Special Judge shall accept the findings of the Court which passed the decree except in so far as they are inconsistent with the provisions of section 14.
" A later amendment by which after the words and figures " section 14 ", the words " or section 4 of the U. P. Zamindars Debts Reduction Act, 1952 " were added is not relevant for our purpose.
Section 14 runs as follows: " 14.
(1) The Special Judge shall, by an order in writing, fix a date for enquiring into the claims made in pursuance of the notice published in accordance with section 9 and give notice of such date to all the claimants and the person who made the application under section 4.
(2) The Special Judge shall examine each claim and after hearing such parties as desired to be heard and considering the evidence, if any, produced by them shall determine the amount, if any, due from the landlord to the claimant on the date of the application under section 4.
(3) All evidence recorded in any suit or proceeding which is stayed under sub section (1) of section 7 may be taken by the Special Judge as evidence recorded before himself.
(4) In examining each claim the Special Judge shall have and exercise all the powers of the Court in which a suit for the recovery of the money due would lie and shall decide the questions in issue on the principles as those on which such court would decide them, subject to the following provisions, namely: 123 (a) the amount of interest held to be due on the date of the application shall not exceed that portion of the principal which may still be found to be due on the date of the application: (b) the provisions of the United Provinces Agriculturists Relief Act, 1934, shall not be applicable to proceedings tinder this Act.
(5) For the purpose of ascertaining the principal under clause (a) of subsection (4) the Special Judge shall treat as principal any accumulated interest which has been converted into principal at any statement or settlement of account or by any contract made in the course of the transaction on or before December 31, 1916.
Explanation: Interest which on or before December 31, 1916, became part of the principal under the express terms of original contract shall, for the purposes of this section, be deemed to be principal.
(6) For the purposes of ascertaining the principal under clause (a) of sub section (4) the Special Judge shall not treat as principal any accumulated interest which has been converted into principal at any statement or settlement of accounts or by any contract made in the course of the transactions after December 31, 1916.
(7) If the Special Judge finds that any amount is due to the claimant he shall pass a simple money decree for such amount, together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in section 27, and if he finds that no amount is due he may pass a decree for costs in favour of the landlord.
Such decree shall be deemed to be a decree of a civil court of competent jurisdiction but no decree against the landlord shall be executable within Uttar Pradesh except under the provisions of the Act: Provided that no pendente lite interest shall be allowed in the case of any debt where the creditor was in possession of any portion of the debtor 's property in lieu of interest payable on such debt.
" 124 Obviously there can be no question of any inconsistency in a finding of a court which has passed a decree on the basis of a loan, with the provisions mentioned in sub sections 1, 2 & 3 of section 14; nor is there any question of any inconsistency with the provisions of sub section 7 of section 14, as those provisions apply only after the Special Judge has found the amount due to the claimant and the question of inconsistency of any finding in the decree with the provisions of section 14 arise under section 15 at the stage when the amount due is being determined.
Sub sections 4, 5 and 6 of section 14 however require careful consideration of the Special Judge, when examining a decree of a Civil Court, to ' find whether any of the findings of the court is inconsistent with those provisions.
If they are inconsistent with any of those provisions he has to reject the findings to the extent of such inconsistency.
Thus, if for example, the provisions of the , would be beneficial to the applicant landlord and have not been taken into consideration by the court which passed the decree the Special Judge will have to give effect to section 14(4)(b) of the Act to modify the finding of the Court as regards the amount due, after applying the provisions of the Usurious Loans Act.
On the other hand, if the provisions of the U. P. Agriculturists Relief Act, 1934, have been applied by the Civil Court, the finding as regards the amount due in so far as the same was based on those provisions cannot, in view of its inconsistency with sub section 4(c) of section 14 be accepted by the Civil Court and he will have to modify the same, leaving out the provisions of the U. P. Agriculturists Relief Act.
Similarly if in arriving at the amount due, the Court which passed the decree has acted inconsistently with sub sections 5 and 6 of section 14, the finding will have to be modified by the Special Judge by applying the provisions of sub sections 5 and 6.
So, also if the finding of the Court which passed the decree is " inconsistent with " the provisions of sub section 4(a) of section 14 of the Encumbered Estates Act the finding will have to be rejected in so far as it is inconsistent.
The question that has arisen in this case and may as well arise in other cases, is whether when in ascertaining 125 the amount due on the basis of a loan, at the date of the suit, the Court which passed the decree did not allow interest exceeding the portion of the principal which was still due at the date of the suit, the finding as regards the amount due is inconsistent with section 14(4) (a) because the consequence of that finding as regards the amount due, together with interest allowed thereupon, is that on the date of the application the amount of interest due exceeds the portion of the principal remaining unpaid on the date of the application.
On behalf of the decree holder claimant it is contended that all that is necessary to save inconsistency with sub section 14(4)(a) is that the principle that the amount of interest shall not exceed the amount of the unpaid principal has been followed, in passing the decree and the fact that the result of the finding would be that on the date of the application section 4 of the Act the interest due would exceed the portion of the principal unpaid on such date is of no consequence.
This contention cannot in our opinion be accepted.
The requirement of sub section 4(a) of section 14 is that " the amount of interest held to be due on the date of the application shall not exceed that portion of the principal which may still be found to be due on the date of the application.
" The words " on the date of the application " cannot be ignored.
There can be no doubt that these words " on the date of the application " were deliberately used in the sub section for the purpose of benefiting the landlord applicant to this extent that whatever interest due on the contract may amount to, it will be limited to the amount of the principal found still remaining due, on the date of the application.
When the Legislature goes further and provides that if prior to the application a decree has been made on the basis of the loan the findings of the Court which passed the decree shall be accepted but forbids such acceptance if such finding is inconsistent with the provisions of section 14, the intention clearly is that the fact that there has been a decree will not make any difference as regards the duty of the Special Judge to give the applicant the benefit of the provisions of section 14.
When the Court passed the decree, there was 126 no application under the Encumbered Estates Act, and so, there could be no question of the Court then complying with the provisions of section 14(4)(a).
Even so, when the Special Judge has to reject such of the findings as are " inconsistent " with section 14, he must find out the effect of the several findings of the court to ascertain whether there is such inconsistency.
Where the consequence of the finding of the court which passed the decree is that the provisions of section 14(4)(a) about the amount of interest due on the date of the application not exceeding the unpaid principal on that date are contravened, the finding should be held to be inconsistent with these provisions.
In saying that if in the decree the court did not allow interest as on the date of the suit to exceed the principal then remaining due there is no inconsistency with section 14(4)(a), the respondent 's counsel is in effect asking us to read for the words " in so far as they are inconsistent with the provisions of section 14 " the words " in so far as they would have been inconsistent with the provisions of section 14, if the date of the institution of the suit be deemed to be the date of the application under section 4.
" For this we cannot find any justification.
Not only would this defeat the beneficial purpose of the legislation under section 14(4)(a); but this will also not be the natural meaning of the words " in so far as they are inconsistent with the provisions of section 14." The Chief Court 's view that the Special Judge has merely to see whether the Civil Court that passed the decree could have passed the decree which it did pass if that court had had to apply the provisions of section 14, treating the date of the institution of the suit as the date of the application cannot therefore be accepted as correct.
The same view had been taken by the Chief Court of Oudh in an earlier decision, of Pandit Ramsagar Prasad vs Mst.
Shayama (1).
A Full Bench of the Allahabad High Court had in Rukun uddin vs Lachhmi Narain (2) to consider the question whether a finding in a decree made by a civil court that the creditor is entitled to interest only at the rates specified in U. P. Agriculturists Relief Act was inconsistent with the (1) A.I.R. 1939 Oudh 75.
(2) I.L.R. [1945] All. 307.
127 provisions of section 14 of the U. P. Encumbered Estates Act and was therefore not binding on the Special Judge hearing an application under the U. P. Encumbered.
Estates Act.
They held that such a finding must be held to be inconsistent with the provisions of section 14 and could therefore not be binding on the Special Judge.
There can be no doubt about the correctness of this view, for, as has been pointed out above section 14(4)(c) provides that the provisions of the U. P. Agriculturists Relief Act shall not be applicable to proceedings under the Encumbered Estates Act.
One of the learned judges Mr. Justice Verma referred with approval in the course of his judgment to the view taken in Ramsagar Prasad 's Case (1).
For the reasons mentioned earlier how ever we are of opinion that the view in Ramsagar Prasad 's Case (1) which has been followed by the Chief Court in the present case is wrong.
Our conclusion therefore is that the Special Judge is even where there has been a decree by a civil court in respect of a loan bound to follow the provisions of section 14(4)(a) of the Act so that the amount of interest which he can hold to be due on the date of the application must not exceed the portion of the principal found to be due on the date of the application.
Accordingly in the present case the Special Judge should have held the amount of interest due oil the date of the application, i.e., October 26, 1936, to amount to rupees one lakh only, that being the principal which was still due on that date.
Under the provisions of sub section 7 of section 14 the Special Judge has to "pass a simple money decree for such amount, together with any costs which he may allow in respect of proceedings in his court and of proceedings in any civil court stayed under the provisions of this Act, together with pendente lite and future interest at a rate not greater than the rate specified in section 27.
" It was in view of this provision that the special Judge and the High Court allowed interest at the rate of 4% per annum.
The proper decree the Special Judge should have passed therefore was one for rupees two lakhs for the loan with permissible interest, plus Rs. 4,314 2 9, Rs. 51 3 0 and rupee (1) A.I.R. 1939 Oudh 75.
128 one on account of costs, that is, for a total sum of Rs. 2,04,366 5 9 with proportionate costs with interest pendente lite and future interest at the rate of 4 per cent per annum simple from the date of the application, i.e., October 26, 1936, till realisation.
Accordingly, we allow the appeal, set aside the decree passed by the courts below and order that in place of the decree made by the Trial Court be substituted a money decree in the terms as mentioned above.
The appellant will get his costs in the appeal.
Appeal allowed.
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N borrowed rupees one lakh from D on mortgage of a house and Zamindari interest on March 1, 1924.
Interest was 8% per annum compoundable with six monthly rests.
In 1932 the mortgagee filed a suit on the mortgage and a decree was passed for the recovery of Rs. 1,83,781/5/9 principal and interest upto the date of the suit and Rs. 49,280/ 2/6 interest from date of the suit upto the date fixed for payment, with future interest at 6% per annum simple on the principal sum.
On the failure of the mortgagor to pay by the date fixed a final decree was passed on May 9, 1935 for sale of the property for recovery of a sum of Rs. 2,37,503/5/6 which had become due.
On October 26, 1936, N made an application under section 4 of the U. P. Encumbered Estates Act, 1934, requesting that the provisions of the Act be applied to him.
Section 14(4)(a) of the Act provided that " the amount of interest held to be due on the date of application shall not exceed that portion of the principal which may still be found to be due on the date of the application ".
N contended that in view of section 14(4)(a), D was not entitled to recover any sum as interest in excess of the principal sum of rupees one lakh.
D contended that it was not necessary to reopen the decree as the principle of section 14(4)(a) had not been violated in passing the decree.
Held, that the proper decree that should have been passed on the application was for rupees two lakhs for the principal and interest plus costs and interest pendente lite and future interest at 4% per annum.
The words " on the date of the application " in section 14(4)(a) of the Act had been deliberately used to benefit the applicant by reducing the interest to the amount of the principal found still due on the date of the application, whatever amount of interest may be due under the contract.
The fact that there had been a decree did not make any difference in giving the benefit of the section to the applicant.
Pandit Ramsagar Prasad vs Mst.
Shayama, A.I.R. 1939 Oudh 75, disapproved.
Rukun uddin vs Lachhmi Narain, I.L.R. 1945 All.
307, referred to. 119
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The appellant was convicted by the Trial Court for
offences punishable under Sections 121,122, 124-A of IPC
and sentenced to undergo life imprisonment with fine of
Rs. 25,000/-. Further, the appellant was convicted under
Section 25 of the Arms Act, 1959 and sentenced to five
years with fine of Rs.25,000/- He was also convicted
under Section 4 of the Explosives Act and sentenced to
life imprisonment with fine of Rs.25,000/- and under
Section 5 of the Explosive Substances Act and sentenced
to life imprisonment with fine of Rs.25,000/-.
The High Court partly allowed the appeal filed by
the appellant and acquitted him under Sections 121, 122
and 124-A IPC. However, the High Court upheld the
conviction and sentence under Section 25 of the Arms Act
and Section 4 of the Explosives Act and Section 5 of the
Notice was issued by this Court confined to
We are informed that the appellant has undergone
sentence of more than 15 years. Having considered the
material on record and after hearing Mr. Sidharth Dave,
learned senior counsel appearing for the appellant and
Mr. Shubhranshu Padhi, learned counsel appearing for the
State of Karnataka, we are of the considered view that
the sentence should be converted to the period already
undergone. Ordered accordingly.
The conviction of the appellant under Section 25 of
the Arms Act, Section 4 of the Explosives Act and
Section 5 of the Explosives Substances Act is upheld.
The appellant is, accordingly, directed to be
released forthwith.
The Criminal Appeal is disposed of accordingly.
Pending application(s), if any, shall also stand disposed
Petition(s) for Special Leave to Appeal (Crl.) No(s). 800/2017
(Arising out of impugned final judgment and order dated 20-07-2016
in CRLA No. 3645/2010 passed by the High Court Of Karnataka At
Date : 07-09-2021 This petition was called on for hearing today.
UPON hearing the counsel the Court made the following
Leave granted.
The Criminal Appeal is disposed of in terms of
the Signed Order. Pending application(s), if any,
shall also stand disposed of.
(Signed order is placed on the file)
|
Supreme Court today has ordered the release of an alleged Lashkar-e-Taiba Member incarcerated since 2006 in Kalaburgi jail in a case related to recovery of a pistol and two hand grenades.The order was passed in an appeal filed by one Abdul Raheman who is said to have undergone a sentence of more than 15 years. Allegedly a member of banned terrorist organisation Lashkar-e-Taiba,...
Supreme Court today has ordered the release of an alleged Lashkar-e-Taiba Member incarcerated since 2006 in Kalaburgi jail in a case related to recovery of a pistol and two hand grenades.
The order was passed in an appeal filed by one Abdul Raheman who is said to have undergone a sentence of more than 15 years.
Allegedly a member of banned terrorist organisation Lashkar-e-Taiba, the appellant was convicted by the Trial Court for offences punishable under Sections 121,122, 124-A of IPC and sentenced to undergo life imprisonment with fine of Rs. 25,000/-.
He was further convicted under Section 25 of the Arms Act, 1959 and sentenced to five years with fine of Rs.25,000/-, under Section 4 of the Explosives Act and sentenced to life imprisonment with fine of Rs.25,000/- and under Section 5 of the Explosive Substances Act and sentenced to life imprisonment with fine of Rs.25,000/-.
A Bench of Justices L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna noted that while the High Court had partly allowed the appeal filed by the instant appellant and acquitted him under Sections 121, 122 and 124-A IPC, it had upheld the conviction and sentence under the other provisions.
Noting that the appellant had already been imprisoned for a considerable amount of time, the Bench was of the considered view that the sentence should be converted to the period already undergone.
"The appellant is, accordingly, directed to be released forthwith", it said.
Senior Advocate Sidharth Dave appeared for the appellant and Counsel Shubhranshu Padhi, appeared for the State of Karnataka.
Cause Title: Abdul Raheman v State of Karnataka
|
Civil Appeal No. 14 of 1968.
Appeal from the judgment and decree, dated December 12, 1964 of the Allahabad High Court in F.A.F.O. No. 401 of 1963.
R.M. Hazarnavis, K.L. Hathi and Atiqur Rehman, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
By a contract, dated March 8, 1945, the appellant agreed to supply meat to the Government of India.
The contract contained an arbitration clause for reference of disputes arising out of the contract to the officer named in the contract.
The appellant claims that a sum of Rs. 8,38,994/10/6/ is due to him in respect of the supplies of meat made by him during the period between April 1, 1945 and March 31, 1946.
He made representations to.
the Government for payment and for arbitration of the disputes.
On or about July 10, 1958 the Government refused to.
refer the matter to.
arbitration.
On July 11, 1961 the appellant filed an application in the Court of the District Judge, Jhansi, under sections 8 and 20 of the for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the Court.
The respondent contended that the application was barred by limitation.
The District Judge allowed the application.
He held that there was no period of limitation for making an application under sections 8 and 20.
The defendant filed an appeal against the order.
The High Court dismissed the appeal as incompetent in so far as it challenged the order under section 8, and allowed it in so far as it challenged the order under section 20.
The High Court held that the application was governed by article 181 of the Indian Limitation Act, 1908 and was barred by limitation as it was made more than three years after the disputes had arisen.
The appellant has filed this appeal after obtaining a certificate from the High Court.
The point in issue is whether an application under section 20 of the is governed by article 181 of the Indian L2Sup.
CI 69 16 234 Limitation Act.
Since the decision in Bai Manekbai vs Manekli Kavasji(1) it is well settled that the operation of article 181 is limited to applications under the Code of Civil Procedure.
In that case Westropp, C.J. after referring to the corresponding article 178 in the second schedule to the Limitation Act of 1877 observed: "An examination of all the other articles in the second schedule relating to "applications", that is to say of the Third division of that schedule, shows that the applications therein contemplated are such as are made under the Code of Civil Procedure.
Hence it is natural to conclude that the applications referred to in Article 178 are applications ejusdem generis, i.e., applications under the Code of Civil Procedure.
The preamble of the Act, moreover, purports to deal with 'certain applications ' only, and not with all applications.
" This decision was followed in numerous cases and was approved in Hansraj Gupta vs Official Liquidator Dehra Dun, Mussourie Electric Tramway Company(2).
Having regard to these decisions, Das, J. said in Shah Mulchand & Co., vs Jawahar Mills Ltd. (3): "This long catena of decisions may well be said to have as it were, added the word 'under the Code ' in the first column of that Article=." The Court held that the amendment of articles 15 8 and 178 and the insertion of the words "under the " in place of the words "under the Code of Civil Procedure, 1908" did not alter the settled meaning of article 181.
To the same effect is the decision in Bombay Gas Ca.: vs Gopal Bhiva.(4) Following these decisions the Court held in Wazirchand Mahajan & Anr.
vs Union of India(5) that an application under section 20 of the not being an application under the Code of Civil Procedure was not governed by article 181.
The High Court has come to the conclusion that an application under section 20 of the is governed by article 181 for the following reasons: Article 181 should be construed as if the words "under the Code" were added in it.
The repealed paragraph 17 of the second schedule to the Code and re enacted it in section 20 with minor modifications.
That being so, section 8(1) of the applied and the implied reference in article 181 to paragraph 17 of the second schedule to the Code should be construed as a reference to section 20 of the .
No different intention is to be found in the and there is nothing to indi (1) Bom.
213, 214.
(2) [1933] L.R. 60 I.A.13, 20.
(3) ; ,371.
(4) ; (5) ; 235 cate that an application under section 20 can be made at any time without any limitation.
The argument that the implied reference in article 181 to paragraph 17 of the second schedule to the Code should be construed as a reference to section 20 of the and not raised and considered in Wazirchand Mahalan 's case(1).
It is, therefore, our duty to examine this contention.
Section 8 (1) of the corresponds to the Interpretation Act, 1889 (52 & 53 vict.
c. 63) and runs as follows: "Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed, shall, unless a different intention appears, be construed as references to the provision so reenacted.
" The section embodies the rule of construction that where the provision of an Act is repealed and re enacted with or without modification, a reference to the repealed provision in any other enactment should be regarded as a reference to the provision re enacted in the new form unless it appears that the legislature had a different intention.
The was passed with a view to consolidate and amend the law relating to arbitration.
Formerly the general law relating to arbitration was to be found in the Indian Arbitration Act, 1899 and the Code of Civil Procedure, 1908.
Paragraphs 1 to 16 of the second schedule to the Code applied to all arbitrations in suits.
As to arbitrations otherwise than in suits, the Indian Arbitration Act, 1899 applied to cases where, if the subject matter submitted to arbitration were the subject of a suit, the suit could be instituted in a Presidency town; in other cases, the Code of Civil Procedure, 1908 applied The repealed both the enactments.
It extends to the whole of India except the State of Jammu and Kashmir, and save as provided in section 47 applies to all arbitrations.
As to the provisions of the new Act under which applications can be made to Court, sections 8, 14, 16, 28 and 30, correspond to provisions which are found in both the repealed enactments, sections 5 and 9 correspond to similar provisions in the Indian Arbitration Act, 1899, and sections 15 and 20 correspond to similar provisions in the second schedule to the Code and some sections such as sec.
11, are entirely new.
In the circumstances, a question may arise whether the provisions of the new Act can be regarded as reenactments of the repeated provisions of the Indian Arbitration Act, 1899 or of the Code.
But for the purpose of this case we shall ,assume that section 20 of the new Act is a re enactment with (1) ; 236 modification of paragraph 17 of the second schedule to the Code.
We shall also assume that article 181 of the Limitation Act as construed by the Courts should be regarded as containing a reference to the Code of Civil procedure including paragraph 17 of the second schedule thereof.
Even after making those two assumptions it appears to us that the implied reference in article 181 to the Code of Civil Procedure cannot be construed as a reference to the .
Before their amendment by the Indian , article 158 of the Limitation Act applied to applications "under the Code of Civil Procedure, 1908 to set aside an award" and article 178 applied to applications.
"under the same Code for the filing in Court of an award".
The amended articles 158 and 178.
The amended article 158 applies to applications "under the to set aside an award or to get an award remitted for consideration", that is to say, to application under sections 16 and 30 of the Act.
The amended article 178 applies to applications "under the for the filing in Court of an award", that is to say to applications under section 14 of the Act.
In amending articles 158 and 178 the legislature acted upon the view that the references to the Code of Civil Procedure, 1908 in the second schedule t9 the Limitation Act could not in the absence of the amendment be construed as references to.
At the same time the legislature refrained from amending article 181 and providing that the article will apply to other applications under the .
It is manifest that the legislature intended that save as provided in articles 158 and 178 there would not be any limitation for other applications under the Act, Take the case of an application under section 28 of the Act for enlargement of the time for making the award.
A similar application under paragraph 8 of the second schedule to the Code was governed by article 181,but a like application under section 12 of the Indian Arbitration Act,1899 was not subject to any period of limitation.
There is nothing to indicate that for the purpose of limitation section 20 of the new Act should be regarded as a re enactment of the corresponding provision of the.
Code and not of the Indian Arbitration Act, 1899.
An application under section 8 of the new Act corresponding to paragraph 5 of the second schedule to the Code and section 8 of the Indian Arbitration Act, 1899 stand on the same footing.
In the circumstances, it is not possible to construe the implied reference in article 181 to the Code of Civil Procedure as a reference to the , or to hold that article 181 applies to applications under that Act.
The rule of construction given in section 8 (1) of the cannot be applied, as it appears that the legislature had a different intention.
It follows that an application under sections 8 and 20 of the is not 237 governed by article 181.
The Limitation Act does not prescribe any period of limitation for such an application.
It follows that the present application under sections 8 and 20 is not barred by limitation.
In conclusion we must observe that the appellant 's claim relates to supplies during the period between April 1, 1945 and March 31, 1946.
There is a serious contention whether the claim is barred by limitation.
It will be the duty of the arbitrator to consider this matter carefully and to decide whether or not the claim is so barred.
In the result, the appeal is allowed, the order of the High Court is set aside and the order of the District.
Judge, Jhansi, is restored.
In the circumstances of the case, there will be no order as to costs in this Court.
G.C. Appeal allowed.
|
The appellant entered into a contract with the Government of India.
The contract contained an arbitration clause.
For certain supplies made under the contract the appellant made representations to the Government or payment and for arbitration of disputes.
On or about July 10, 1958 Government refused to refer the matter for arbitration.
On July 11, 1961 the appellant flied an application in the Court of the District Judge under sections 8 and 20 of the , for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the court.
The respondent contended that the application was barred by Limitation.
The District Judge allowed the application, holding that there was no limitation for making an application under sections 8 and 20.
The defendant 's appeal was dismissed by the High Court as incompetent in so far as it challenged the order under section 8 but was allowed in so far as it challenged the order under section 20.
The High Court held that an application under section 20 is governed 'by article 181 of the Indian Limitation Act, 1908.
In coming to this conclusion the High Court took into account the settled judicial view that the.
operation of article 181 is limited to applications under the Code of Civil Procedure.
and reasoned as follows: Article 181 should be construed as if the words 'under the Code ' were added in it.
The repealed paragraph 17 of the second schedule to the Code and re enacted it in section 70 with minor modifications.
That being so section 8(1) of the applied and the implied reference in article 181 to paragraph 17 of the second schedule to the Code should be construed as a reference to section 20 of the .
Appeal against the High Court 's judgment was filed with certificate.
HELD: The 'appeal must be allowed.
By the the Legislature amended articles 158 and 178 of the Limitation Act and made them applicable to the relevant proceedings under the but no similar change was made in article 181.
It is manifest that save as provided in articles 158 and 178 there would not be any limitation for other applications under the Act.
Further there is nothing to indicate that for the purpose of limitation section 20 of the 1940 Act should be regarded as a re enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899.
[236 D G] In the circumstances it is not possible to construe the implied reference in article 181 to the Code of Civil Procedure as a reference to the or to hold that article 181 applies to applications under that Act.
The rule of construction given in section 8(1)of the cannot be applied, as it appears that the legislature had a 233 different intention.
It follows that an application under sections 8 and 20 of the is not governed by article 181.
The Limitation Act does not prescribe any period of limitation for such an application.
[236 G H] The present application under sections 8 and 20 was therefore not barred by limitation.
[237 A] Bai Manekbai vs Manekji Kavasji, Born.
213, 214 Hansraj Gupta vs Official Liquidator Dehra Dun Mussourie Electric Tramway Company, (1933) L.R. 60 I.A. 13, 20, Shah Mulchand & Co. vs Jawahar Mills Ltd. ; , 371, Bombay Gas Co. vs Gopal Bhiva, ; and Wazirchand Mahajan & Anr.
vs Union of India, ; , referred
|
No. XIII of 1950.
Application under article 32 (1) of the Constitution of India for a writ of habeas corpus against the detention of the appellant in the Madras jail in pursuance of an order of detention made under the .
The material facts of the case and arguments of counsel are set out in detail in the judgments.
The relevant provisions of the , are printed below.
Short title, extent and duration.
This Act may be called the .
(2) It extends to the whole of India . . (3) It shall cease to have effect on the 1st day of April, 1951, as respects things done or omitted to be done before that date.
2. Definitions.
In this Act, unless the context other wise requires, (a) "State Government" means, in relation to a Part C State, the Chief Commissioner of the State; and (b) "detention order" means an order made under Section 3. 3.
Power to make orders detaining certain persons. (1) The Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India foreign power, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it is necessary so to do, make an order directing that such person be detained.
(2) Any District Magistrate or Sub Divisional Magistrate, or Presidency town, the Commissioner of Police, may, if satisfied provided in sub clauses (ii) and (iii) of clause (a) of sub section (1), exercise the power conferred by the said sub section.
(3) When any order is made under this section by a Dis trict Magistrate, Sub Divisional Magistrate or Commissioner of Police, he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessi ty for the order.
Grounds of order of detention to be disclosed to persons affected by the order. (1) When a person is de tained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order his been made, and shall afford him the earliest opportunity of making a representa tion against the order, in a case where such order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subordinate thereto, to the State Government.
94 11.
Confirmation of detention order.
In any case where the Advisory Board has reported that* there is in Rs opinion suffcient cause for the detention of the person concerned, the Central Government or the State Government.
as the case may be, may confirm the detention order and continue the detention of the person concerned for ' such period as it thinks fit.
Duration of detention in certain cases. (1) Any person detained in any of the following classes of cases or under 'my of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained wish a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order.
* * * 14.
Disclosure of grounds of detention, etc. (1) No court shall, except for the purpose of a prosecution for an offence punishable under sub section (9,), allow any state ment to be made, or any evidence to be given.
before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by 'him against such order; and notwithstanding anything contained in any other law, no court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that par of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made ' to his legal adviser by a person who is the subject of a detention order.
M. K. Nambiar (section K. Aiyar and V.G. Rao, with him) for the petitioner.
K. Rajah Aiyar, Advocate General of Madras (C. R. Pattabi Raman and R. Ganapathi, with him) lot the State of Madras.
M.C. Setalvad, Attorney General for India (Jindralal, with him) for the Union of India.
95 1950.
May 19.
The following Judgments were delivered.
KANIA C. J This is a petition by the applicant under article 32 (1) of the Constitution of India for a writ of habeas corpus against his detention in the Madras Jail.
In the petition he has given various dates showing how he has been under detention since December, 1947.
Under the ordi nary Criminal Law he was sentenced to terms of imprisonment but those convictions were set aside.
While he was tires under detention under one of the orders of the Madras State Government, on the 1st of March, 1950, he was served with an order made under section 3 (1) of the , IV of 1950.
He challenges the legality of the order as it is contended that Act IV of 1950 contravenes the provisions of articles 13, 19 and 21 and the provisions of that Act are not in accordance with article 22 of the Con stitution.
He has also challenged the validity of the order on the ground that it is issued mala fide.
The burden of proving that allegation is on the applicant.
Because of the penal provisions of section 14 of the impugned Act the applicant has not disclosed the grounds, supplied to him, for his detention and the question of mala fides of the order therefore cannot be gone into under this petition.
The question of the validity of Act IV of 1950 was argued before us at great length.
This is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us.
The Court is indebted to the learned counsel for the applicant and the Attorney General for their assistance in interpreting the true meaning of the relevant clauses of the Constitution.
In order to appreciate the rival contentions it is useful first to bear in mind the general scheme of the Constitution.
Under article 53 of the Constitution the executive power of the Union is vested in the President and is to be exercised by him in accordance with the 96 Constitution either directly or through officers subordinate to him.
The legislative powers of the Union are divided between the Parliament and Legislatures of the States.
The ambit and limitations on their respective powers are found in article 246 read with article 245, Schedule VII, Lists 1,2 and 3 of the Constitution.
For the Union of India the Supreme Court is established and its powers and jurisdiction are set out in articles 124 to 147.
This follows the pat tern of the Government of India Act, 1935, which was the previous Constitution of the Government of India.
Unlike the American Constitution, there is no article vesting the judicial power of the Union of India in the Supreme Court.
The material points substantially altering the edifice are first in the Preamble which declares india a Sovereign Democratic Republic to secure to all its citizens justice, liberty and equality and to promote among them all, frater nity.
Part III of the Constitution is an important innova tion.
It is headed "Fundamental Rights.
" In that Part the word "State" includes both the Government of the Union and the Government of the States.
By article 13 it is expressly provided that all laws in force in the territory of India, immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of this Part, to the extent of such inconsistency, are void.
There fore, all laws in operation in India on the day the Consti tution came into force, unless otherwise saved, to the extent they are inconsistent with this Chapter on Fundamen tal Rights, become automatically void.
Under article 13 (2) provision is made for legislation after the Constitution comes into operation.
It is there provided that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contraven tion of this clause shall to the extent of the contraven tion, be void.
Therefore, as regards future legislation also the Fundamental Rights in Part III have to be respected and, unless otherwise saved by the provisions of the Consti tution, they will be void to the extent they contravene the provisions of Part III.
Under article 245 (1) the legisla tive powers conferred under 97 article 246 are also made "subject to the provisions of this Constitution," which of course includes Part III dealing with the Fundamental Rights.
The term law in article 13, is expressed to be wide enough to include Acts, Ordinances, Orders, Bye laws, Rules, Regulations and even custom or usage having, in the territory of India, the force of law.
The rest of this Part is divided in seven divisions.
"Right to Equality" is found in articles 14 18, "Eight to Freedom" in articles 19 22, "Right against Exploitation" in articles 23 and 24, "Right to Freedom of Religion" in articles 25 28, "Cultural and Educational Rights" in articles 29 and 30, "Right to Property" in article 31 and "Right to Constitu tional Remedies" in articles 32 35.
In this case we are directly concerned only with the articles under the caption "Right to Freedom" (19 22) and article 32 which gives a remedy to enforce, the rights conferred by this Part.
The rest of the articles may have to be referred to only to assist in the interpretation of the above mentioned arti cles.
It is obvious that by the insertion of this Part the powers of the Legislature and the Executive, both of the Union and the States, are further curtailed and the right to enforce the Fundamental Rights found in Part III by a direct application to the Supreme Court is removed from the legislative control.
The wording of article 32 shows that the Supreme Court can be moved to grant a suitable relief, mentioned in article 32 (2), only in respect of the Funda mental Rights mentioned in Part III of the Constitution.
The petitioner is detained under a preventive detention order, made under Act IV of 1950, which has been passed by the Parliament of India.
In the Seventh Schedule of the Constitution, List I contains entries specifying items in respect of which the Parliament has exclusive legislative powers.
Entry 9 is in these terms: "preventive detention for reasons connected with Defence, Foreign Affairs or the Security of India; persons subjected to such detention." List III of that Schedule enumerates topics on which both the Union and the States have concurrent legislative 98 powers.
Entry 3 of that List is in these terms: "Preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community; persons subjected to such detention.
" It is not disputed that Act IV of 1950 is covered by these two Entries in List I and List III of the Seventh Schedule.
The contention of the peti tioner is that the impugned legislation abridges or in fringes the rights given by articles 19 21 and is also not in accordance with the permissive legislation on preventive detention allowed under articles 22 (4) and (7) and in particular is an infringement of the provisions of article 22 (5).
It is therefore necessary to consider in detail each of these articles and the arguments advanced in respect thereof.
Article 19 is for the protection of certain rights of freedom to citizens.
It runs as follows : "19.
(1) All citizens shall have the right (a) to free dom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business. "(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relat ing to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposts, or prevent the State from making any law imposing, in the interests of public order 99 reasonable restrictions on the exercise of the right con ferred by the said sub clause.
(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.
(5) Nothing in sub clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restric tions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any pro fession or carrying on any occupation, trade or business.
" Clause (2) specifies the limits up to which the abridge ment of the right contained in 19 (1) (a) may be permitted.
it is an exception.
Similarly clause (3) sets out the limit of abridgement of the right in 19 (1) (b) and clause (4) specifies such limits in respect of the right in 19 (1) (c).
Clause (5) is in respect of the rights mentioned in 19 (1) (d), (e) and (f) and clause (6) is in respect of the rights contained in 19 (1) (g).
It cannot be disputed that the articles collected under the caption "Right to Freedom" have to be considered together to appreciate the extent of the Fundamental Rights.
In the first place it is necessary to notice that 100 there is a distinction between rights given to citizens and persons.
This is clear on a perusal of the provisions of article 19 on the one hand and articles 20, 21 and 22 on the other.
In order to determine whether a right is abridged or infringed it is first necessary to determine the extent of the right given by the articles and the limitations pre scribed in the articles themselves permitting its curtail ment.
The inclusion of article 13 (1) and (2) in the Con stitution appears to be a matter of abundant caution.
Even in their absence, if any of the fundamental rights was infiringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits, invalid.
The existence of article 13 (1) and (2) in the Constitution therefore is not material for the decision of the question what fundamental right is given and to what extent it is permitted to be abridged by the Constitution itself.
As the preventive detention order results in the deten tion of the applicant in a cell it was contended on his behalf that the rights specified in article 19 (1) (a), (b), (c), (d), (e) and (g) have been infringed.
It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub clauses (b), (c), (d), (e) and (g).
Although this argu ment is advanced in a case which deals with preventive detention, if correct, it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code.
So considered, the argument must clearly be rejected.
In spite of the saving clauses (2)to(6) permitting abridge ment of the rights connected with each of them, punitive detention under several sections of the Penal Code, e.g., for theft, cheating, forgery and even ordinary assault, will be illegal. 'Unless such conclusion necessarily follows from the article, it is obvious that such construction should be avoided.
In my opinion, such result is clearly not the outcome of the Constitution.
The article has to be read without any pre conceived notions.
So read, it clearly means 101 that the legislation to be examined must be directly in respect of one of the rights mentioned in the subclauses.
If there is a legislation directly attempting to control a citizen 's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise.
If, however, the legisla tion is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these subclauses is abridged, the question of the application of article 19 does not arise.
The true approach is only to consider the directness of the legisla tion and not what will be the result of the detention other wise valid, on the mode of the detenue 's life.
On that short ground, in my opinion, this argument about the in fringement of the rights mentioned in article 19 (1) gener ally must fail.
Any other construction put on the article, it seems to me.
will be unreasonable.
It was next urged that while this interpretation may meet the contention in respect of rights under article 19 (1) (a), (b), (c), (e) and (g), the right given by article 19 (1) (d) is left untouched.
That sub clause expressly gives the right "to move freely throughout the territory of India.
" It was argued that by the confinement of the peti tioner under the preventive detention order his right to move freely throughout the territory of India is directly abridged and therefore the State must show that the im pugned legislation imposes only reasonable restrictions on the exercise of that right in the interests of the general public or for the protection of the interests of any Sched uled Tribe, under article 19 (5).
The Court is thus en joined to inquire whether the restrictions imposed on the detained person are reasonable in the interests of the general public.
Article 14 of the Constitution gives the right to equality in these terms: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
" 102 It was argued that the words "within the territory of India" are unnecessary in that article because the Parlia ment is supreme to make laws operative only within the territory of India.
Without those words also the article will bear the same meaning.
Similarly, it was urged that the words "territory of India" in article 19 (1) (d) may be treated as superfluous, and preventive detention would thus be an abridgement of the right to move freely.
In my opin ion, this rule of construction itself is faulty.
Because certain words may be considered superfluous (assuming them to be.
so in article 14 for the present discussion) it is quite improper to assume that they are superfluous wherever found in the rest of the Constitution.
On the contrary, in my opinion, reading sub clause (d) as a whole the words "territory of India" are very important.
What is sought to be protected by that sub clause is the right to freedom of movement, i.e., without restriction, throughout the terri tory of India.
Read with their natural grammatical. mean ing the sub clause only means that if restrictions are sought to be put upon movement of a citizen from State to State or even within a State such restrictions will have to be tested by the permissive limits prescribed in clause (5) of that Article.
Sub clause (d) has nothing to do with detention, preventive or punitive.
The Constitution men tions a right to freedom of movement throughout the territo ry of India, Every word of that clause must be given its true and legitimate meaning and in the construction of a Statute, particularly a Constitution, it is improper.
to omit any word which has a reasonable and proper place in it or to refrain from giving effect to its meaning.
This position is made quite clear when clause (5) is read along with this sub clause.
It permits the imposition of reasona ble.
restrictions on the exercise of such right either in the interest of general public or the protection of the interest of any Scheduled Tribe.
It is difficult to conceive of a reasonable restriction necessary in the interests of the general public for confining a person in a cell.
Such restriction may be appropriate to prevent a person from going from one Province to another or 103 one area to another, having regard to local conditions prevailing in particular areas.
The point however is made abundantly clear by the alternative, viz., for the protec tion of the interests of any Scheduled Tribe.
What protec tion of the interests of a Scheduled Tribe requires the confinement of a man in a cell ? On the other hand, pre venting the movement of a person from one part of the terri tory of India to another and the question of reasonable restriction imposed to protect the interests of a Scheduled Tribe is clearly intelligible and often noticed in the course of the administration of the country.
Scheduled Tribes have certain rights, privileges and also disabili ties.
They have their own civilization, customs and mode of life and prevention of contact with persons or groups with a particular Scheduled Tribe may be considered undesirable during a certain time or in certain conditions.
The legis lative history of India shows that Scheduled Tribes have been given a separate place on these grounds.
Reading article 19 as a whole, therefore, it seems to me that it has no application to a legislation dealing with preventive or punitive detention as its direct object.
I may point out that the acceptance of the petitioner 's argument on the interpretation of this clause will result in the Court being called upon to decide upon the reasonableness of several provisions of the Indian Penal Code and several other penal legislations as abridging this right.
Even under clause (5), the Court is permitted to apply the test of reasonable ness of the restrictions or limits not generally, but only to the extent they are either in the interests of the gener al public, e.g., in case of an epidemic, riot, etc., or for the protection of the interests of any Scheduled Tribe.
In my opinion, this is not the intention of the Constitution.
Therefore the contention urged in respect of article 19 fails.
It was argued that article 19 and article 21 should be read together as implementing each other.
Article 19 gave substantive rights to citizens while article 21 prescribed that no person can be deprived of his life and personal liberty except by procedure 104 established by law.
Even so, on a true construction of article 19, it seems to me that both preventive and punitive detention are outside the scope of article 19.
In order to appreciate the true scope of article 19 it is useful to read it by itself and then to consider how far the other articles in Part HI affect or control its meaning.
It is the first article under the caption "Right to Freedom .
" It gives the rights mentioned in 19 (1) (a) to (g) to all citizens of India.
These rights read by them selves and apart from the controls found in clauses (2) to (6) of the same article, specify the different general rights which a free citizen in a democratic country ordi narily has.
Having specified those rights, each of them is considered separately from the point of view of a similar right in the other citizens, and also after taking into consideration the principle that individual liberty must give way, to the extent it is necessary, when the good or safety of the people generally is concerned.
Thus the right to freedom of speech and expression is given by 19 (1) (a).
But clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Clause (2) thus only emphasizes that while the individual citizen has a free right of speech or expression, he cannot be permit ted to use the same to the detriment of a similar right in another citizen or to the detriment of the State.
Thus, all laws of libel, slander, contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression.
Simi larly; that right is also subject to laws which prevent undermining the security of the State or against activities which tend to overthrow the State.
A similar analysis of clauses f3) and (4) shows similar restrictions imposed on similar grounds.
In the same way clause (5) also permits reasonable restrictions in the exercise of the right to freedom of movement throughout the territory of India, the right to reside and settle in any part of the 105 territory of India or the right to acquire, hold and dispose of property, being imposed by law provided such reasonable restrictions on the exercise of such right are in the inter est of the general ' public.
The Constitution further pro vides by the same clause that similar reasonable restric tions could be put on the exercise of those rights for the protection of the interest of a Scheduled Tribe.
This is obviously to prevent an argument being advanced that while such restriction could be put in the interest of general public, the Constitution did not provide for the imposi tion of such restriction to protect the interests of a smaller group of people only.
Reading article 19 in that way as a whole the only concept appears to be that the specified rights of a free citizen arc thus controlled by what the framers of the Constitution thought were necessary restric tions in the interest of the rest of the citizens.
Reading article 19 in that way it appears to me that the concept of the right to move freely throughout the territo ry of India is an entirely different concept from the right to "personal liberty" contemplated by article 21.
"Person al liberty" covers many more rights in one sense and has a restricted meaning in another sense.
For instance, while the right to move or reside may be covered by the expression , 'personal liberty" the right to freedom of speech (men tioned in article 19 (1) (a)) or the right to acquire, hold or dispose of property (mentioned in 19 (1) (f)) cannot be considered a part of the personal liberty of a citizen.
They form part of the liberty of a citizen but the limita tion imposed by the word "personal"leads me to believe that those rights are not covered by the expression personal liberty.
So read there is no conflict between articles 19 and 21.
The contents and subject matters of articles 19 and 21 are thus not the same and they proceed to deal with the rights covered by their respective words from totally different angles.
As already mentioned in respect of each of the rights specified in sub clauses of article 19 (1) specific limitations in respect of each is provided, while the expression "personal 106 liberty" in article 21 is generally controlled by the gener al expression "procedure established by law.
" The Constitu tion, in article 19, and also in other articles in Part III, thus attempts to strike a balance between individ ual liberty and the general interest of the society.
The restraints provided by the Constitution on the legislative powers or the executive authority of the State thus operate as guarantees of life and personal liberty of the individu als.
Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when one likes or to work or not to work as and when one pleases and sever al such rights sought to be protected by the expression "personal liberty" in article 21, is quite different from restriction (which is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as safeguarded by article 19 (1) (d).
Deprivation of personal liberty has not the same meaning as restriction of free movement in the territory of India.
This is made clear when the provisions of the Criminal Procedure Code in Chapter VIII relating to security of peace or maintenance of public order are read.
Therefore article 19 (5) cannot apply to a substantive law depriving a citizen of personal liberty.
I am unable to accept the contention that the word "deprivation" includes within its scope "restriction" when interpreting article 21.
Article 22 envisages the law of preventive detention.
So does article 9.46 read with Schedule Seven, List I, Entry 9, and List III, Entry 3.
Therefore, when the subject of preventive detention is specifically dealt with in the Chapter on Fundamental Rights I do not think it is proper to consider a legisla tion ' permitting preventive detention as in conflict with the rights mentioned in article 19 (1).
Article 19 (1) does not purport to cover all aspects of liberty or of personal liberty.
In that article only certain phases of liberty are dealt with. "Personal liberty" would primarily mean liberty of the physical body.
The rights given under article 19 (1) do not directly come under that description.
They are rights which accompany the freedom or liberty of the person.
By their very 107 nature they are freedoms of a person assumed to be in full possession of his personal liberty.
If article 19 is considered to be the only article safeguarding personal liberty several well recognised rights, as for instance, the right to eat or drink, the right to work, play, swim and numerous other rights and activities and even the right to life will not be deemed protected under the Constitution.
I do not think that is the intention.
It seems to me improper to read article 19 as dealing with the same subject as article 21.
Article 19 gives the rights specified therein only to the citizens of India while arti cle 21 is applicable to all persons.
The word citizen is expressly defined in the Constitution to indicate only a certain section of the inhabitants of India.
Moreover, the protection given by article 21 is very general.
It is of "law" whatever that expression is interpreted to mean.
The legislative restrictions on the law making powers of the legislature are not here prescribed in detail as in the case of the rights specified in article 19.
In my opinion there fore article should be read as a separate complete article.
Article 21 which is also in Part III under the caption "Right to Freedom" runs as follows : "No person shall be deprived of his life or personal liberty except according to procedure established by law.
" This article has been strongly relied upon by the peti tioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person.
It was argued that under the Constitution of the United States of America the corre sponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is "that no person shall be deprived of his life or liberty or property except by due process of law.
" It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the 'United States "due process of law" has been .construed by its Supreme Court to cover both 108 substantive and procedural law, while in India only the protection of procedural law is guaranteed.
It was contend ed that the omission of the word "due" made no difference to the interpretation of the words in article 21.
The word "established" ' was not equivalent to "prescribed".
It had a wider meaning.
The word "law" did not mean enacted law because that will be no 'legislative protection at all.
If so construed, any Act passed by the Parliament or the State Legislature, which was otherwise within its legislative power, can destroy or abridge this right.
On the same line of reasoning, it was argued that if that was the inten tion there was no necessity to put this as a fundamental right in Part III at all.
As to the meaning of the word "law" it was argued that it meant principles of natural justice.
It meant "jus", i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not "lex", i.e., enact ed law.
Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word "law".
They are: (1) An objective test, i.e., a certain, definite and ascer tainable rule of human conduct for the violation of which one can be detained; (2) Notice of the grounds of such detention; (3) An impartial tribunal, administrative, judi cial or advisory, to decide whether the detention is justi fied; and (4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.
In my opinion, this line of approach is not proper and indeed is misleading.
As regards the American Constitution its general structure is noticed in these words in "The Government of the United States" by Munro (5th Edition) at page 53: "The architects of 1787 built only the basement.
Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished.
Or, to change the metaphor, it has a fabric which, to use the words of 109 James Russell Lowell, is still being 'woven on the roaring loom of time '.
That is what the framers of the original Constitution intended it to be.
Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time.
They sought merely to pro vide a starting point.
" The same aspect is emphasized in Professor Willis 's book on Constitutional Law and Cooley 's Constitutional Limitations.
In contrast to the American Constitution, the Indian Constitution is a very detailed one.
The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legisla tures.
The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services.
It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage.
The first is that in U.S A. Constitution the word "liberty" is used simpliciter while in India it is restricted to personal liberty.
(2) In U.S.A. Constitution the same protection is given to proper ty, while in India the fundamental right in respect of property is contained in article 31.
(3) The word "due" is omitted altogether and the expression "due process of law" is not used deliberately.
(4) The word "established" is used and is limited to "Procedure" in Our article 21.
The whole argument of the petitioner is rounded on the meaning of the word "law" given to it by the Supreme Court of America.
It seems unnecessary to embark on a discussion of the powers and jurisdiction of the Supreme Court of the 'U.S.A. and how they came to enlarge or abridge the meaning of law in the expression "due process of law".
Without going into details, I think there is no justification to adopt the meaning of the word "law" as interpreted by the Supreme Court of U.S.A. in the expression "due 110 process of law" merely because the word "law" is used in article 21.
The discussion of the meaning of "due process of law" found in Willis on Constitutional Law and in Coo ley 's Constitutional Limitations shows the diverse meanings given to that expression at different times and under dif ferent circumstances by the Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression.
means reasonable law according to the view of the majority of the judges of the Supreme Court at a particular time holding office.
It also shows how the meaning of the expression was widened or abridged in certain decades.
Moreover, to control the meaning so given to that expression from time to time the doctrine of police powers was brought into play.
That doctrine, shortly put, is that legislation meant for the good of the people generally, and in which the individual has to surrender his freedom to a certain extent because it is for the benefit of the people at large, has not to be tested by the touchstone of the "due process of law" formula.
Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause.
The report may be read not to control the meaning of the article, but may be seen in case of ambiguity.
In The Municipal Council of Sydney vs The Commonwealth(1), it was thought that individu al opinion of members of the Convention expressed in the debate cannot be referred to for the purpose of construing the Constitution.
The same opinion was expressed in United States vs Wong Kim Ark(2).
The result appears to be that while it is not proper to take into consideration the indi vidual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a ques tion is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be ' permitted.
In the present case the debates were referred to to show that the expression "due process of law" was known to exist in the American Constitution (1) (2) (169) U.S 649 at 699.
111 and after a discussion was not adopted by the Constituent Assembly in our Constitution.
In Administrator General of Bengal vs Premlal Mullick(1), a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section.
The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute.
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved.
See Craies ' Statute Law (4th Edition) page 122, Maxwell on Interpretation of Statutes (9th Edition)pp.
28 29 and Crawford on Statutory Construction (1940 Edition) p. 379, article 214.
A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression "due process of law" but they deliberately dropped the use of that expression from our Constitution.
No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous.
Normally read, and without thinking of other Constitutions, the expression "procedure established by law" must mean procedure prescribed by the law of the State.
If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the Ameri can Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word "procedural" prefixed to "law.
" However, the correct question is what is the right given by article 21 ? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law.
One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the Constitution.
To read the word "law" as meaning rules of natural justice will land one in (1) (1895)L.R. 221.
A. 107.
15 15 112 difficulties because the rules of natural justice, as re gards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard.
This is particularly so when in omitting to adopt "due process of law" it was considered that the expression "procedure established by law" made the standard specific.
It can not be specific except by reading the expression as meaning procedure prescribed by the legislature.
The word "law" as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice.
If so, there appears no reason why in this article it should receive this peculiar meaning.
Article 31 which is also in Part III and relates to the fundamental rights in respect of property runs as follows : "No person shall be deprived of his property save by authority of law.
" It is obvious that in that clause "law" must mean enact ed law.
The object of dealing with property under a differ ent article appears more to provide the exceptions found in article 31 (2) to (6), rather than to give the word "law" a different meaning than the one given in article 21.
The world "established" according to the Oxford Dictionary means "to fix, settle, institute or ordain by enactment or agree ment.
" The word "established" itself suggests an agency which fixes the limits.
According to the dictionary this agency can be either the legislature or an agreement between the parties.
There is therefore no justification to give the meaning of "jus" to "law" in article 21.
The phrase "procedure established by law" seems to be borrowed from article 31 of the Japanese Constitution.
But other articles of that Constitution which expressly pre serve other personal liberties in different clauses have to be read together to determine the meaning of "law" in the expression "procedure established by law.
" These articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language.
It is not shown that the word "law" means "jus" in the Japanese Constitution.
In the Japanese Constitution these 113 rights claimed under the rules of natural justice are not given by the interpretation of the words "procedure established by law" in their article 31.
The word "due" in the expression "due process of law" in the American Consti tution is interpreted to mean "just," according to the opinion of the Supreme Court of U.S.A.
That word imparts jurisdiction to the Courts to pronounce what is "due" from otherwise, according to law.
The deliberate omission of the word "due" from article 21 lends strength to the conten tion that the justiciable aspect of "law", i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution.
The omission of the word "due", the limitation imposed by the word "procedure" and the insertion of the word "established" thus brings out more clearly the idea of legislative prescription in the expres sion used in article 21.
By adopting the phrase "procedure established by law" the Constitution gave the legislature the final word to determine the law.
Our attention was drawn to The King vs The Military Governor of the Hair Park Camp ( '), where articles 6 and 70 of the Irish Constitution are discussed.
Under article 6 it is provided that the liberty of the person is inviolable and no person shall be deprived of such except "in accord ance with law" .
In article 70 it is provided that no one shall be tried "save in due course of law" and extraor dinary Courts were not permitted to be established except the Military Courts to try military offences.
The expres sion "in accordance with law" was interpreted to mean not rules of natural justice but as the law in force at the time.
The Irish Court gave the expression "due course of law" the meaning given to it according to the English law and not the American law.
It was observed by Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria C), that in accordance with British Jurispru dence no member of the executive can interfere with the liberty or property of a British subject except when he can support the legality of his act before a Court of justice.
(1) [1924] 2 Irish Reports K.B. 104.
(2) [1931] A.C. (62 at 670.
114 In The King vs The Secretary of State for Home Affairs(1), Scrutton LJ.
observed: "A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction.
" It seems very arguable that in the whole set up of Part III of our Constitution these principles only remain guaranteed by article 21.
A detailed discussion of the true limits of article 21 will not be necessary if article 22 is considered a code to the extent there are provisions therein for preventive detention.
In this.
connection it may be noticed that the articles in Part III deal with different and separate rights.
Under the caption "Right to Freedom" articles 19 22 are grouped but each with a separate marginal note.
It is obvious that article 22 (1) and (2) prescribe limita tions on the right given by article 21.
If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22 (1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal proce dure in respect of arrest and detention.
Article 22 is for protection against arrest and detention in certain cases, and runs as follows : "22.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2.) Every person who is arrested and detained in custo dy shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply(a) to any person who for the time being is an enemy alien; or (1) at 382.
115 (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause 17); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance .of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may ,in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4).
" The learned Attorney General contended that the subject of preventive detention does not fall under 116 article 21 at all and is covered wholly by article 22.
According to him, article 22 is a complete code.
I am unable to accept that contention.
It is obvious that in respect of arrest and detention article 22 (1) and (2) provide safeguards.
These safeguards are excluded in the case of preventive detention by article 22 (3), but safe guards in connection with such detention are provided by clauses (4) to (7) of the same article.
It is therefore clear that article 21 has to be read as supplemented by article 22.
Reading in that way the proper mode of construc tion will be that to the extent the procedure is prescribed by article 22 the same is to be observed; otherwise article 21 will apply.
But if certain procedural safeguards are expressly stated as not required, or specific rules on certain points of procedure are prescribed, it seems im proper to interpret these points as not covered by article 22 and left open for consideration under article 21.
To the extent the points are dealt with, and included or excluded,, article 22 is a complete code.
On the points of procedure which expressly or by necessary implication are not dealt with by article 22, the operation of article 21 will remain unaffected.
It is thus necessary first to look at article 22 (4) to (7) and next at the provisions 0 the impugned Act to determine if the Act or any of its provi sions are ultra vires.
It may be noticed that neither the American nor the Japanese Constitution contain provisions permitting preventive detention,.
much less laying down limitations on such right of detention, in normal timeS, i.e., without a declaration of emergency.
Preventive deten tion in normal times,.
i.e., without the existence of an emergency like war,. is recognised as a normal topic of legislation in List I. Entry 9, and List III, Entry 3, of the Seventh Schedule.
Even in the Chapter on Fundamental Rights article 22 envisages legislation in respect of pre ventive detention in normal times.
The provisions of article 22 (4) to (7) by their very wording leave unaffected the large powers of legislation on this point and emphasize particularly by article 22 (7) the power of the Parliament to deprive a person of a right to have his case considered by an advisory board.
Part III and.
117 article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on this subject would have been quite unrestricted.
Parliament could have made a law without any safeguard or any procedure for preventive detention.
Such an autocratic supremacy of the legislature is certainly cut down by article 21.
There fore, if the legislature prescribes a procedure by a validly enacted law and such procedure in the case of preventive detention does not come in conflict with the express provi sions of Part III or article 22 (4) to (7), the must be held valid notwithstanding that the Court may not fully approve of the procedure prescribed under such Act.
Article 22 (4) opens with a double negative.
Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain .a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub clause (a)), and which has to report before the expira tion of three months if in its opinion there was sufficient cause for such detention.
This clause, if it stood by itself and without the remaining provisions of article 22, will apply both to the Parliament and the State Legislatures.
The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22 (7) (b).
Again the whole of this sub clause is made inoperative by article 22 (4) (b) in respect of an Act of preventive detention passed by Parlia ment under clauses (7) (a) .and (b).
Inasmuch as the im pugned Act is an Act of the Parliament purported to be so made, clause 22 (4) has no operation and may for the present discussion be kept aside.
Article 22 prescribes that when any person under a preventive detention law is detained, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which .
the order has been made and shall afford him the 118 earliest opportunity of making a representation against the order.
This clause is of general operation in respect of every detention order made under any law permitting deten tion.
Article 22 (6) permits the authority making the order to withhold disclosure of facts which such authority consid ers against the public interest to disclose.
It may be noticed that this clause only permits the non disclosure of facts, and reading clauses (5) and (6) together a distinc tion is drawn between facts and grounds of detention.
Article 22 (4) and (7) deal not with the period of detention only but with other requirements in the case of preventive detention also.
They provide for the establishment of an advisory board, and the necessity of furnishing grounds to the detenue and also to give him a right to make a represen tation.
Reading article 22 clauses (4) and (7) together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on Fundamental Rights, provided such legislation is within the legislative competence of the Parliament or the State Legislature, as the case may be.
Article 22 (5) permits the detained person to make a representation.
The Constitution is silent as to the person to whom it has to be made, or how it has to be dealt with.
But that is the procedure laid down by the Constitution.
It does not therefore mean that if a law made by the Parliament in respect of preventive detention does not make provision on those two points it is invalid.
Silence on these points does not make the impugned Act in contravention of the Constitution because the first question is what are the rights given by the Constitution in the case of preventive detention.
The contention that the representation should be to an outside body has no support in law.
Even in the Liversidge case the representation had to be made to the Secretary of State and not to another body.
After such representation was made, another advisory board had to consider it, but it was not necessary to make the represen tation itself to a third party.
Article 22 (4) and (7) permit the non establishment of an advisory board expressly in a parliamentary legislation 119 providing for preventive detention beyond three months.
If so, how can it be urged that the nonestablishment of an advisory.
board is a fundamental right violated by the procedure prescribed in the Act passed by the Parliament? The important clause to be considered is article 22 (7).
Sub clause (a) is important for this case.
In the case of an Act of preventive detention passed by the Parliament this clause contained in the Chapter on Fundamental Rights, thus permits detention beyond a period of three months and ex cludes the necessity of consulting an advisory board, if the opening words of the sub clause are complied with.
Sub clause (b) is permissive.
It is not obligatory on the Parliament to prescribe any maximum period.
It was argued that this gives the Parliament a right to allow a person to be detained indefinitely.
If that construction is correct, it springs out of the words of sub clause (7) itself and the Court cannot help in the matter.
Subclause (c) permits the Parliament to lay down the procedure to be followed by the advisory board in an inquiry under sub clause (a) of clause (4).
I am unable to accept the contention that article 22 (4) (a) is the rule and article 22 (7) the exception.
I read them as two alternatives provided by the Constitution for making laws on preventive detention.
Bearing in mind the provisions of article 22 read with article 246 and Schedule VII, List I, Entry 9, and List III, Entry 3, it is thus clear that the Parliament is empowered to enact a law of preventive detention (a) for reasons connected with defence, (b) for reasons connected with foreign affairs, (c) for reasons connected with the security of India; and (under List III), (d) for reasons connected with the security of a State, (e) for reasons connected with the maintenance of public order, or (f) for reasons connect ed with the maintenance of supplies and services essential to the community.
Counsel for the petitioner has challenged the validity of several provisions of the Act.
In respect of the construction of a Constitution Lord Wright in James vs The Commonwealth of Australia(1), (1) (1936) A. 0. 578 at 614.
16 120 observed that "a Constitution must not be construed in any narrow and pedantic sense." Mr. Justice Higgins in Attorney General of New South Wales vs Brewery Employees ' Union (1), observed: "Although we are to interpret words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of 1938 (" '), Sir Maurice Gwyer C.J. after adopting these observations said: "especially is this true of a Federal Constitution with its nice balance of jurisdictions.
I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the lan guage of the enactment in the interest of any legal or con stitutional theory or even for the purpose of supplying omissions or of correcting supposed errors.
" There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words.
Where the funda mental law has not limited, either in terms or by necessary implication, the general powers conferred upon the Legisla ture we cannot declare a limitation under the notion of hav ing discovered something in the spirit of the Constitution which is not even mentioned in the instrument.
It is diffi cult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority.
It is also stated, if the words be positive and without ambiguity, there is no authority for a Court to vacate or repeal a Statute on that ground alone.
But it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and (1) at 611 12.
(2) at 37.
121 paramount law settled by the deliberate wisdom of the nation that one can find a safe and.
solid ground for the authority of Courts of justice to declare void ,any legislative enact ment.
Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too 'indefinite either for its own security.
or the protection of private rights.
It was first argued that by section 3 the Parliament had delegated its legislative power to the executive officer in detaining a person on his being satisfied of its necessi ty.
It was urged that the satisfaction must be of the legislative body.
This contention of delegation of the legislative power in such cases has been considered and rejected in numerous cases by our Federal Court and by the English Courts.
It is unnecessary to refer to all those cases.
A reading of the various speeches in Liversidge vs Anderson clearly negatives this contention.
Section 3 of the impugned Act is no delegation of legislative power to make laws.
It only confers discretion on the officer to enforce the law made by the legislature.
Section 3 is also impugned on the ground that it does not provide an objective standard which the Court can utilize for determining whether the requirements of law have been complied with.
It is clear that no such objective standard of conduct can be pre scribed, except as laying down conduct tending to achieve or to avoid a particular object.
For preventive detention action must be taken on good suspicion.
It is a subjective test based on the cumulative effect of different actions, perhaps spread over a considerable period.
As observed by Lord Finlay in The King vs Halliday (2), a Court is the least appropriate tribunal to investigate the question whether circumstances of suspicion exist warranting the restraint on a person.
The contention is urged in respect of preventive detention and not punitive detention.
Before a person can be held liable for an offence it is obvious that he should be in a position to know what he may do or not do, and an omission to do or not to do will result in the State (1) (2) ; at 269.
122 considering him guilty according to the penal enactment.
When it comes however to preventive detention, the very purpose is to prevent the individual not merely from acting in a particular way but, as the sub heads summarized above show, from achieving a particular object.
It will not be humanly possible to tabulate exhaustively all actions which may lead to a particular object.
It has therefore been considered that a punitive detention Act which sufficiently prescribes the objects which the legislature considers have not to be worked up to is.
a sufficient standard to prevent the legislation being vague.
In my opinion, therefore, the argument of the petitioner against section 3 of the impugned Act fails.
It was also contended that section 3 prescribes no limit of time for detention and therefore the legislation is ultra vires.
The answer is found in article 22 (7) (b).
A perusal of the provisions of the impugned Act moreover shows that in section 12 provision is made for detention for a period longer than three months but not exceeding one year in respect of clauses (a) and (b) of that section.
It appears therefore that in respect of the rest of the clauses mentioned in section 3 (1)(a)the detention is not contem plated to be for a period longer than three months, and in such cases a reference to the advisory board under section 9 is contemplated.
Section 7 of the Act which is next challenged, runs on the same lines as article 22 (5) and.
(6) and in my opinion infringes no provision of the Constitution.
It was argued that this gave only the right of making a representation without being heard 'orally or without affording an opportu nity to lead evidence and therefore was not an orderly course of procedure, as required by the rules of natural justice.
The Parliament by the Act has expressly given a right to the person detained under a preventive detention order to receive the grounds for detention and also has given him a right to make a representation.
The Act has thus complied with the requirements of article 22 (s).
That clause, which prescribes what procedure has to be followed as a matter of fundamental right, is silent about the person detained having a right to be heard 123 orally or by a lawyer.
The Constituent Assembly had before them the provisions of clause (1) of the same article.
The Assembly having dealt with the requirements of receiving grounds and giving an opportunity to make a representation has deliberately refrained from providing a right to be heard orally.
If so, I do not read the clause as guarantee ing such right under article 22 (5).
An "orderly course of procedure" is not limited to procedure which has been sanc tioned by settled usage.
New forms of procedure are as much, held even by the Supreme Court of America, due process of law as old forms, provided they give a person a fair opportunity to present his case.
It was contended that the right to make a representation in article 22 (5) must carry with it a right to be heard by an independent tribunal; otherwise the making of a representation has no substance because it is not an effective remedy.
I am unable to read clause (5) of .article 22 as giving a fundamental right to be heard by an independent tribunal.
The Constitution deliberately stops at giving the right of representation.
This is natural because under article 22 (7), in terms, the Constitution permits the making of a law by Parliament in which a reference to an advisory board may be omitted.
To consider the right to make a representation as necessarily including a right to be heard by an independent judicial, administrative or advisory tribunal will thus be directly in conflict with the express words of article 22 (7).
Even according to the Supreme Court of U.S.A. a right to a judicial trial is not absolute.
In the United States vs Ju Toy (1), a question arose about the exclusion from entry into the States, of a Chinese who claimed to be a citizen of the United States.
At page 263 the majority judgment con tains the following passage : " If for the purpose of argument, we assume that the Fifth Amendment applies to him, and that to deny entrance to a citizen is to deprive him ,of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial: That is the result of the cases which we have cited, and the almost necessary result of the (1) (198) U.S. 253 at 263.
124 power of the Congress to pass exclusion laws.
That the decision may be entrusted to an executive officer, and that his decision is due process of law, was affirmed and ex plained in several cases.
It is unnecessary to repeat the often quoted remarks of Mr. Justice Curtis, speaking for the whole Court, in Den Exden Murray vs Hoboken Land and Im provement Company (1), to.
show that the requirement of a judicial trial does not prevail in every case.
" Again, I am not prepared to accept the ' contention that a right to be heard orally is an essential right of proce dure even according to the rules of natural justice.
The right to make a defence may be admitted, but there is nothing to support the contention that an oral interview is compulsory.
In the Local Government Board vs Arlidge (2), the respondent applied to the Board constituted under the Housing Act to state a special case for the opinion of the High Court, contending that the order was invalid because (1) the report of the Inspector had been treated as a confi dential document and had not been disclosed to the respond ent, and (2) because the Board had declined to give the respondent an opportunity of being heard orally by the person or persons by whom the appeal was finally decided.
The Board rejected the application.
Both the points were urged before the House of Lords on appeal.
Viscount Haldane L.C. in his speech rejected the contention about the necessity of an oral hearing by observing "But it does not follow that the procedure of every tribunal must be.the same.
In the case of a Court of law tradition in this country has prescribed certain principles to which, in the main, the procedure must conform.
But what that procedure is to be in detail must depend on the nature of a tribunal.
" In rejecting the contention about the disclosure of the report of the Inspector, the Lord Chancellor stated: "It might or might not have been useful to disclose this report, but I do not think that the Board was bound to do so.
any more than it would have been bound to disclose all the minutes made on the papers in the office before (1) 18 HO.W. 272 at 280.
(2) 125 a decision was come to .
What appears to me to have been the fallacy of the judgment of the majority in the Court of appeal is that it begs the question at the begin ning by setting up the test of the procedure of a Court of justice instead of the other standard which was laid down for such cases in Board of Education vs Rice (1).
I do not think the Board was bound to hear the respondent orally provided it gave him the opportunities he actually had.
" In spite of the fact that in England the Parliament is supreme I am unable to accept the view that the Parliament in making laws, legislates against the well recognised principles of natural justice accepted as such in all civilized countries.
The same view is accepted in the United States in Federal Communications Commission vs WJR The Goodwill Station (2).
A right to lead evidence against facts suspected to exist is also not essential in the case of preventive deten tion.
Article 22 (6) permits the non disclosure of facts.
That is one of the clauses of the Constitution dealing with fundamental rights.
If even the non disclosure of facts is permitted, I fail to see how there can exist a right to contest facts by evidence and the noninclusion of such procedural right could make this Act invalid.
Section 10 (3) was challenged on the ground that it excludes the right to appear in person or by any lawyer before the advisory board and it was argued that this was an infringement of a fundamental right.
It must be noticed that article 22 (1) which gives a detained person a right to consult or be defended by his own legal practitioner is specifically excluded by article 22 (3) in the case of legislation dealing with preventive detention.
Moreover,.
the Parliament is expressly given power under article 22 (7) (c) to lay down the procedure in an inquiry by an advisory board.
This is also a part of article 22 itself.
If so, how can the omission to give a right to audience be considered against the constitutional rights ? It was pointed out that section 10 (3) prevents even the disclosure of a (1) (2) ; at 276.
126 portion of the report and opinion of the advisory board.
It was argued that if so how can the detained person put forth his case before a Court and challenge the conclusions ? This argument was similarly advanced in Local Government Board vs Arlidge (1) and rejected, as mentioned above.
In my opinion, the answer is in the provision found in article 22 (7) (c) of the Constitution of India.
It was argued that section 11 of the impugned Act was invalid as it permitted the continuance of the detention for such period as the Central Government or the State Govern ment thought fit.
This may mean an indefinite period.
In my opinion this argument has nos substance because the Act has to be read as a whole.
, The whole life of the Act is for a year and therefore the argument that the detention may be for an indefinite period is unsound.
Again, by virtue of article 22 (7)(b), the Parliament is not obliged to fix the maximum term of such detention.
It has not so fixed it, except under section 12, and therefore it cannot be stated that section 11 is in contravention of article 22 (7).
Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of article 22 (7).
It is argued that article 22 (7) permits preventive detention beyond three months, when the Parliament pre scribes "the circumstances in which, and the class or class es of cases in which," a person may be detained.
It was argued that both these conditions must be fulfilled.
In my opinion, this argument is unsound, because the words used in article 22 (7) themselves are against such interpretation.
The use of the word "which" twice in the first part of the sub clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive.
Such argument might have been possible (though not necessarily accepted) if ' the article in the Constitution was "the circumstances.
and the class or class es of cases in which . "I have.
no doubt that by the clause, as worded, the legislature (1) 127 intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section.
This contention therefore fails.
It was next contended that by section 12 the Parliament had provided that a person might be detained for a period longer than three months but not exceeding one year from the date of his detention, without obtaining the opinion of an advisory board, with a view to prevent him from acting in any manner prejudicial to (a) the defence of India, rela tions of India with foreign powers or the security of India; or (b)the security of a State or the maintenance of public order.
It must be noticed that the contingency provided in section 3 (1) (a) (iii), viz., the maintenance of supplies and services essential to the community is omitted in sec tion 12.
Relying on the wording of these two sub sections in section 12, it was argued that in the impugned Act the wording of Schedule VII List I, Entry 9, and List III, Entry 3, except the last part, are only copied.
This did not comply with the requirement to specify either the circum stances or the class or classes of cases as is necessary to be done under article 22 (7) of the Constitution.
Circum stances ordinarily mean events or situation extraneous to the actions of the individual concerned, while a class of cases mean determinable groups based on the actions of the individuals with a common aim or idea.
Determinable may be according to the nature of the object also.
It is obvious that the classification can be by grouping the activities of people or by specifying the objectives to be attained or avoided.
The argument advanced on behalf of the petitioner on this point does not ' appeal to me because it assumes that the words of Schedule VII List I, Entry 9, and List III, Entry 3 are never capable of being considered as circum stances or classes of cases.
In my opinion, that assumption is not justified, particularly when we have to take into consideration cases of preventive 17 128 detention and not of conviction and punitive detention.
Each of the expressions used in those entries is capable of complying with the requirement of mentioning circumstances or classes of cases.
The classification of cases, having regard to an object, may itself amount to a description of the circumstances.
It is not disputed that each of the entries in the Legislative Lists in the Seventh Schedule has a specific connotation well understood and ascertainable in law.
If so, there appears no reason why the same expression when used in section 12 (1) (a) and (b) of the impugned Act should not be held to have such specific meaning and thus comply with the requirement of prescribing circumstances or classes of cases.
This argument therefore must be rejected.
Section 13(2) was attacked on the ground that even if a detention order was revoked, another detention order under section 3 might be made against the same person on the same grounds.
This clause appears to be inserted to prevent a man being released if a detention order was held invalid on some technical ground.
There is nothing in the Chapter on Fundamental Rights and in article 21 or 22 to prevent the inclusion of such a clause in a parliamentary legislation, permitting preventive detention.
Article 20 (2) may be read as a contrast on this point.
Dealing with the four fundamental principles of natural justice in procedure claimed by the petitioner, it is thus clear that in respect of preventive detention no question of an objective standard of human conduct can be laid down.
It is conceded that no notice before detention can be claimed by the very nature of such detention.
The argument that after detention intimation of the grounds should be given has been recognised in article 22 (5) and incorporated in the impugned Act.
As regards an impartial tribunal, article 22 and (7) read together give the Parliament ample discretion.
When in specified circumstances and classes of cases the preventive detention exceeds three months, the absence of an advisory board is expressly per mitted 129 by article 22 (7).
Under article 22 (4) it appears implied that a provision for such tribunal is not necessary if the detention is for less than three months.
As regards an opportunity to be heard, there is no absolute natural right recognised in respect of oral representation.
It has been held to depend on the nature of the tribunal.
The right to make a representation is affirmed by the Constitution in article 22 (5) and finds a place in the impugned Act.
The right to an orderly course of procedure to the extent it is guaranteed by article 22 (4) read with article 22 (7) (c), and by article 22 (7) (a) and (b), has also been thus provided in the Act.
It seems to me therefore that the petitioner 's contentions even on these points fail.
Section 14 was strongly attacked on the ground that it violated all principles of natural justice and even in fringed the right given by article 22 (5) of the Constitu tion.
It runs as follows: "14.
(1) No Court shall, except for the purposes of a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): 130 Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" By that section the Court is prevented (except for the purpose of punishment for such disclosure) from being in formed, either by a statement or by leading evidence, of the substance of the grounds conveyed to the detained person under section 7 on which the order was made, or of any representation made by him against such order.
It also prevents the Court from calling upon any public officer to disclose the substance of those grounds or from the produc tion of the proceedings or report of the.advisory board which may be declared confidential.
It is clear that if this provision is permitted to stand the Court can have no material before it to determine whether the detention is proper or not.
I do not mean whether the grounds are suffi cient or not.
It even prevents the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases men tioned in section 12 (1) (a) or (b).
In Machindar Shivaji Mahar vs The King (1), the Federal Court.
held that the Court can examine the grounds given by the Government to see if they are relevant to the object which the legislation has in view.
The provisions of article 22 (5) do not exclude that right of the Court.
Section 14 of the impugned Act appears to be a drastic provision.
which re quires considerable support to sustain it in a preventive detention Act.
The learned Attorney General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe.
I do not agree.
This argument is clearly not sustainable on the words of article 22 clauses (5) and (6).
The Government has the right under article 22 (6)not to disclose facts which it considers undesirable to disclose in the public interest.
It does not permit the Government to refrain from disclosing grounds which fall under clause (5).
(1) 131 Therefore, it cannot successfully be contended that the disclosure of grounds may be withheld from the Court in public interest, as a rule of evidence.
Moreover, the position is made clear by the words of article 22 (5).
It provides that the detaining authority shall communicate to such detained person the grounds on which the order has been made.
It is there fore ,essential that the grounds must be connected with the order of preventive detention.
If they are not so .connected the requirements of article 22 (5) are not ,complied with and the detention order will be invalid.
Therefore, it is open to a detained person to contend before a Court that the grounds on which the order ' has been made have no connection at all with the order, or have no connec tion with the circumstances or class or classes of cases under which a preventive detention order could be supported under section 12.
To urge this argument the aggrieved party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him.
For instance, a person is served with a paper on which there are written three stanzas of a poem or three alphabets written in three different ways.
For the validity of the detention order it is necessary that the grounds should be those on which the order has been made.
If the detained person is not in a position to put before the Court this paper, the Court will be prevented from considering whether the requirements of article 22 (5) are complied with and that is a right which is guaranteed to every person.
It seems to me therefore that the provisions .of section 14 abridge the right given under article 22 (5) and are there fore ultra vires.
It next remains to be considered how far the invalidity of this section affects the rest of the impugned Act.
The impugned Act minus this section can remain unaffected.
The omission of this section will not change the nature or the structure or the object of the legislation.
Therefore the decision that section 14 is ultra vires does not affect the validity of the rest of the Act.
In my opinion therefore Act IV of 1950, except .section 14, is not ultra vires.
It does not infringe any 132 provisions of Part III of the Constitution and the con tention of the applicant against the validity of that Act except to the extent of section 14, fails.
The petition therefore fails and is dismissed.
FAZL ALI J.
The question to be decided in this case is whether 'the (Act IV of 1950), is wholly or in part invalid and whether the peti tioner who has been detained under that Act is entitled to a writ in the nature of habeas corpus on the ground that his detention is illegal.
The question being a pure question of law can he decided without referring to a long chain of facts which are narrated in the petitioner 's application to this Court and which have a more direct bearing on the alleged mala fides of the authorities who have detained him than on the validity of the Act.
The Act which is impugned was enacted by the Parliament on the 26th February, 1950, and will cease to have effect on the 1st April, 1951, save as respects.
things done or omit ted to be done before that date.
The main provisions of the Act are set out in sections 7, 8, 9, 10,11, 12 and 14.
Section a (1) provides that "the Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any person who is.
a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, 133 it is necessary so to do, make an order directing that such person be detained.
" Sub sections (2) and (3) of this section empower a District Magistrate, Sub Divisional Magistrate or the Com missioner of Police in a Presidency Town to exercise the power conferred by and make the order contemplated in sub section (1), but with the qualification that any order made thereunder must be reported forthwith to the Government of the State to which the .officer in question is subordinate with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the necessity for the order.
Section 7 of the Act provides that the authority making an order of detention shall as soon as may be communicate to the person detained the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order, in a case where such ,order has been made by the Central Government, to that Government, and in a case where it has been made by a State Government or an officer subor dinate thereto, to the State Government.
Section 8 provides that the Central Government and each State Government shall, whenever necessary, constitute one or more advisory boards for the purposes of the Act, and state the qualifications of persons of which the board should consist.
Section 9 pro vides that when a detention order has been made with a view to preventing a person from acting in any manner prejudicial to the maintenance of supplies and services essential to the community or if it is made in regard to a person who is a foreigner within the meaning of the with a view to regulating his continued presence in India or making arrangements for his expulsion from India, the grounds on which the order has been made and the representation, if any,.
of the person detained shall, within six weeks from the date of detention, be placed 'before an advisory regard.
It will be noticed that this section does not provide that the cases of persons who are detained under section 3 (1) (a) (i) and (ii) will also be placed before the advisory board.
Section 10 lays down the 134 procedure to be followed by.
the advisory board and section 11 provides that in any case where the advisory board has reported that there is sufficient cause for the detention of the person concerned, the detention order may be confirmed and the detention of the person concerned may be continued for such period as the Central Government or the State Government, as the case may be, thinks fit.
Section 12,.
which is a very important section, as we shall presently see, runs as follows : "12 (1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceed ing one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a State or the maintenance of public order.
(2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State, Government, by such Govern ment, and where the order was made by any officer specified in sub section (2) of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is or has been or is qualified to be appointed as Judge of a High Court nominated in that behalf by the Cen tral Government or the State Government, as the case may be.
" Section 14, which is also a material section for the purpose of this case, is to the following effect : "(1) No Court shall, except for the purposes of ' a prosecution for an offence punishable under subsection (2), allow any statement to be made, or any 135 evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order; and, not withstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such commu nication or representation made, or the proceedings of an Advisory Board or that part of the report of an Advisory Board which is confidential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be the contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" The point which has been pressed before us is that the Act is invalid, as it takes away or abridges certain funda mental rights conferred by Part III of the Constitution of India, and in support of this general proposition, reliance is placed on article 13 (2) which runs as follows : "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" The rights guaranteed under Part III of the Constitution are classified under seven broad heads, as follows : (1) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedies.
136 Most of the articles which are said to have been disre garded occur under the heading "Right to freedom," these articles being articles 19 (1) (d), 21 and 22.
Another article which is also said to have been violated is article 32, under which the present application for a writ of habeas corpus purports to have been made.
Article 19 (1)is divided into seven sub clauses and runs as follows: "All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; " (f) to acquire, hold and dispose of property; and (g) to practise any profession, or to carry on any occupation, trade or business.
" Clauses (2), (3), (4), (5) and (6) of this article pro vide that nothing in clause (1) shall affect the operation of any existing law in regard to the rights under that clause, under certain conditions which are mentioned there in.
Clause (5), with which we are directly concerned and which will serve as a specimen to show the nature of these provisions, is to the following effect : "Nothing in sub clauses (d), (e) and (f)of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection 'of the interests of any Scheduled Tribe.
" The contentions advanced on behalf of the petitioner with reference to this article are : (1) that the Act under which he has been detained deprives him who is a citizen of the Republic of India of the right to move freely throughout the territory of India, which is guaran teed under article 19 (1) (d), and (2) 137 that under clause (5) of article 19, it is open to this Court to judge whether the restrictions imposed by the Act on the exercise of the right conferred by article 19 (1) (d) are reasonable or otherwise.
Before dealing with this argument, it is necessary to understand the meaning of the words used in article 19 (1)(d) and to have a clear compre hension as to the true nature of the right conferred there under.
The contention put forward on behalf of the peti tioner is that freedom of movement is the essence of person al liberty and any restraint on freedom of movement must be held to amount to abridgment or deprivation of personal liberty, as the case may be, according to the nature of the restraint.
After very careful consideration, I have come to the conclusion that this contention is well founded in law.
Blackstone in his "Commentaries on the Laws of England" (4th Edition, volume 1, page 134) states that "personal liberty consists in the power of locomotion, of changing . 'situation or moving one 's person to whatsoever place one 's own incli nation may direct, without imprisonment or restraint unless by due course of law.
" The authority of this state ment has never been questioned, and it has been bodily incorporated by H.J. Stephen in his "Commentaries on the Laws of England" and has been reproduced by Cooley in his well known treatise on "Constitutional Limitations" (8th Edition, volume 1, page 710), which was extensively quoted by both parties in the course of their arguments.
The view that freedom of movement is the essence of personal liberty will also be confirmed by reference to any book on the criminal law of England dealing with the offence of false imprisonment or any commentary on the Indian Penal Code dealing with the offences of wrongful restraint or confine ment.
Russell in his book on "Crimes and Misdemeanours" (8th Edition, volume 1, page 861), dealing with the offence of false imprisonment states as follows : "False imprisonment is unlawful and total restraint of the personal liberty of another, whether by constraining him or compelling him to go to a particular place or by confin ing him in a prison or 138 police station or private place, or by detaining him against his will in a public place . . . the essential element in the offence is the unlawful detention of the person or the unlawful restraint on his liberty.
Such interference with the liberty of another 's movements is unlawful, unless it may be justified . " Again, Dr. Gour in dealing with the offence of wrongful restraint in his book on "The Penal Law of British India" (5th Edition, page 1144) observes as follows : "Following the principle that every man 's person is sacred and that it is free, law visits with its penalties those who abridge his personal liberty, though he may have no design upon his person.
But the fact that he controls its movements for ever so short a time is an offence against the King 's peace, for no one has the right to molest another in his free movements.
" Dealing with the offence of wrongful confinement, the same learned author observes as follows at page 1148 of his book : " 'Wrongful confinement ' is a species of ' wrongful restraint ' as defined in the last section.
In wrongful restraint, there is only a partial suspension of one 's liberty of locomotion, while in wrongful confinement there is a total suspension of liberty 'beyond certain circum scribing limits '.
" Both these authors speak of restraint on personal liber ty and interference with the liberty of one 's movements or suspension of liberty or locomotion as interchangeable terms.
In Bird vs Jones (1), Coleridge J. said that "it is one part of the definition of freedom to be able to go whithersoever one pleases." A similar opinion has been expressed by several authors including Sir Alfred Denning in his book entitled "Freedom under the Law.
" There can there fore be no doubt that freedom of movement is in the last analysis the essence of personal liberty, and just as a man 's wealth is generally measured in this country in terms of rupees, annas and pies, one 's personal liberty depends upon the extent of his freedom of movement.
But it is contended on behalf of the State that freedom of move (1) 7 Q.B. 742.
139 ment to which reference has been made in article 19 (1) (d) is not the freedom of movement to which Blackstone and other authors have referred, but is a different species of freedom which is qualified by the words "throughout the territory of India.
" How the use of the expression "throughout the territory of India" can qualify the meaning of the rest of the words used in the article is a matter beyond my compre hension.
In my opinion, the words "throughout the territory of India" were used to stretch the ambit of the freedom of movement to the utmost extent to which it could be guaran teed by our Constitution.
The Constitution could not guar antee freedom of movement outside the territorial limits of India, and so has used those words to show that a citizen was entitled to move from one corner of the country to another freely and without any obstruction.
"Throughout" is an amplifying and not a limiting expression, and I am sur prised to find that the expression "throughout the territory of India," which was used to give the widest possible scope to the freedom of movement, is sought to be construed as an expression limiting the scope and nature of the freedom.
In my opinion, the words "throughout the territory of India," having regard to the context in which they have been used here, have the same force and meaning as the expression "to whatsoever place one 's own inclination may direct" used by Blackstone, or the expression "freedom to be ,able to go whithersoever one pleases" used by Coleridge J. in Bird vs Jones (1).
I am certain that neither of these authorities contemplated that the freedom of movement which is vouch safed to a British citizen, is guaranteed beyond the terri torial limits of British territories.
The question as to whether preventive detention is an encroachment on the right guaranteed by article 19 (1) (d) has been considered by the Nagpur, Patna and Calcutta High Courts.
The view which has .been ultimately adopted by these High Courts is that preventive detention is not a violation of the right guaranteed by article 19 (1) (d), but, in the Calcutta (1) 7 Q.B. 742.
140 High Court, where the matter has been elaborately discussed, at least five Judges have held that it does, and in the ultimate analysis the number of Judges.
who have held the contrary view appears to be the same.
Having regard to the fact that the view expressed by so many learned Judges is opposed to the view I am inclined to take, I consider it necessary to deal briefly with the main objections which have been raised in support of the narrow meaning sought to be attached to the words in article 19 (1)(d).
I have already dealt with one of them which is based on the ex pression "throughout the territory of India.
" A. nd I shall now proceed to deal with the, others seriatim.
I. It will be recalled that clause (5) of article 19, which I have already quoted in full, provides among other things that nothing in clause (1) (d) shall affect the operation of any law, present or future, imposing reasonable restrictions on the exercise of the right of freedom of movement either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
It has been argued that the use of the words "interests of any Scheduled Tribe" in this clause shows that the right guaranteed by article 19 (1) (d) is a limited right of movement, such as the right to visit different localities and to go from one place to another and is different from the expression "freedom of movement" which has been stated by Blackstone to be another name for personal liberty.
It is pointed out that the restrictions in contemplation here are mainly restrictions preventing undesirable outsiders from visiting Scheduled Areas and exploiting Scheduled Tribes, and if the words "freedom of movement" had been used in the larger sense, such a small matter would not have found a place in clause (5) of article 19.
I must frankly confess that I am unable to appreciate this argument and to hold that a mere reference to Scheduled Tribes affects the plain meaning of the words used in clause (1) (d) of article 19.
The words used in article 19 (1) (d) are very wide and mean that a person can go at his will in any direction to any locality and to any distance.
Re straint on a freedom.
141 so wide in scope and extent may assume a variety of forms and may include internment or externment of a person, his confinement to a particular locality or within the walls of a prison, his being prevented from visiting or staying in any particular area, etc.
The framers of the Constitution wanted to save all restrictive legislation affecting freedom of movement made in the interests of the general public (which expression means the same thing as "public interests") and I think that the law in regard to preventive detention is fully covered by the expression "restrictions imposed in the public interests.
" But they also remembered that there were restrictive laws made in the interests of an important community and that similar laws may have to be made in future and hence they added the words "for the protection of the interests of any Scheduled Tribe.
" A reference to the Fifth Schedule of the Constitution and the corresponding provisions of the Government of India Act, 1935, as well as to certain laws made for Chota Nagpur, Santhai Pargangs and .other localities will show that great importance has been attached in this country to.
the protec tion and preservation of the members of the scheduled tribes .and maintenance of order in tribal areas, and this, in my opinion, is sufficient to account for the special mention of the scheduled tribes in clause (5).
It may, at first sight, appear to be a relatively small matter, but in their anxiety to cover the whole field of restrictive laws made whether in the public interest or in the interests of a particular community and not to leave the smallest loophole, the framers of the Constitution apparently decided to draft the clause in the present form.
As far as I am aware, there are no restrictive laws made in the interests of any commu nity other than the scheduled tribes, and I think clause (5)is sufficiently comprehensive to include the smallest as well as the most complete restrictions on freedom of move ment.
I am also satisfied that the mere mention of sched uled tribes in clause (5) cannot change, the plain meaning of the words of the main provision which we find in article 19 (1) (d) and confine it to some kind of peculiar and truncated freedom of 142 movement which is unconnected with personal liberty and which is unknown to any Constitution with which.
we are familiar: It will perhaps be not out of place to refer in this.
connection to Ordinance XIV of 1943, which is one of the ordinances by which the Defence of India Act, 1939, was partly amended.
This ordinance provides for "the apprehension and detention in custody of any person whom the authority empowered by the rules to appre hend or detain as the case may be suspects, on grounds appearing to such authority to be reasonable, of being of hostile origin, or of having acted, acting, being about to act, or being likely to act in a manner prejudicial to the public safety or interest, the defence of British India, the maintenance of public order, His Majesty 's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the efficient prosecution of the war, or with respect to whom such authority is satisfied that his apprehension and detention are necessary for the purpose of preventing him from acting in any such prejudi cial manner, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do or abstain from doing anything.
" The points to be noted in connection with the ordinance are : (1) that it is an ordinance specifically providing for apprehension and detention; (2) that notwithstanding the fact that there is a gener al reference in it to acts prejudicial to public safety or interests and maintenance of public order there is also a specific reference to maintenance of peaceful conditions in tribal areas; (3) that tribal areas and scheduled tribes are, kindred subjects as would appear from the Fifth Schedule appended to the Constitution; and (4) that maintenance of peaceful conditions in tribal areas may be as much in the public interest as in the inter ests of persons living in those areas.
143 This ordinance shows at least this much that sometimes the law of preventive detention can also be made in the interests of scheduled tribes or scheduled areas and conse quently the mere mention of scheduled tribes in clause (5) does not necessarily exclude laws relating to preventive detention from the scope of article 19 (5) The same remarks apply to the ordinance called "The Restriction and Detention Ordinance, 1944" (Ordinance No. III of 1944) which empow ered the Central Government or the Provincial Government to detain and make orders restricting the movements of certain persons in the interest of public safety, maintenance of public order as well as maintenance of peaceful conditions in tribal areas, etc.
It is also argued that since preventive detention amounts to a total deprivation of freedom of movement, it is not a violation of the right granted under article 19 (1) (d) in regard to which the word "restriction" and not "deprivation" has been used in clause (5).
This argument also does not appeal to me.
There are really two questions which fall to be decided in this case, viz., (a) Does pre ventive detention take away the right guaranteed by article 19 (1) (d)?; and (b) if so, what are the consequences, if any ? It seems obvious to me that preventive detention amounts to a complete deprivation of the right guaranteed by article (19) (d).
The meaning of the word "restriction" is to be considered with reference to the second question and I think that it will be highly technical to argue that deprivation of a right cannot be said to involve restriction on the exercise of the right.
In my opinion, having regard to the context in which the word "restriction" has been used, there is no antithesis between that word and the word "depriva tion.
" As I have already stated, restraint on the right to move can assume a variety of forms and restriction would be the most appropriate expression to be ' used in clause (5) so as to cover all those forms ranging from total to various kinds of partial deprivation freedom of movement.
I will however have to advert to this subject later and will try to show that the 19 144 construction I have suggested is supported by good authori ty.
It appears that some of the Judges who had to deal with the question which we have before us were greatly influenced by the argument that if the deprivation of per sonal liberty amounts to deprivation of the right granted under article 19 (1) (d), any conviction for an offence under the Indian Penal Code involving a sentence of impris onment will be subject to judicial review on the ground of reasonableness of the provisions of the Code under which the conviction is recorded.
Meredith C.J. of the Patna High Court has given expression to his concern for the situation which will thereby arise, in these words : "It will be seen that the claim made is very sweeping indeed.
It would mean that every law under which a person may be imprisoned, including all the provisions of the Penal Code, is open to examination by the Courts on the ground of reasonableness.
It makes the Courts supreme arbiters in regard to any such legislation, and they can reject it or accept it in accordance with their ideas of whether it appeals to their reason.
But ideas of reasonableness or otherwise are apt to vary widely.
Take for example, laws relating to prohibition or take such a matter as adultery which the Indian law regards as a crime punishable with imprisonment but the English law does not.
It is difficult to believe the framers of the Constitution ever intended to place so enormous a power in the hands of the Courts . . . "[Rattan Roy vs The State of Biharl.
The obvious and strictly legal reply to this argument is that the consideration, which has so greatly weighed with the learned Chief Justice, is not enough to cut down the plain meaning of the general words used in article 19 (5) of the Constitution.
As has been pointed out in a number of cases, "in construing enacted words, we are not concerned with the policy involved or with the results injurious or otherwise which may follow by giving effect to the language 145 used" [King Emperor vs Benoari Lal Sharma and others (1)I Apart from this aspect of the matter, I agree with one of the learned Judges Of the Calcutta High Court in his remark that "no calamitous or untoward result will follow even if the provisions of the Penal Code become justiciable.
" I am certain that no Court would interfere with a Code which has been the law of the land for nearly a century and the provisions of which are not in conflict with the basic principles of any system of law.
It seems to me that this Court should not be deterred from giving effect to a fundamental right granted under the Constitution, merely because of a vague and unfounded fear that something catas trophic may happen.
I have so far proceeded on the assumption that the basis of the objection raised by Meredith C.J. is correct in law, but, in my opinion, it is not.
Crime has been defined to consist in those acts or omissions involving breach of a duty to which a sanction is attached by law by way of pun ishment or pecuniary penalty in the public interests.
(See Russell 's "Crimes and Misdemeanours ").
Section 2 of the Indian Penal Code, 1860, provides that "every person shall be liable to punishment under this Code ' and not otherwise for every act or omission contrary to the provisions there of, of which he shall be guilty within British India ." The Indian Penal Code does not primarily or necessarily impose restrictions on the freedom of movement, and it is not correct to say that it is a law imposing restrictions on the right to move freely.
Its primary object is to punish crime and not to restrict movement.
The punishment may consist in imprisonment or a pecuniary penalty.
If it consists in a pecuniary, penalty, it obviously involves no restriction on movement; but if it consists in imprisonment, there is a restriction on movement.
This restraint is imposed not under a law imposing restrictions on movement but under a law defining crime and making it punishable.
The punishment is correlated directly with the violation of some other person 's right and not with the right of (1) at p. 177.
146 movement possessed by the offender himself.
In my opinion, therefore, the Indian Penal Code does not come within the ambit of the words "law imposing restriction on the right to move freely ".
In the course of the arguments, the expression "punitive detention" was frequently used and the tendency was to put it on the same footing as preventive detention for the purpose of certain arguments.
Punitive detention is however essentially different from preventive detention.
A person is punitively detained only after a trial for committing a crime and after his guilt has been established in a compe tent Court of justice.
A person so convicted can take his case to the State High Court and sometimes bring it to this Court also; and he can in the course of the proceedings connected with his trial take all pleas available to him including the plea of want of jurisdiction of the Court of trial and the invalidity of the law under which he has been prosecuted.
The final judgment in the criminal trial will thus constitute a serious obstacle in his way if he chooses to assert even after his conviction that his right under article 19 (1) (d) has been violated.
But a person who is preventively detained has not to face such an obstacle whatever other obstacle may be in his way.
It was pointed out that article 19 being confined to citizens, the anomalous situation will follow that in cases of preventive detention, a citizen will be placed in a better position than a non citizen, because if a citizen is detained his detention will be open to some kind of judicial review under article 19 (5), but if a non citizen has been detained his case will not be open to such review.
In this view, it is said that the whole Act relating to preventive detention, may be declared to be void if it is unreasonable, though it concerns citizens as well as persons other than citizens.
I must frankly state that I am not at all per turbed by this argument.
It is a patent fact that the Constitution has confined all the rights mentioned in arti cle 19 (1) to citizens.
It is equally clear that restric tions on those rights are to a limited extent at least open to judicial review The very same question which is 147 raised in regard to article 19 (1)(d) will arise with regard to most of the other sub clauses.
A citizen has the right to assemble peaceably and without arms, to form associations or unions and so on.
If there is any law imposing unreason able restrictions on any of these rights, that law will not be good law so far as citizens are concerned, but it may be good law so far as non citizens are concerned.
I do not see why a similar situation arising with regard to the right granted under sub clause (d) should be stated to be anoma lous.
So far as the right of free movement is concerned, a non citizen has been granted certain protections in articles 21 and 22.
If a ,citizen has been granted certain other additional protections under article 19 (1) (d), there is no anomaly involved in the discrimination.
I think that it is conceivable that a certain law may be declared to be void as against a citizen but not against a non citizen.
Such a result however should not affect our mind if it is found to have been clearly within the contemplation of the framers of the Constitution.
V. It was contended that the rights declared by article 19 are the rights of a free citizen and if he has already been deprived of his liberty in the circumstances referred to in articles 20, 21 and 22, then it would be idle to say that he still enjoys the right referred to in article 19.
After giving my fullest consideration to this argument, I have not been able to appreciate how it arises in this case.
There is nothing in article 19 go suggest that it applies only to those cases which do not fall under articles 20, 21 and 22.
Confining ourselves to preventive detention, it is enough to point out that a person who is preventively de tained must have been, before he lost his liberty, a free man.
Why can 't he say to those who detained him: "As a citizen I have the right to move freely and you cannot curtail or take away my right beyond the limits imposed by clause (5)of article 19.
" This is the only question which arises in the case and it should not be obscured by any abstruse or metaphysical considerations.
It is true that if you put a man under detention, he cannot move and therefore he is not in a position to 148 exercise the right guaranteed under article 19 (1) (d).
but this is only the physical aspect of the matter and a person who is bed ridden on account of disease suffers from a similar disability.
In law, however,.
physical duress does not deprive a person of the right to freedom of movement.
If he has been detained under some provision of law imposing restrictions on the freedom of movement, then the question will arise whether the restrictions are reasonable.
If he has been detained under no provision of law or under some law which is invalid, he must be set at liberty.
To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each article is a code by itself and is independent of the others.
In my opinion, it cannot be said that articles 19, 20, 21 and 22 do not to some extent over lap each other.
The case of a person who is convicted of an offence will come under articles 20 and 21 and also under article 221 so far as his arrest and detention in custody before trial are concerned.
Preventive detention, which is dealt with in article 22, also amounts to deprivation of personal liberty which is referred to in article 21, and is a violation of the right of freedom of movement dealt with in article 19 (1) (d).
That there are other instances of overlapping of articles in the Constitution may be illus trated by reference to article 19 (1) (f) and article 31 both of which deal with the right to property and to some extent overlap each other.
It appears that some learned High Court Judges, who had to deal with the very question before us, were greatly impressed by the statement in the report of the Drafting Committee of the Constituent Assembly on article 15 (corresponding to the present article 21), that the word "liberty" should be qualified by the insertion of the word "personal" before it for otherwise it may be construed very widely so as to include the freedoms dealt with in article 13 (corresponding to the present article 19).
I am not however prepared to hold that this statement is decisive on the question of the construction of the words used in article 19 (1) (d) which are quite plain and can be construed without any 149 extraneous help.
Whether the report of the Drafting Commit tee and the debates on the floor of the House should be used at all in construing the words of a statute, which are words of ordinary and common use and are not used in any technical or peculiar sense, is a debatable question; and whether they can be used in aid of a construction which is a strain upon the language used in the clause to be interpreted is a still more doubtful matter.
But, apart from these legal consider ations, it is, I think, open to us to analyse the statement and see whether it goes beyond adding a somewhat plausible reason a superficially plausible reason for a slight verbal change in article 21.
It seems clear that the addi tion of the word "personal" before "liberty" in article 21 cannot change the meaning of the words used in article 19, nor can it put a matter which is inseparably bound up with personal liberty beyond its place.
Personal liberty and personal freedom, in spite of the use of the word "personal ," are, as we find in several books, sometimes used in a wide sense and embrace freedom of speech, freedom of .asso ciation, etc.
These rights are some of the most valuable phases or elements of liberty and they do not cease to be so by the addition of the word "personal.
" A general statement by the Drafting Committee referring to freedom in plural cannot take the place of an authoritative exposition of the meaning of the words used in article 19 (1)(d), which has not been specifically referred to and cannot be such an overriding consideration as to compel us to put a meaning opposed to reason and authority.
The words used in article 19 (1) (d) must be construed as they stand, and we have to decide upon the words themselves whether in the .case of preventive detention the right under article 19 (1) (d) is or is not infringed.
But, as I shall point out later, however literally we may construe the words used in article 19 (1) (d) and however restricted may be the meaning we may attribute to those words, there can be no escape from the conclusion that preventive detention is a direct infringe ment of the right guaranteed in article 19 (1) (d).
150 Having dealt with the principal objections, I wish to revert once again to the main topic.
The expressions "per sonal liberty" and" personal freedom" have, as we find in several books, a wider meaning and also a narrower meaning.
In the wider sense, they include not only immunity from arrest and detention but also freedom of speech, freedom of association, etc.
In the narrower sense, they mean immunity from arrest and detention.
I have shown that the juristic conception of "personal liberty ," when these words are used in the sense of immunity from arrest, is.
that it consists in freedom of movement and locomotion.
I have also pointed out that this conception is at the root of the criminal law of England and of this country, so far as the offences of false imprisonment and wrongful confinement are concerned.
The gravamen of these offences is restraint on freedom of movement.
With these facts in view, I have tried to find out whether there is any freedom of movement known in England apart from personal liberty used in the sense of immunity from arrest and detention, but I find no trace of any such freedom.
In Halsbury 's Laws of England (2nd Edition, volume 6, page 391), the freedoms mentioned are the right to per sonal freedom (or immunity from detention or confinement), the right to property, the right to freedom of speech, the right of public meeting, the right of association, etc.
Similar classifications will be found in Dicey 's "Introduc tion to the Study of the Law of the Constitution" and Keith 's "Constitutional Law" and other books on constitu tional subjects, but there is no reference anywhere to any freedom or right of movement in the sense in which we are asked to.
construe the words used in article 19 (1) (d).
In the Constitutions of America, Ireland and many other countries where freedom is prized, there is no reference to freedom or right of movement as something distinct from personal liberty used in the sense of immunity from arrest and confinement.
The obvious explanation is that in legal conception no freedom or right of movement exists apart from what personal liberty connotes and therefore a separate treatment of this freedom was not necessary.
It is only in the Constitution of the Free 151 City of Danzig, which covers an area of 701 square miles, that we find these words in article 75 : "All nationals shall enjoy freedom of movement within the City.
" There is however no authoritative opinion available to support the view that this freedom is anything different from what is otherwise called personal liberty.
The problem of construc tion in regard to this particular right in the Constitution of Danzig is the same as in our Constitution.
Such being the general position, I am confirmed in my view that the juristic conception that personal liberty and freedom of movement connote the same thing is the correct and true conception, and the words used in article 10 (1) (d) must be construed according to this universally accepted legal conception.
This conclusion is further supported by reference to the war legislation in England and in India, upon which the law of preventive detention, which has been in force in this country since the war, is based.
In the first world war, the British Parliament passed the Defence of the Realm Consoli dation Act, in 1914, and a number of regulations were made under it including regulation 14 B, which permitted the Secretary of State to subject any person "to such obliga tions and restrictions as hereinafter mentioned in view of his hostile origin or associations." Lord Atkin in refer ring to this regulation said in Liversidge vs Sir John Anderson (1), "that the regulation undisputedly gave to a Secretary of State unrestricted power to detain a suspected person." Apparently, Lord Atkin meant that the restriction referred to in the Act included preventive detention.
Under this regulation, one Arthur Zadig was interned, and he applied to the King 's Bench for a writ of habeas corpus which was refused.
The matter ultimately came up before the House of Lords in Rex vs Halliday (2), and the noble Lords in dealing with the case proceeded on the assumption that there was no difference between internment and incarceration or imprisonment.
Lord Shaw in narrating the facts of the case stated : (1) (2) ; 20 152 His person was seized, he has been interned .
The appellant lost his liberty and was interned . " He then proceeded to state that there was no difference between internment and imprisonment and quoted the following passage from Blackstone : "The confinement of the person, in any wise, is an imprisonment.
So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment.
" Proceeding on this footing (which I find to be the common basis in all other speeches delivered in the case, though Lord Shaw had given a dissenting judgment), Lord Finlay while dealing with the provisions of the regulations observed : "One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy "(1).
Again, Lord Atkinson while dealing with the merits of the case made the following observations : "If the legislature chooses to enact that he can be deprived of his liberty and incarcerated or interned for certain things for which he could not have been heretofore incarcerated or interned, that enactment and the orders made under it if intra vires do not infringe upon the Habeas Corpus Acts or take away any right conferred by Magna Charta . ,, (2).
This passage read with the previous passage quoted by me will show that both internment and incarceration were re garded as "restrictions on the freedom of movement "and that deprivation of liberty and restriction on freedom of move ment were used as alternative expressions bearing the same meaning.
The same conclusion is to be drawn by reference to the regulations made in the last world war under the Emergency Powers (Defence)Act, 1939.
The regulation which directly dealt with detention orders was 18 B.
This regulation and a number of other regulations have been placed in Part I under the heading" Restrictions (1) (2) 153 On movements and activities of persons .
" The classifica tion is important, because it meets two principal arguments advanced in this case.
It shows firstly that detention is a form of restriction and secondly that it is a restriction on movement.
I have noticed that" movement" is used in plural, and the heading also refers to restrictions on activities, but, having regard to the subjects classified under this head, movement undoubtedly refers to physical movement and includes such movements as entering a particu lar locality, going from one place to another, etc.
, i.e., the very things to which article 19 (1) (d) is said to have reference.
In Liversidge 's case, in construing the provi sions of the Act of 1939, Viscount Maugham observed as follows : "The language of the Act of 1939 (above cited) shows beyond doubt that Defence Regulations may be made which must deprive the subject "whose detention appears to the Secre tary of State to be expedient in the interests of public safety" of all his liberty of movement while the regulations remain in force"(1).
Thus Viscount Maugham also considered detention to be synonymous with deprivation of liberty of movement.
The classification that we find in the Defence of the Realm Regulations was with a little verbal modification adopted in the Defence of India Rules, and we find that here also rule 26, which dealt with preventive detention, has been placed under the heading "Restriction of movements and activities of persons.
" A somewhat similar classification has also been adopted in a series of Provincial Acts and Ordinances relating to maintenance of order [see section 2 of the Bihar Maintenance of Public Order.
Act, 1949, section 16 of the West Bengal Security Act, 1948, section 4 of the East Punjab Public Safety Act, 1949, section 2 of the Madras Maintenance of Public Order Act, 1947, section 3 of the U.P. Maintenance of Public Order Temporary Act, 1947, and section 2 of the Bombay Public Security Measures Act, 1947.
In these Acts and Ordinances, preventive detention and certain (1) 154 other forms of restriction on movement such as internment, externment, etc. have been classed together and dealt with more or less on the same footing, and sometimes they have been dealt with in different clauses of the same section.
In one of the Acts, the same advisory board is to deal with the case of a detenue as well as that of an externed person, and there are also similar provisions giving them the right to represent their case to the Government.
I will now assume for the sake of argument that the freedom of movement to which reference is made in article 19 (1) (d) has nothing to do with personal liberty and that the words which occur in the article bear the restricted meaning attributed to them by the learned Attorney General and some of my colleagues.
It seems to me that even on this assump tion, it is difficult to arrive at any conclusion other than what I have already arrived at.
There can be no doubt that preventive detention does take away even this limited free dom of movement directly and substantially, and, if so, I do not see how it can be argued that the right under article 19 (1) (d) is not infringed if the alternative interpretation is accepted.
We have only to ask ourselves: Does a person who is detained retain even a fraction of his freedom of movement in howsoever restricted sense the term may be used and does he not lose his right to move freely from one place to another or visit any locality he likes as a necessary result of his detention ? I think I should refer here once more to the fact that in the Defence of the Realm Regula tions and Defence of India Rules, preventive detention is classed under the heading "Restriction of movements and activities." "Movement" is here used in plural and refers to that very type of movement which is said to be protected by article 19 (1) (d), moving from one State or place to another, visiting different localities, etc.
One of the objects of 'preventive detention is to restrain the person detained from moving from place to.
place so that he may not spread disaffection or indulge in dangerous activities in the ' places he visits.
The same consideration applies to the cases of persons who are interned or externed.
Hence, externment, 155 internment and certain other forms of restriction on move ment have always been treated as kindred matters belonging to the same group or family and the rule which applies to one must necessarily apply to the other.
It is difficult to hold that the case of externment can possibly be dealt with on a different footing from the case of preventive deten tion.
I am however interested to find that the Patna and Bombay High Courts have held that a person who is externed can successfully assert that the right granted to him under article 19 (1) (d) has been violated.
This view has not been seriously challenged before us, and, if it is correct, I really do not see how it can be held that preventive deten tion is also not a direct invasion of the right guaranteed in article 19 (1) (d).
Perhaps, one may pause here to ask what kind of laws were in contemplation of the framers of the Constitution when they referred to laws imposing re strictions in the public interest in article 19 (5).
I think the war laws and the Provincial Acts and Ordinances to which I have already referred must have been among them, these being laws which expressly purport to impose restrictions on movements.
If so, we should not overlook the fact that preventive detention was an inseparable part of these laws and was treated as a form of restriction on movement and classified as such.
It seems to me that when the matter is seriously considered, it would be found that the interpreta tion of the learned Attorney General attracts the operation of article 13 (2) no less strongly and directly than the interpretation I have suggested, and I prefer the latter only because I consider that it is legally unsound to treat what is inseparably bound up with and is the essential element in the legal concept 1of personal liberty as a wholly separate and unconnected entity.
But, as I have already indicated, it will be enough for the purpose of this case if we forget all about personal liberty and remember only that detention is, as is self evident and as has been pointed out by Viscount Maugham and other eminent judges, another name for depriving a person of all his "liberty of movement.
" It was pointed out in the course of the arguments 156 that preventive detention not only takes away the right in article 19 (1) (d) but also takes away all the other rights guaranteed by article 19 (1), except the right to hold, acquire and dispose of property.
Where exactly this argu ment is intended to lead us to, I cannot fully understand, but it seems to me that it involves an obvious fallacy, because it overlooks the difference in the modes in which preventive detention operates on the right referred to in sub clause (d) and other sub clauses of article 19 (1).
The difference is that while preventive detention operates on freedom of movement directly and inevitably, its operation on the other rights is indirect and consequential and is, often only notional.
One who is preventively detained is straightaway deprived of his right of movement as a direct result of his detention, but he loses the other rights only in consequence of his losing freedom of movement.
Beside% while freedom of movement is lost by him in all reality and substance, some of the other rights may not be lost until he wishes to exercise them or is interested in exercising them.
A person who is detained may not be interested in freedom of association or may not pursue any profession, occupation, trade or business.
In such a case, the rights referred to are lost only in theory and not as a matter of substance.
I wish only to add that when I said that I was not able to understand the full force of the argument which I have tried to deal with, what I had, in mind was that if preventive detention sweeps away or affects almost all the rights guaranteed in article.
19 (1), the matter deserves very serious consideration and we cannot lightly lay down that article 13 (2) does not come into operation.
Being fully alive to the fact that it is a serious matter to be asked to declare a law enacted by Parliament to be unconstitutional, I have again and again asked myself the question: What are we to put in the scales against the construction which I am inclined to adopt and in favour of the view that preventive detention does not take away the freedom of movement guaranteed in article 19 (1) (d)? The inevitable answer has always been that while in one of the scales 157 we have plain and unambiguous language, the opinion eminent jurists, judicial dicta of high authority, constitu tional practice in the sense that no Constitution refers to any freedom of movement apart from personal liberty, and the manner in which preventive detention has been treated in the very laws on which our law on this subject is based, all that we can put in the opposite scale is a vague and ill rounded apprehension that some fearful object such as the revision of the Penal .Code is looming obscurely in the distant horizon, the peculiar objection that the mere men tion of the scheduled tribes will alter the meaning of certain plain words, the highly technical and unreal dis tinction between restriction and deprivation and the assump tion not warranted by any express provision that a person who is preventively detained cannot claim the right of freedom of movement because he is not a free man and certain other things which, whether taken singly or ,collectively, are too unsubstantial to carry any weight.
In these circum stances, I am strongly of the view that article 19 (1)(d) guarantees the right of freedom of movement in its widest sense, that freedom of movement being the essence of person al liberty, the right guaranteed under the article is really a right to personal liberty and that preventive detention is a deprivation of that right.
I am also of the view that even on the interpretation suggested by the learned Attor ney General, preventive detention cannot but be held to be a violation of the right conferred by article 19 ,(1) (d).
In either view, therefore, the law of preventive detention is subject to such limited judicial review as is permitted under article 19 (5).
The scope of the review is simply to see whether any particular law imposes any unreasonable restrictions.
Considering that the restrictions are imposed on a most valuable right, there is nothing revolutionary in 'the legislature trusting the Supreme Court to examine whether an Act which infringes upon that right is within the limits of reason.
I will now pass on to the consideration of article 21, which runs as follows : "No person shall be deprived of his life or personal 158 liberty except according to procedure established by law.
" Here again, our first step must be to arrive at a clear meaning of the provision.
The only words which cause some difficulty in the proper construction of the article are "procedure established by law." The learned Attorney General contended before us that the word "law" which is used in article 21 means State made law or law enacted by the State.
On the other hand, the learned counsel for the petitioner strongly contended that the expression "procedure established by law" is used in a much wider sense and approximates in meaning to the expres sion "due process of law" as interpreted by the Supreme COurt of America in the earliest times and, if that is so, it means exactly what some of the American writers mean to convey by the expression "procedural due process." In the course of the arguments, the learned Attorney General referred us to the proceedings in the Constituent Assembly for the purpose of showing that the article as originally drafted contained the words "without due process of law" but these words were subsequently replaced by the words "except according to procedure established by law." In my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in article 21, especially when they are plain and unambiguous, they are relevant to show that the Assembly intended to avoid the use of the expression "without due process of law.
" That expression had its roots in the expression "per legem terrae" (law of the land) used in Magna Charta in 1215.
In the reign of Edward III, 'however, the words "due process of law" were used in a statute guaranteeing that no person will be de prived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch.
The expression was after wards adopted in the American Constitution and also in the Constitutions of some of the constituent States, though some of the States preferred to use the 159 words "in due course of law" or "according to the law of the land." [See Cooley on "Constitutional Limitations," 8th Edn.
II, pages 734 51.
In the earliest times, the American Supreme Court construed "due process of law" to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word "due.
" The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was ob served as follows : "It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case.
This difficulty and perhaps impossi bility was referred to by Mr. Justice Miller in Davidson vs New Orleans, where the opinion was expressed that it is wiser to ascertain their intent and application by the 'gradual process of judicial inclusion and exclusion, ' as the cases presented for decision shall require, with the reasoning on which such decisions may be rounded:" Missouri Pacific Railway Co. vs Humes (1).
It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words "according to procedure established by law" which occur in the Japanese Constitution framed in 1946.
It will not be out of place to state here in a few words how the Japanese Constitution came into existence.
It appears that on the 11th October, 1945.
General McArthur directed the Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was.
decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander 's Headquar ters.
Subsequently the Chief of this Section ,and the staff drafted the Constitution with the help of American constitu tional lawyers who were called to assist the Government Section in the task.
This Constitution, as a learned writer has remarked, bore (1) ; at page 513.
21 160 on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble "particularly reminiscent of the American Declaration of Independence, a preamble which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand" [See Ogg and Zink 's "Modern Foreign Governments"].
One of the character istics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chap ter, consisting of 31 articles, entitled "Rights and Duties of the People," which provided for the first time an effec tive "Bill of Rights" for the Japanese people.
The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34).
Now there are two matters which deserve to be noticed : (1) that the Japanese Constitution was framed wholly under American influence; and (2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression "due process of law" to what is expressed by certain American writers by the somewhat quaint but useful expression "proce dural due process.
" That there was such a trend would be clear from the following passage which I quote from Carl Brent Swisher 's "The Growth of Constitutional Power in the United States" (page 107.): "The American history of its interpretation falls into three periods.
During the first period, covering roughly the first century of government under the Constitution, due process was interpreted principally as a restriction upon procedure and largely the judicial procedure by which the government exercised its powers.
During the second period, which, again roughly speaking, extended through 1936, due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage.
During the third period, extending from 1936 to date, the use of due 161 process as a substantive restriction has been largely sus pended or abandoned, leaving it principally in its original status as a restriction upon procedure.
" In the circumstances mentioned, it seems permissible to surmise that the expression "procedure established by law" as used in the Japanese Constitution represented the current trend of American judicial opinion with regard to "due process of law," and, if that is so, the expression as used in our Constitution means all that the American writers have read into the words "procedural due process." But I do not wish to base any conclusions upon mere surmise and will try to examine the whole question on its merits.
The word "law" may be used in an abstract or concrete sense.
Sometimes it is preceded by an article such as "a" or "the" or by such words as "any," "all," etc., and sometimes it is used without any such prefix.
But, generally, the word "law" has a wider meaning when used in the abstract sense without being preceded by an article.
The question to be decided is whether the word "law" means nothing more than statute law.
Now whatever may be the meaning of the expression "due process of law," the word "law" is common to that expression as well as "procedure established by law" and though we are not bound to adopt the construction put on "law" or "due process of law" in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them.
I will therefore in the first instance set out certain quotations from a few of the .decisions of the American Supreme Court construing the word "law" as used in the expression "due process of law," in so far as it bears on the question of legal procedure.
(1) "Although the legislature may at its pleasure provide new remedies or change old ones, the power is never theless subject to the condition that it cannot remove certain ancient land marks, or take away certain fundamen tal rights which have been always 162 recognized and observed in judicial procedures:" Bardwell vs Collins (1).
(2) ' 'By the law of the land is most clearly intended the general law: a law which hears before it condemns, which proceeds upon inquiry and renders judgments only after trial.
The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society:" Dartmouth College Case (2).
(3) "Can it be doubted that due process of law signifies a right to be heard in one 's defence ? If the legislative department of the government were to enact a statute confer ring the right to condemn the citizen without any opportuni ty whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution ? If this be true, as it undoubtedly is, how can it be said that the judicial department.
the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be viola of the Constitution ? If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it.
If such authority exists then in conse quence of their establishment, to compel obedience to law and enforce justice, Courts possess the right to inflict the very wrongs which they were created to prevent:" Hovey vs Elliott(3).
(4) "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his say in Court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.
Judgment without such citation and opportunity wants all the attributes of a judicial determi nation; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered:" Gatpin vs Page(4).
Thus, in America, the word "law" does not mean merely State made law or law enacted by the State and does not exclude certain fundamental principles of (1) ; (3) ; at page 417.
(2) (4) 163 justice which inhere in every civilized system of law and which are at the root of it.
The result of the numerous decisions in America has been summed up by Professor Willis in his book on "Constitutional Law" at page 662, in the statement that the essentials of due process are: (1) no tice, (2) opportunity to be heard, (3) an impartial tribu nal, and (4) orderly course of procedure.
It is pointed out by the learned author that these essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled.
For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard.
Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case.
So far as 'orderly course of proce dure is concerned, he explains that it does not require a 'Court to strictly weigh the ,evidence but it does require it to examine the entire record to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts.
The view expressed by other writers is practically the same as that expressed by Professor Willis, though some of them do not expressly refer to the fourth element, viz., orderly course of procedure.
The real point however is that these four elements are really different aspects of the same right, viz., the right to be heard before one is condemned.
So far as this right is concerned, judicial opinion in England appears to be the same as that in America.
In Eng land, it would shock one to be told that a man can be de prived of his personal liberty without a fair trial or hearing.
Such a case can happen if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during// the last two world wars in a limited number of cases.
I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also 'in proceedings affecting other rights, even though they may have 164 come before administrative or quasi judicial tribunals.
Cooper vs The Wadsworth Board of Works (1)was a case under an Act which empowered the District Board to alter or demol ish a house where the builder had neglected to give notice of his intention.
seven days before proceeding to lay or dig the foundation.
Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal.
Byles 5.
in dealing with the matter observed as follows : "I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punish ment as well as the remedy.
That being so, a long course of decisions, beginning with Dr. Bentley 's case, and ending with some very recent cases, establish that although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.
The judgment of Mr. Justice Fortescue, in Dr. Bentley 's case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present.
He says, "The. objection for want of notice can never be got over.
The laws of God and man both give the party an opportunity to make his defence, if he has any.
" In the same case Erie C.J. observed : "It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding.
I do not quite agree with that; . the law, I think, has been applied to many exercises of power which in common under standing would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down." The observations made by Erie C.J. were quoted and applied by Sir Robert Collier in Smith vs The ' Queen (2), and the observations of Lord Campbell in Regina vs The Archbishop of Canterbury (3) were to the. same effect.
(1) ; (2) 3 A.C. 614.
(3) 1E.& E. 559.
165 A similar opinion was expressed by Sir GeorgeJessel in Fisher vs Keane (1), Labouchere vs Earl of Wharncliffe (2), and Russell vs Russell (3).
In the last mentioned case, he observed as follows : "It [Wood vs Woad (4)] contains a very valuable state ment by the Lord Chief Baron as to his view of the mode of administering justice by persons other than Judges who have judicial functions to perform which I should have been very glad to have had before me on both those club cases that I recently heard, namely, the case of Fisher vs Keane and the case of Labouchere vs Earl of Wharncliffe.
The passage I mean is this, referring to a committee: 'They are bound in the exercise of their functions by the rule expressed in the maxim "audi alteram partem," that no man should be condemned to consequences without having the opportunity of making his defence.
This rule is not confined to the con duct of strictly legal ' tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals '.
" This opinion was quoted with approval by Lord Macnaghten in Lapointe vs L 'Association etc.
de Montreal (5).
In that case, on an application for pension by the appellant, who had been obliged to resign, the Board of Directors, without any judicial inquiry into the circumstances, resolved to refuse the claim on the ground that he was obliged to tender his resignation.
This procedure was condemned by Lord Macnaghten as being "contrary to rules of society and above all contrary to the elementary principles of justice.
" These observations of Lord Macnaghten were referred to and relied on in The King vs Tribunal of Appeal under the Hous ing Act, 1919 (6).
In that case, a company proposed to build a picture house and the local authority having prohibited 'the building, the company appealed under the Housing (1) H. Ch. D. 353.
(4) [1874] L.R. 9 exhibit 190.
(2) 13 Oh. D. 346.
(5) (3) (6) 166 (Additional Powers) Act, 1919, which contained a provision that an appeal could in certain cases be properly determined without a hearing and that the appellate Court could dis pense with the hearing and determine the appeal summarily.
It was held that the meaning of rule 7 was that the tribunal on appeal might dispense with an oral hearing, not that they might dispense with a hearing of any kind, and that they were bound to give the appellants a hearing in the sense of an opportunity to make out a case.
The Earl of Reading in delivering the judgment observed: "The principle of law applicable to such a case is well stated by Kelly C.B. in Wood vs Woad in a passage which is cited with approval by Lord Macnaghten in Lapointe vs L ' Association etc.
de Montreal . " In Local Government Board vs Arlidge(1), the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing, Town Planning, &c. Act, without an oral hearing and without being allowed to see the report made by the Board 's Inspector upon 'public local inquiry.
The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the commu nity and whose character was that of an organization with executive functions.
The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of respon sibility of a tribunal whose duty it is to mete out justice.
Commenting upon this case, which is generally regarded as an extreme case, Mr. Gavin Simonds, who afterwards became a member of the House of Lords observes : (1) [1915] A.C.120.
167 "I think you would agree that if the subjectmatter of such proceedings as arc here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous.
" (See C.K. Allen 's "Law and Orders," page 167).
I have particularly referred to cases which were before administrative tribunals, because I have to deal in this case with preventive detention which is said to be an execu tive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed affecting one 's rights without giving one such hearing as may be appropriate to the circum stances of the case.
I have only to add that Halsbury after enumerating the most important liberties which are recog nized in England, such as right of personal freedom, right to freedom of speech, right of public meeting, etc.
, adds : "It seems to me that there should be added to this list the following rights which appear to have become well estab lished the right of the subject to have any case affecting him tried in accordance with the principles of natural justice, particularly the principles that a man may not be a judge in his own cause, and that no party ought to be con demned unheard, or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case . "(Halsbury 's Laws of England, 2nd Edition, volume 6, page 392).
The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well recognized in all modern civilized systems of law and which Halsbury puts on a par with well recognized fundamental rights cannot be regarded as part of the law of this country.
I must confess that I find it difficult to give a negative answer to this question.
The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long the and is also deeply rooted in our ancient history, being the basis of the 168 panchayat system from the earliest times.
The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasiadministrative measures such as are contemplated in sections 107, 108, 109, 110 and 145, is based upon the foundation of this principle, and it is difficult to see that it has not become part of the "law of the land" and does not inhere in our system of law.
If that is so, then "procedure established by law" must include this principle, whatever else it may or may not include.
That the word "law" used in article 21 does not mean only State made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law.
The statute law which regulates the procedure of trials and enquiries in criminal cases does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments.
In a number of cases, it has been held that though there may be no specific provision for notice in the statute, the provision must be read into the law.
I am aware that some Judges have ex pressed a strong dislike for the expression "natural jus tice" on the ground that it is too vague and elastic, but where there are well known principles with no vagueness about them, which all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural jus tice.
That the expression "natural justice" is not unknown to our law is apparent from the fact that the Privy Council has in many criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles of natural justice or departure from the requirements of justice.
[See In re Abraham Mallory Dillet (1), Taba Singh vs King Emperor C), George Gfeller vs The (1) 12 A.C. 459.
(2) I.L.R. 48 Born.
515. 169 King(1), and Bugga and others vs Emperor(2).
In the present case, there is no vagueness about the right claimed which is the right to have one 's guilt or innocence considered by an impartial body and that right must be read into the words of article 21.
Article 21 purports to protect life and person al liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion which, according to Halsbury is on a par with fundamental rights, is to be ignored and excluded.
In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England.
The question envisages something which is not likely to happen, but it does raise a legal problem which can perhaps be met only in tiffs way that if the expression "procedure established by law" simply means any procedure established or enacted by statute it will be difficult to give a negative answer to the question, but ii the word "law" includes what I have endeavoured to show it does, such an answer may be justified.
It seems to me that there is nothing revolutionary in the doctrine that the words "procedure established by law" must include the four principles set out in Professor Willis ' book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them.
These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits.
I have only to add that it has not been seriously controverted that "law" in this article means valid law and "procedure" means certain definite rules of proceeding and not something which is a mere pretence for procedure.
I will now proceed to examine article 22 of the Consti tution which specifically deals with the subject (1) A.I.R. 1943P.C. 211.
(2) A.I.R. 1919P. C. 108.
170 of preventive detention.
The first point to be noted in regard to this article is that it does not exclude the operation of articles 19 and 21, and it must be read subject to those two articles, in the same way as articles 19 and 21 must be read subject to article 22.
The correct position is that article 22 must prevail in so far as there are specific provisions therein regarding preventive detention, but, where there are no such provisions in that article, the operation of articles 19 and 21 cannot be excluded.
The mere fact that different aspects of the same right have been dealt with in three different articles will not make them mutually exclusive except to the extent I have indicated.
I will now proceed to analyse the article and deal with its main provisions.
In my opinion, the main provisions of this article are : (1) that no person can be detained beyond three months without the report of an advisory board [clause 4 (a) ]; (2) that the Parliament may prescribe the circumstances and the class or classes of cases in which a person may be detained for more than three months without obtaining the opinion of an advisory board [clause 7 (a)]; (3) that when a person is preventively detained, the author ity making the order of detention shall communicate to such person the grounds on which the order is made and shall afford him the earliest opportunity of making a representa tion against the order [clause (5) ]; and (4) that the Parliament may prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention [clause 7 (b) ].
The last point does not require any consideration in this case, but the first three points do require considera tion.
In connection with the first point, the question arises as to the exact meaning of the words "such detention" occur ring in the end of clause 4 (a).
Two alternative interpre tations were put forward: (1) "such detention" means preven tive detention; (2) "such detention" means detention for a period longer than three months.
If the first interpreta tion is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply 171 report whether there was sufficient cause for his detention.
According to the other interpretation, the function of the advisory board will be to report to the government whether there is sufficient cause for the person being detained for more than three months.
On the whole, I am inclined to agree with the second interpretation.
Prima facie, it is a seri ous matter to detain a person for a long period (more than three months) without any enquiry or trial.
But article 22 (4) (a) provides that such detention may be ordered on the report of the advisory board.
Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital ques tion before the government, namely, whether prolonged deten tion (detention for more than three ' months) is justified or not.
Under article 22 (4) (a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty ninth day.
It would be some what farcical to provide, that after a man has been detained for eighty nine days, an advisory board is to say whether ' his initial detention was justified.
On the other hand, the determination of the question whether prolonged detention (detention for more than three months)is justified must necessarily involve the determination of the question wheth er the detention was justified at all, and such an interpre tation only can give real meaning and effectiveness to the provision.
The provision being in the nature of a protection or safeguard, I must naturally lean towards the interpreta tion which is favourable to the subject and which is also in accord with the object in view.
The next question which we have to discuss relates to the meaning and scope of article 22 (7)(a) which runs as follows: "Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining 172 the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4).
" The question is what is meant by "circumstances" ' and "class or classes of cases" used in this provision.
This question has arisen because of the way in which these ex pressions appear to have been interpreted and applied in the Act of Parliament with which we are concerned.
As the matter is important and somewhat complicated, I shall try to express my meaning as clearly as possible even at the risk of some repetition, and, in doing so, I must necessarily refer to the impugned Act as well as Lists I and III of the Seventh Schedule of the Constitution, under which Parliament had jurisdiction to enact it.
Item 9 of List I Union List shows that the Parliament has power to legislate on preventive detention for reasons connected with (1) defence, (2) foreign affairs, and (3) security of India.
Under List III Concurrent List the appropriate item is item 3 which shows that law as to preventive detention can be made for reasons connected with (1) the security of the State, (2) the maintenance of public order, and (3) the maintenance of supplies and services essential to the community.
The impugned Act refers to all the subjects mentioned in Lists I and III in regard to which law of preventive detention can be made.
Section 3 (1)of the Act, the substance of which has already been mentioned, is important, and I shall reproduce it verbatim.
"The Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essen tial to the community, or 173 (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
" It will be noticed that all the subjects of legislation concerning preventive detention occurring in item of List I are grouped in sub clause (1) of clause (a).
The subjects in this group are three in number and, for convenience of reference, I shall hereafter refer to them as A, B and C.
In sub .clause (ii), we find grouped two of the matters referred to in item 3 of List III, these being security of the State and the maintenance of public order.
These two subjects, I shall refer to as D and E.
In sub clause (iii), reference has been made to the third matter in item 3 of List III, and I shall refer to this subject as F. With this classification, let us now turn to the Constitution itself.
On reading articles 22 (4) and 22 (7) together, it would be clear that so long as article 22 (4) (a) holds the field and Parliament does not act under clause (7) (a) of article 22, there must be an advisory board in every case, i.e., if the legislation relates to groups A to F, as it does here, there must be an advisory board for all these groups.
Article 22 (7) however practically engrafts an excep tion.
It states in substance that the Parliament may by an Act provide for preventive detention for more than three months without reference to an advisory board, but in such cases it shall be incumbent on the Parliament to prescribe (1) the circumstances and (2) the class or classes of cases in which such course is found to be necessary.
If the case contemplated in clause (4)(a)is the rule and that contem plated 'in clause (7) (a) is the exception, then the circum stances and the class or classes of cases must be of a special or extraordinary nature, so as to take the case out of the rule and bring it within the exception.
It is always 174 possible to draw the line between the normal or ordinary and the abnormal or extraordinary cases.
and this is what, in my opinion, the Parliament was expected to do under clause (7) (a).
I do not think that it was ever intended that Parliament could at its will treat the normal as the abnor mal or 'the rule as the exception.
But this is precisely what has been done in this case All the items on which preventive legislation is possible excepting one, i.e., A to E, have been put within the exception, and only one, F, which relates to maintenance of supplies and services essen tial to the community, has been allowed to remain under the rule.
In other words, it is provided that there shall be an advisory board only for the last category, F, but no provi sion having been made for the other categories, A to E, it may be assumed that the advisory board has been dispensed with in those cases.
The learned Attorney General maintained that it would have been open to the Parliament to dispense with the advisory board even for the category F, and if such a course had been adopted it would not have affected the validity of the Act.
This is undoubtedly a logical position in the sense that it was necessary for him to go as far as this to justify his stand; but, in my opinion, the course adopted by the Parliament in enacting section 12 of the impugned Act is not what is contemplated under article 22 (7) (a) or is permitted by it.
The circumstances to be prescribed must be special and extraordinary circumstances and the class or classes of cases must be of the same na ture.
In my opinion, the Constitution never contemplated that the Parliament should mechanically reproduce all or most of the categories A to F almost verbatim and not apply its mind to decide in what circumstances and in what class or classes of cases the safeguard of an advisory board is to be dispensed with.
I may state here that two views are put forward before us as to how clauses (4) (a) and 7 (a) of article 22 are to be read: (1) that clause (4) (a) lays down the rule that in all cases where detention for more than three months is ordered, it should be done in consultation with and on the report of the advisory 175 board, and clause (7) (a) lays down an exception to this rule by providing that Parliament may pass an Act permitting detention for more than three months without reference to an advisory board; (2) that clauses (4)(a) and (7) (a) are independent clauses making two separate and alternative provisions regarding detention for more than three months, in one case on the report of an advisory board and in other case without reference to an advisory board.
Looking at the substance and not merely at the words, I am inclined to hold that clause (7) (a) practically engrafts an exception on the rule that preventive detention for more than three months can be ordered only on the report of an advisory board, and so far I have proceeded on that footing.
But it seems to me that it will make no difference to the ulti mate conclusion, whichever of the two views we may adopt.
Even on the latter view, it must be recognized that the law which the Constitution enables the Parliament to make under article 22 (7) (a) would be an exceptionally drastic law, and, on the principle that an exceptionally drastic law must be intended for an exceptional situation, every word of what I have said so far must stand.
Clause (7) (a) is only an enabling provision, and it takes care to provide that the Parliament cannot go to the extreme limit to which it is permitted to go without prescribing the class or classes cases and the circumstances to which the extreme law would be applicable.
It follows that the class or classes of cases and the circumstances must be of a special nature to require such legislation.
It was urged that the word "and" which occurs between "circumstances" and "class or classes of cases" is used in a disjunctive sense and should be read as "or," and by way of illustration it was mentioned that when it is said that a person may do this and that, it means that he is at liberty to do either this or that.
I do not think that this argu ment is sound.
I think that clause (7)(a) can be accurately paraphrased somewhat as follows : " Parliament may dispense with an advisory board, but in that case it shall prescribe the circumstances and the class or 23 176 classes of cases . . "If this is the meaning, then ' 'and" must be read as "and" and not as "or"; and "may" must be read as "shall.
" Supposing it was said that Parliament may prescribe the time and place for the doing of a thing, then can it be suggested that both time and place should not be prescribed ? It seems obvious to me that the class or classes of cases must have some reference to the persons to be detained or to their activities and movements or to both. "Circumstances" on the other hand refer to something extra neous, such as surroundings, background, prevailing condi tions, etc., which might prove a fertile field for the dangerous activities of dangerous persons.
Therefore the provision clearly means that both the circumstances and the class or classes of cases (which are two different expres sions with different meanings and connotations and cannot be regarded as synonymous) should be prescribed, and prescrip tion of one without prescribing the other will not be enough.
As I have already stated, such law as can be enact ed under article 22 (7) (a) must involve, by reason of the extreme limit to which it can go, serious consequences to the persons detained.
It will mean (1) prolonged detention, i.e., detention for a period longer than three months, and (2) deprivation of the safeguard of an advisory board.
Hence article 22 (7) (a) which purports to be a protective provi sion will cease to serve its object unless it is given a reasonable interpretation.
To my mind, what it contemplates is that the law in question must not be too general but its scope should be limited by prescribing both the class or classes of cases and the circumstances.
It was contended that the expression "class or classes of cases" is wide enough to enable the Parliament to treat any of the categories mentioned in Lists I and III, items 9 and 3 respectively, (i.e., any of the categories A to F) as constituting a class.
At first sight, it seemed to me to be a plausible argument,, but the more I think about it the more unsound it appears to me.
The chief thing to be remem bered is what I have already emphasized more than once, viz., that a special or extreme type of law must be limited to special classes of cases and circumstances.
Under the 177 Constitution, the Parliament has to prescribe "the class or classes," acting within the limits of the power granted to it under Lists I and III.
The class or classes must be its own prescription and must be so conceived as to justify by their contents the removal of an important safeguard provid ed by the Constitution.
Prescribing is more than a mere mechanical process.
It involves a mental effort to select and adapt the thing prescribed to the object for which it has to be prescribed.
We find here that what is to be prescribed is "class or classes" (and also "circumstances ").
We also find that what the law intends to provide is prolonged detention (by which words I shall hereafter mean detention for more than three months) and elimination of the advisory board.
The class or classes to be prescribed must therefore have a direct bearing on these matters and must be so selected and stated that any one by looking at them may say : " That is the reason why the law has prescribed prolonged detention without reference to an advisory board.
" In other words, there must be something to make the class or classes prescribed fit in with an extreme type of legisla tion some element of exceptional gravity or menace, which cannot be easily and immediately overcome and therefore necessitates prolonged detention; and there must be some thing to show that reference to an advisory board would be an undesirable and cumbersome process and wholly unsuitable for the exceptional situation to which the law applies.
Perhaps a simple illustration may make the position still clearer.
Under the Lists, one of the subjects on which Parliament may make a law of preventive detention is "matter connected with the maintenance of public order.
" The Act simply repeats this phraseology and states in sec tion 3: "with a view to preventing him (the person to be detained) from acting in a manner prejudicial to the main tenance of public order.
" This may be all right for section 3, but section 12 must go further.
An act prejudicial to.
the maintenance of public order may be an ordinary act or it may be an act of special gravity.
I think that article 22 (7)(a) contemplates that the graver and 178 more heinous types of acts falling within the category of acts prejudicial to the maintenance of public order (or other heads) should be prescribed so as to define and cir cumscribe the area of an exceptional piece of legislation.
That some kind of sub classification (if I may be per mitted to use this word) of the categories A to F was possi ble can be illustrated by reference to regulation 18 ]3 of the British Defence of the Realm Regulations.
This regula tion was made under an Act of 1039 which authorized "the making of regulations for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of public safety or the defence of the realm.
" The two matters "public safety" and "defence of the realm" are analogous to some of the heads stated in Lists I and III.
It will be instructive to note that under these two heads, regulation 18 B has set forth several subheads or class or classes of cases in which preventive detention could be ordered.
These classes are much more specific than what we find in section a of the impugned Act and therefore there is less chance of misuse by the executive of the power to order preventive detention.
The classes set out are these : (1) If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associa tions, (2) if the Secretary of State has reasonable cause to believe any person to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts, (3) if the Secretary of State has reasonable cause to believe any person to have been or to be a member of, or to have been or to be active in the furtherance of the objects of, any such organization as is hereinafter mentioned . (a) the organization is subject to foreign influence or control, (b) the persons in control of the organization have or have had associations with, persons concerned in the government of, or sympathies with the system of government of, any Power with which His Majesty is at war, and in either case there is danger of the utilization of the organization for pur poses prejudicial to the public safety, etc., (4) if the Secretary of State has reasonable cause to believe that the recent conduct of any person for the time being in an area or any words recently written or spoken by such a person expressing sympathy with the enemy, indicates or indicate that person is likely to assist the enemy.
I have only to point out that the scope within which preventive detention can be legislat ed upon in this country is much larger than the scope indi cated in the British Act under which Regulation 18 B was framed, and therefore there is more scope for specification of the circumstances as well as the class or classes of cases under the impugned Act.
But all that has been done is that words which occur in the legislative Lists have been taken and transferred into the Act.
What I have stated with regard to class or classes of cases also applies to the circumstances which are also to be prescribed under article 22 (7) (a).
These circumstances are intended to supply the background or setting in which the dangerous activities of dangerous persons might prove specially harmful.
They must be special circumstances which demand a specially drastic measure and under which reference to an advisory board might defeat the very object of preven tive action.
The evident meaning of article 22 (7) (a) seems to be that the picture will not be complete without mentioning both the classes and the circumstances.
There was some discussion at the Bar as to what kind of circumstances might have been specified.
It is not for me to answer this question, but I apprehend that an impending rebellion or war, serious disorder in a particular area such as has induced the Punjab Government to declare certain areas as "disturbed areas," tense communal situation, prevalence of sabotage or widespread political dacoities and a variety of other matters might answer the purpose the Constitution had in view.
I will now try to sum up the result of a somewhat pro tracted discussion into which I had to enter merely to clarify the meaning of a very important provision of the Constitution which has, in my opinion, been completely misunderstood by the framers of the 180 impugned Act.
It appears to me that article 22 deals with three classes of preventive detention : (1) preventive detention for three months; (2) preventive detention for more than three months on the report of the advisory board; and (3) preventive detention for more than three months without reference to the advisory board.
If one has to find some kind of a label for these class es for a clear understanding of the subject, one may label them as "dangerous," "more dangerous" and "most danger ous.
" Now so far as the first two classes are concerned, there is nothing to be prescribed under the Constitution Apparently, the authors of the Constitution were not much concerned about class No. (1), and they thought that in so far as class No. (2) was concerned the provision that a reference to the advisory board was necessary coupled with the provision that detention was not to exceed the maximum period which may be fixed by the Parliament was enough.
But they did take care to make a special provision for class No. (3), and it is extermly important for the liberty of the subject as well as for the smooth working of the Constitu tion that this provision should not be lightly treated but should receive a well considered and reasonable construc tion.
It is elementary that the rigour of a law should correspond to or fit the gravity of the evil or danger it aims at combating, and it is also evident that the law which the Parliament has been permitted to enact under article 22 (7) (a) can, so far as rigour is concerned, go to the I farthest limit.
It follows that the law must have been intended for exceptionally grave situations and exigencies.
Hence the authors of the Constitution have made it necessary that the Parliament should put certain specifications into the Act which it is empowered to pass under article 22 (7) (a), so that by means of these specifications the necessity for enacting so drastic a law should be apparent on the face of it, and its application should be confined to the classes and circumstances specified.
The Act must prescribe (1) "c]ass or classes of cases" which are to have reference to the persons.
181 against whom the law is to operate and their activities and movements and (2) "circumstances" which would bring into prominence the conditions and the backgrounds against which dangerous activities should call for special measures.
By means of such two fold prescription, the sphere for the application of the law will be confined only to a special type of cases it will be less vague, less open to abuse and enable those who have to administer it to determine objec tively when a condition has arisen to justify the use of the power vested in them by the law.
This, in my opinion, is the true meaning and significance of article 22 (7) (a) and any attempt to whittle it down will lead to deplorable results.
Having stated my views as to the construction of article 22 (7) (a), I propose to consider at once whether section 12 of the impugned Act conforms to the requirements of that provision.
In my opinion, it does not, because it fails to prescribe either the circumstances or the class or classes of cases in the manner required by the Constitution.
It does not prescribe circumstances at all, and, though it purports to prescribe the class or classes, it does so in a manner showing that the true meaning of the provision from which the Parliament derived its power has not been grasped.
I have sufficiently dwelt on this part of the case and shall not repeat what I have already said.
But I must point out that even if it be assumed that the view advanced by the learned Attorney General is correct and it was within the competence of Parliament to treat any of the categories mentioned in items 9 and 3 of Lists I and III as constitut ing a class and to include it without any qualification or change, the impugned section cannot be saved on account of a two fold error : .
(1) the word "and" which links "class or classes" with "circumstances" in article 22 (7) (a) has been wrongly construed to mean "or ;" and (2) the distinction between "circumstances" and "class or classes" has been completely ignored and they are used as interchangeable terms.
The first error appears to me to be quite a serious one, because though the Constitution lays down two require ments and insists 182 on the prescription of circumstances as well as class or classes, it has been assumed in enacting section 12 that prescription of one of them only will be enough.
The other error is still more serious and goes to the root of the matter.
There can be no doubt that circumstances and class or classes are two different expressions and have different meanings, but the Act proceeds on the assumption that cir cumstances are identical with class or classes, as will appear from the words "any person detained in any of the following classes of cases or under any of the following circumstances" used in the section.
I have already shown how important the specification of circumstances is in legislation of such an extreme and drastic character.
There fore, to confuse "classes" with "circumstances" and to omit to mention "circumstances" at all are in my opinion grave errors.
There can, in my opinion, be no escape from the conclusion that section 12 of the Act by which a most impor tant protection or safeguard conferred on the subject by the Constitution has been taken away, is not a valid provision, since it contravenes the very provision in the Constitution under which the Parliament derived its competence to enact it.
I will now briefly deal with article 22 (5) which makes it incumbent on the authority ordering preventive deten tion to communicate to the person detained the grounds on which the order has been made and to give him the earliest opportunity of making a representation against the order.
It must be remembered that this provision is intended to afford protection to and be a safeguard in favour of a detained person, and it cannot be read as limiting any rights which he has under the law or any other provisions of the Consti tution.
If article 21 guarantees that before a person is deprived of his liberty he must be allowed an opportunity of establishing his innocence before an impartial tribunal, that right still remains.
In point of fact, there is no express exclusion of that right in the Constitution and no prohibition against constituting an impartial tribunal.
On the other hand, the right to make a representation which has 183 been granted under the Constitution, must carry with it the right to the representation being properly considered by an impartial person or persons.
There must therefore be some machinery for properly examining the cases of the detenus and coming to the conclusion that they have not been de tained without reason.
If this right had been expressly taken away by the Constitution, there would have been an end of the matter, but it has not been expressly taken away, and I am not prepared to read any implicit deprivation of such a valuable right.
The mere reference to an advisory board in article 22 (4) (a) does not, if my interpretation of the provision is correct, exclude the constitution of a proper machinery for the purpose of examining the cases of detenus on merits.
The constitution of an advisory board for the purpose of reporting whether a person should be detained for more than three months or not is a very different thing from constituting a board for the purpose of reporting whether a man should be detained for a single day.
In the view I take, all that Parliament could do under clause (7) (a) of article 22 was to dispense with an advisory board for the purpose contemplated in clause (4) (a) of that article and not to dispense with the proper machinery, by whichever name it may be called, for the purpose of examining the merits of the case of a detained person.
It was argued that article 22 is a code by itself and the whole law of preventive detention is to be found within its four corners.
I cannot however easily subscribe to this sweeping statement.
The article does provide for some mat ters of procedure, but it does not exhaustively provide for them.
It is said that it provides for notice, an opportuni ty to the detenu to represent his case, an advisory board which may deal with his case, and for the maximum period beyond which a person cannot be detained.
These points have undoubtedly been touched, but it cannot be said that they have been exhaustively treated.
The right to represent is given, but it is left to the legislature to provide the machinery for dealing with the representation.
The advisory board has been mentioned, but 24 184 it is only to safeguard detention for a period longer than three months.
There is ample latitude still left to the Parliament, and if the Parliament makes use of that latitude unreasonably, article 19 (5) may enable the Court to see whether it has transgressed the limits of reasonableness.
I will now proceed to deal with the Act in the light of the conclusions I have arrived at.
So far as section 3 of the Act is concerned, it was contended that it is most unreasonable, because it throws a citizen at the mercy of certain authorities, who may at their own will order his detention and into whose minds we cannot probe to see wheth er there is any foundation for the subjective satisfaction upon which their action is to rest.
I am however unable to accept this argument.
The administrative authorities who have to discharge their responsibilities have to come to quick decisions and must necessarily be left to act on their own judgment.
This principle is by no means unreasonable and it underlies all the preventive or quasi administrative measures which are to be found in the Criminal Procedure Code.
Under section 107 of that code, it is left to the discretion of the magistrate concerned to determine whether in his opinion there is sufficient ground for proceeding against any person who is likely to occasion a breach of the peace.
Under section 145 also, his initial action depends upon his personal satisfaction.
Therefore I do not find anything wrong or unconstitutional in section 3 of the Act.
But I must point out that it is a reasonable provision only for the first step, i.e., for arrest and initial detention, and must be followed by some procedure for testing the so called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
I do not also find anything radically wrong in section 7 of the Act, which makes it incumbent on the authority con cerned to communicate to a detenu the grounds on which the order has been made and to 185 afford him the earliest opportunity of making a representa tion against the order.
Section 10 which provides that the advisory board shall make its report within ten weeks from the date of the detention order is in conformity with arti cle 22 (4) (a) of the Constitution, and the only comment which one can make is that Parliament was not obliged to fix such a long period for the submission of a report and could have made it shorter in ordinary cases.
The real sections which appear to me to offend the Constitution are sections 12 and 14.
I have already dealt with the principal objec tion to section 12, while discussing the provisions of article 22 (7) (a) and I am of the opinion that section 12 does not conform to the provisions of the Constitution and is therefore ultra vires.
I also think that even if it be held that it technically complies with the requirements of article 22 (7) (a), Parliament has acted unreasonably in exercising its discretionary power without applying its mind to essential matters and thus depriving the detenus of the safeguard of an advisory board which the Constitution has provided in normal cases.
So far as section 14 is con cerned, all my colleagues have held it to be ultra vires, and, as I agree with the views expressed by them, I do not wish to encumber my judgment by repeating in my own words what has been said so clearly and so well by them.
Section 14 may be severable from the other provi sions of the Act and it may not be possible to grant any relief to the petitioner on the ground that section 14 is invalid.
But I think that section 12 goes to the very root of the legislation inasmuch as it deprives a detenu of an essential safeguard, and in my opinion the petitioner is entitled to a writ of habeas corpus on the ground that an essential provision of the Constitution has not been com plied with.
This writ will of course be without prejudice to any action which the authorities may have taken or may hereafter take against the petitioner under the penal law I have to add this qualification because there were allega tions of his being involved in some criminal cases but the actual facts were not clearly brought out before us.
186 I have only to add a few concluding remarks to my judg ment.
In studying the provisions of the impugned Act, I could not help instituting a comparison in my own mind between it and similar legislation in England during the last two world wars.
I could not also help noticing that the impugned Act purports to be a peacetime Act, whereas the legislation to which I have referred was enacted during the war.
During the first war as well as the second, a number of persons were detained and a number of cases were brought to Court in connection with their detention, but the two lead ing cases which will be quoted again and again are Rex vs Halliday (1) and Liversidge vs Sir John Anderson(2).
We are aware that in America certain standards which do not conform to ordinary and normal law have been applied by the Judges during the period of the war and sometimes they are compen dionsly referred to as being included in "war power.
" The two English cases to which I have referred also illustrate the same principle, as will appear from two short extracts which I wish to reproduce.
In Rex vs Halliday (3), Lord Atkinson observed as follows : " However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely, national success in the ' war, or escape from national plunder or enslavement.
" In Liversidge vs Sir John Anderson (4), Lord Macmillan struck the same note in these words : "The liberty which we so 'justly extol is itself the gift of the law and as Magna Charta recognizes may by the law be forfeited or abridged.
At a time when it is the undoubted law of the land that a citizen may by conscription or requisition be compelled to give up his life and all that he possesses for his country 's cause it may well be no matter for surprise that there should be confided to the Secretary of State a discretionary power of enforcing the relatively mild precaution of detention.
" (1) [1917] A.C.260.
(3) ; 271. ; (4) ; at p. 257. 187 These passages represent the majority view in the two cases, but the very elaborate judgments of Lord Shaw in Rex vs Halliday and that of Lord Atkin in Liversidge vs Sir John Anderson show that there.
was room for difference of opinion as well as for a more dispassionate treatment of the case and the points involved in it.
It is difficult to say that there is not a good substratum of sound law in the celebrat ed dictum of Lord Atkin that even amidst the clash of arms the laws are not silent and that they speak the same lan guage in war as in peace.
However that may be, what I find is that in the regulations made in England during the first war as well as the second war there was an elaborate provi sion for an advisory board in all cases without any excep tion, which provided a wartime safeguard for persons de prived of their liberty.
There was also a provision in the Act of 1939 that the Secretary of State should report at least once in every month as to the action taken under the regulation including the number of persons detained under orders made thereunder.
I find that these reports were printed and made available to the public.
I also find that the Secretary of State stated in the House of Commons on the 28th January, 1943, that the general order would be to allow British subjects detained under the Regulation to have consultations with their legal advisers out of the hearing of an officer.
This order applied to consultations with barristers and solicitors but not to cases where solicitors sent to interview a detained person a clerk who was not an officer of the High Court.
The impugned Act suffers in com parison, on account of want of such provisions, though, so far as I can see, no great harm was likely to have been caused by setting up a machinery composed of either adminis trative or judicial authorities for examining the cases of detained persons so as to satisfy the essentials of fairness and justice.
The Act also suffers in comparison with some of the later Provincial Acts in which the safeguard of an advisory board is , expressly provided for.
I find that there is a provision in section 12 (2) of the Act for the review of the cases of detenus after six months, but this is quite different 188 from examining the merits of the case.
The object of such a review is obviously to find out whether by reason of any change in the circumstances, a review of the original order is required.
I hope that in pointing out the shortcomings of the Act I will not be misunderstood.
I am aware that both in Eng land and in America and also in many other countries, there has been a reorientation of the old notions of individual freedom which is gradually yielding to social control in many matters.
I also realize that those who run the State have very onerous responsibilities, and it is not correct to say that emergent conditions have altogether disappeared from this country.
Granting then that private rights must often be subordinated to the public good, is it not essen tial in a free community to strike a just balance in the matter ? That a person should be deprived of his personal liberty without a trial is a serious matter, but the needs of society may demand it and the individual may often have to yield to those needs.
Still the balance between the maintenance of individual rights and public good can be struck only if the person who is deprived of his liberty is allowed a fair chance to establish his innocence, and I do not see how the establishment of an appropriate machinery giving him such a chance can be an impediment to good and just government.
PATANJALI SASTRI J. This is an application under arti cle 32 of the Constitution of India for releasing the petitioner from detention in jail without trial under directions purporting to be issued by the Government of Madras under the , and it has the distinction of being the first application invoking the guaranteed protection of this Court as the guardian of Fundamental Rights against alleged infringement of the petitioner 's right to freedom of movement.
As the case involved issues of great public importance and breaking of new ground it was argued with thoroughness and ability on both sides, reference being made to more or less analogous provisions of the Constitutions of 189 other countries and in particular the Constitution of the United States of America.
The petitioner had been under detention previously under orders passed by the said Government under the Madras Main tenance of Public Order Act, 1947, but as the validity of that Act and all other similar local public safety enact ments had been questioned in some of the High Courts in India after the new Constitution came into force, the Par liament enacted a comprehensive measure called the Preven tive Detention Act, 1950, (hereinafter referred to as the impugned Act) extending to the whole of India with a certain exception not material here.
The Act came into force on 25th February 1950, and, on the 27th February, the Government of Madras, in purported exercise of the powers conferred by the impugned Act and in supersession of earlier orders, directed the detention of the petitioner, and the order was served on him on 1st March.
The petitioner contends that the impugned Act and in particular sections 3, 7, 10, 11, 19,, 13 and 14 thereof take away or abridge the fundamental right to freedom of movement in contravention of article 13 (2) of the Constitu tion and is, therefore, void as declared therein.
Article 13 is one of a fasciculus of articles which are comprised in part III of the Indian Constitution headed "Fundamental Rights.
" This Part forms a new feature of the Constitution and is the Indian "Bill of Rights.
" It is modelled on the first ten Amendments of the American Con stitution which declare the fundamental rights of the American citizen.
Article 12, which is the first article in this Part, defines "the State" as including the Governments and Legislatures of the Union and the States as well as all local and other authorities against which the fundamental rights are enforceable, and article 13 (1) declares that all existing laws inconsistent with the provisions of Part III shall, to the extent of the inconsistency, be void.
Clause (2) of the article, on which the petitioner 's con tention is primarily founded reads as follows: 190 "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" As the constitutional inhibition against deprivation or abridgement relates only to "the rights conferred by this Part," it is necessary first to ascertain the nature and extent of the right which, according to the petitioner, Part III has conferred on him, and, secondly, to determine wheth er the right so ascertained has been taken away or abridged by the impugned Act or by any of its provisions.
The first question turns on the proper interpretation of the relevant articles of the Constitution, and the second involves the consideration of the provisions of the impugned Act.
Mr. Nambiar appearing for the petitioner advanced three main lines of argument.
In the first place, the right to move freely throughout the territory of India referred to in article 19 (1)(d) is of the very essence of personal liber ty, and inasmuch as the detention authorised by the impugned Act was not a "reasonable restriction" which Parliament could validly impose on such right under clause (5) of the article, the impugned Act is void.
Alternatively, the petitioner had a fundamental right under article 21 not to be deprived of his personal liberty except according to procedure established by law, and the impugned Act by autho rising detention otherwise than in accordance with proper procedure took away that right and was therefore void.
And, lastly, the provisions of the impugned Act already re ferred to were ultra vires and inoperative as Parliament in enacting them has overstepped the ]imitations placed on its legislative power by article 22 clauses (4) to (7).
Accordingly, the first question for consideration is whether article 19 (1) (d) and (5) is applicable to the present case.
"Liberty," says John Stuart Mill, "consists in doing what one desires.
But the liberty ' of the individual must be thus far limited he must not make him self a nuisance to others.
" Man, as a rational being, desires to do many things, but in a civil society his de sires have to be controlled, regulated 191 and reconciled with the exercise of similar desires.
by other individuals.
Liberty has, therefore, to be limited in order to be effectively possessed.
Accordingly, article 19, while guaranteeing some of the most valued phases or elements of liberty to every citizen as civil1 rights, pro vides for their regulation for the common good by the State imposing certain "restrictions" on their exercise.
The power of locomotion is no doubt an essential element of personal liberty which means freedom from bodily restraint, and detention in jail is a drastic invasion of that liberty.
But the question is: Does article 19, in its setting in Part III of the Constitution, deal with the deprivation of per sonal liberty in the sense of incarceration ? Sub clause (d) of clause (1) does not refer to freedom of movement simplic iter but guarantees the right to move freely "throughout the territory of India." Sub clause (e) similarly guaran tees the right to reside and settle in any part of the territory of India.
And clause (5) authorises the imposi tion of "reasonable restrictions" on these rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
Reading these provisions together, it is reasonably clear that they were designed primarily to emphasise the factual unity of the territory of India and to secure the right of a free citizen to move from one place in India to another and to reside and settle in any part of India unhampered by any barriers which nar row minded provincialism may seek to interpose.
The use of the word "restrictions" in the various sub clauses seems to imply, in the context, that the rights guaranteed by the article are still capable of being exercised, and to exclude the idea of incarceration though the words "restriction" and "deprivation" are sometimes used as interchangeable terms, as restriction may reach a point where it may well amount to deprivation.
Read as a whole and viewed in its setting among the group of provisions (articles 19 22) relating to "Right to Freedom," article 19 seems to my mind to pre suppose that the citizen to whom the possession of these fundamental rights is secured retains the substratum 192 of personal freedom on which alone the enjoyment of these rights necessarily rests.
It was said that subclause (f) would militate against this view, as the enjoyment of the right "to acquire, hold and dispose of property" does not depend upon the owner retaining his personal freedom.
This assumption is obviously wrong as regards moveable proper ties, and even as regards immoveables he could not acquire or dispose of them from behind the prison bars; nor could he "hold" them in the sense of exercising rights of possession and control over them which is what the word seems to mean in the context.
But where, as a penalty for committing a crime or otherwise, the citizen is lawfully deprived of his freedom, there could no longer be any ques tion of his exercising or enforcing the rights referred to in clause (1).
Deprivation of personal liberty in such a situation is not, in my opinion, within the purview of article 19 at all but is dealt with by the succeeding arti cles 20 and 21.
In other words, article 19 guarantees to the citizens the enjoyment of certain civil liberties while they are free, while articles 20 22 secure to all persons citizens and non citizens certain constitutional guarantees in regard to punishment and prevention of crime.
Different criteria are provided by which to measure legisla tive judgments in the two fields, and a construction which would bring within article 19 imprisonment in punishment of a crime committed or in prevention of a crime threatened would, as it seems to me, make a reductio ad absurdum of that provision.
If imprisonment were to be regarded as a "restriction" of the right mentioned in article 19 (1)(d), it would equally be a restriction on the rights mentioned by the other subclauses of clause (1), with the result that all penal laws providing for imprisonment as a mode of punish ment would have to run the gauntlet of clauses (2) to (6) before their validity could be accepted.
For instance,the law which imprisons for theft would, on that view, fall to be justified under clause (2) as a law sanctioning restric tion of freedom of speech and expression.
Indeed, a Divi sion Bench of the Allahabad High Court,in a recent unreport ed decision brought to our notice 193 applied the test of undermining the security of the State or tending to overthrow it in determining the validity or otherwise of the impugned Act.
The learned Judges construed article 19 as covering cases of deprivation of personal liberty and held, logically enough, that inasmuch as the impugned Act, by authorising preventive detention, infringed the right to freedom of speech and expression, its validity should be judged by the reservations in clause (2), and, as it failed to stand that test, it was unconstitutional and void.
Mr. Nambiar did not seek to go so far.
He drew a dis tinction between the right conferred by sub clause (d) and those conferred by the other sub clauses.
He urged, refer ring to Blackstone 's Commentaries, that personal liberty consisted "in moving one 's person to whatever place one 's inclination might direct," and that any law which de prived a person of such power of locomotion was a direct invasion of the right mentioned in sub clause (d), whereas it inter fered only indirectly and consequentially with the rights mentioned in the other sub Clauses.
There is no substance in the distinction suggested.
It would be illogi cal, in construing article 19, to attribute to one of the sub clauses a scope and effect totally different from the scope and effect of the others or to draw a distinc . tion between one right and another in the group.
All the rights mentioned in clause (1) are equally essential elements in the liberty of the individual in any civilised and democrat ic community, and imprison, ment operates as an extinction of all of them alike.
It cannot, therefore, be said that deprivation of personal liberty is an infringement of the right conferred by sub clause (d) alone but not of the others.
The learned Judges of the Allahabad High Court realised this and were perfectly logical in holding that the constitutional validity of a law providing for deprivation of personal liberty or imprisonment must be judged by the tests laid down not only in clause (5) of article 19 but also in the other clauses including clause (2), though their major premise that deprivation of personal liberty was a "restriction" within the meaning of article 19 is, in my judgment, erroneous.
194 It was said that preventive detention being a drasic re striction of the right to move freely was, in its pith and substance," within article 19 (1) (d) read with clause (5) and not within article 21 which deals with crime and its punishment and prevention.
There is no room here, in my opinion, for the application of the rule of "pith and sub stance.
" As pointed out by the Privy Council in Prafulla Kumar Mukherjee vs The Bank of Commerce Ltd., Khulna (1), approving the observations of the Federal Court in Subrah manyam Chettiar vs Muttuswamy Goundan (2), the rule was evolved by the Board for determining whether an impugned statute was, in its true character, legislation with respect to matters within the jurisdiction of one legislature or another in a scheme of divided legislative power.
No such question arises here.
What the Court has to ascertain is the true scope and meaning of article 19 in the context of Part III of the Constitution, in order to decide whether depriva tion of personal liberty falls within that article, and the pith and substance rule will be more misleading than helpful in the decision of that issue.
Article 19, as I have already indicated, guarantees protection for the more important civil liberties of citizens who are in the enjoyment of their freedom, while at the same time laying down the re strictions which the legislature may properly impose on the exercise of such rights, and it has nothing to do with deprivation of personal liberty or imprisonment which is dealt with by the succeeding three articles.
There is also another consideration which points to the same conclusion.
The ]Drafting Committee of the Constituent Assembly, to whose Report reference was freely made by both sides during the argument, recommended "that the word liber ty should be qualified by the insertion of the word 'person al ' before it, for otherwise it might be construed very widely so as to include even the freedoms already dealt with in article 13" (now article 19).
The acceptance of this suggestion shows that whatever may be the generally accepted (1) 74 I.A. 23.
(2) [1940] F.C.E. 188.
195 connotation of the expression "personal liberty," it was used in article 21 in a sense which excludes the freedoms dealt with in article 19, that is to say, personal liberty in the context of Part III of the Constitution is something distinct from the freedom to move freely throughout the territory of India.
It was further submitted that article 19 declared the substantive rights of personal liberty while article 21 provided the procedural safeguard against their deprivation.
This view of the correlation between the two articles has found favour with some of the Judges in the High Courts which have had occasion to consider the constitutional validity of the impugned Act.
It is, however, to be ob served that article 19 confers the rights therein specified only on the citizens of India, while article 21 extends the protection of life and personal liberty to all persons citizens and noncitizens alike.
Thus, the two articles do not operate in a conterminous field, and this is one reason for rejecting the correlation suggested.
Again, if article 21 is to be understood as providing only proce dural safeguards, where is the substantive right to personal liberty of non citizens to be found in the Constitution ? Are they denied such right altogether ? If they are to have no right of personal liberty, why is the proce dural safeguard in article 21 exended to them ? And where is that most fundamental right of all, the right to life, provided for in the Constitution ? The truth is that arti cle 21, like its American prototype in the Fifth and Four teenth Amendments of the Constitution of the United States, presents an example of the fusion of procedural and substan tive rights in the same provision.
The right to live, though the most fundamental of all, is also one of the most difficult to define and its protection generally takes the form of a declaration that no person shall be deprived of it save by due process of law or by authority of law.
"Process" or "procedure" in this context connotes both the act and the manner of proceeding to take away a man 's life or per sonal liberty.
And the first and essential step in a proce dure established by law for such deprivation must be a law made by a competent legislature 196 Authorising such deprivation.
This brings me to the consid eration of articles 21 and 22 to which was deroted the greater part of the debate at the Bar.
These articles run as follows: "21.
No person shall be deprived of his life or person al liberty except according to procedure established by law.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses '(1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who, are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall ' autho rise the detention of any person beyond the maximum period prescribed by any law made by parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
197 (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4)." Mr. Nambiar urged that the word "law" in article 21 should be understood, not in the sense of an enactment but as signifying the immutable and universal principles of natural justice the jus naturale of the civil law and that the expression "procedure established by law" meant the same thing as that famous phrase "due process of law" in the American Constitution in its procedural aspect.
Numerous American decisions were cited to show that the phrase implied the basic requirements of (1) an objective and ascertainable standard of conduct to which it is possi ble to conform, (2) notice to the party of the accusation against him, (3) a reasonable opportunity for him to estab lish his innocence, and (4) an impartial tribunal capable of giving an unbiased judgment Mr. Nambiar conceded that these requirements might have to be modified or adapted to suit the nature of the particular proceeding and the object it had in 198 view, as for instance, in a case of preventive detention, previous notice, which might result in the person concerned going underground might be dispensed with Learned counsel insisted that these requirements, being the very core of the principles of natural justice which transcended all State made laws, must be substantially complied with by any law governing the process of deprivation of life or personal liberty, subject, of course, to any express provision in the Constitution sanctioning their relaxation or dispensation in any case or class of cases.
He also appealed to the Pream ble of the Constitution as the guiding star in its interpre tation to support his thesis that, in view of the democratic Constitution which the people of India have purported to give themselves guaranteeing to the citizens certain funda mental rights which are justiciabke, the provisions of Part III must be construed as being paramount to the legislative will, as otherwise the socalled fundamental right to life and personal liberty would have no protection against legis lative action, and article 13 12) would be rendered nugato ry.
There can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Pream ble, adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, socalled, I apprehend, because they have been re tained by the people and made paramount to the delegated powers, as in the American model.
Madison (who played a prominent part in framing the First Amendment of the Ameri can Constitution) pointing out the distinction, due to historical reasons, between the American and the British ways of securing "the great and essential rights of the people," observed "Here they are secured not by laws para mount to prerogative but by Constitutions paramount to laws:" Report on the Virginia Resolutions, quoted in Near vs Minnesota (1).
(1) ; 109 This has been translated into positive law in Part III of the Indian Constitution, and I agree that in construing these provisions the high purpose and spirit of the Preamble as well as the constitutional significance of a Declaration of Fundamental Rights should be borne in mind.
This, howev er, is not to say that the language of the provisions should be stretched to square with this or that constitutional theory in disregard of the cardinal rule of interpretation of any enactment, constitutional or other, that its spirit, no less than its intendment should be collected primarily from the natural meaning of the words used.
Giving full effect to these principles, however, I am unable to agree that the term "law" in article 21 means the immutable and universal principles of natural justice. "Procedure established by law" must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as "the immutable and universal principles of natural justice.
" In my opinion, "law" in article 21 means "positive or State made law." No doubt, the American Judges have adopted the other connotation in their interpretation of the due process clause in the Fifth and Fourteenth Amendments of the Ameri can Constitution (" Nor shall any person be deprived of life, liberty or property without due process of law ").
But that clause has an evolutionary history behind it.
The phrase has been traced back to 28 Edw.
III Ch. 3, and Coke in his Institutes identified the term with the expression "the law of the land" in the Great Charter of John.
Even in England where the legislative omnipotence of Parliament is now firmly established, Coke understood these terms as implying an inherent limitation on all legislation,and ruled in Dr. Bonham 's Case (1) that "the common law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common right and reason." Though this doctrine was later discarded in England as being "a warning (1) (a).
26 200 rather than an authority to be followed" [per Willes J. in Lee vs Dude and Torrington Ry.
(1)] it gained ground m America, at first as a weapon in the hands of the Revolu tionists with which to resist the laws of Parliament, and later as an instrument in the hands of the Judges for estab lishing the supremacy of the judiciary [see Calder vs Bull (" ')].
In the latter half of the 19th century, this doc trine of a transcendental common law or natural justice was absorbed in the connotation of the phrase "due process of law" occurring in the Fifth and Fourteenth Amendments.
By laying emphasis on the word" due," interpreting "law" as the fundamental principles of natural justice and giving the words "liberty" and "property" their widest meaning, the Judges have made the due process clause into a general restriction on all legislative power.
And when that power was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of "police power," i.e., the power of Government to regulate private rights in public interest, was evolved to counteract such excesses.
All this has been criticised as introducing great uncertainty in the state of the law in that country, for no one could be sure how due process of law would affect a particular enactment.
A century after the phrase had been the subject of judicial interpretation one learned Judge observed in 1877 that it was incapable of precise definition and that its intent and application could only be ascer tained by "the gradual process of inclusion and exclusion" [Davidson vs New Orleans (3)]and, as recently as 1948, another Judge referred to the difficulty of "giving defi niteness to the vague contours of due process" and "of spinning judgment upon State action out of that gossamer concept:" Haley vs State of Ohio (4).
It is not a matter for surprise, therefore, that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression "except according to procedure (1) , 582.
(3) 96 U.S. 97. ; (4) 332 U.S. 596.
201 established by law" taken from the Japanese Constitution, 1946, for the words "without due process of law" which occurred in the original draft, "as the former is more specific.
" In their Report the Committee added that they have "attempted to make these rights (fundamental rights) and the. limitations to which they must necessarily be subject as definite as possible, since the Courts may have to pronounce upon them" (para. 5).
In the face of all these considerations, it is difficult to accept the suggestion that "law" in.
article 21 stands for the jus naturale of the civil law, and that the phrase "according to procedure established by law" is equivalent to due process of law in its procedural aspect, for that would have the effect of introducing into our Constitution those "subtle and elusive criteria" implied in that phrase which it was the deliberate purpose of the framers of our Constitution to avoid.
On the other hand, the interpretation suggested by the Attorney General on behalf of the intervener that the ex pression means nothing more than procedure prescribed by any law made by a competent legislature is hardly more accept able.
"Established" according to him, means prescribed, and if Parliament or the Legislature of a State enacted a proce dure, however novel and ineffective for affording the ac cused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty.
He submitted that the Constituent Assem bly definitely rejected the doctrine of judicial supremacy When it rejected the phrase "due process of law" and made the legislative will unchallengeable, provided only "some procedure" was laid down.
The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase "procedure established by law" must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe.
Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining, as he put it, the "his torical background.
" A speech 202 made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill.
Nor is it reasonable to assume that the minds of all those legislators were in accord.
The Court could only search for the objec tive intent of the legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles etc.
I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate on article 15 (now article 21).
The main difficulty I feel in accepting the construction suggested by the Attorney General is that it completely stultifies article 13 (2) and, indeed, the very conception of a fundamental right.
It is of the essence of that con ception that it is protected by the fundamental law of the Constitution against infringement by ordinary legislation.
It is not correct to say that the Constitution has adopted the doctrine of Parliamentary supremacy.
So far, at any rate, as Part III is concerned, the Constitution, as I have already observed, has accepted the American view of funda mental rights.
The provisions of articles 13 and 32 make this reasonably clear.
Could it then have been the inten tion of the framers of the Constitution that the most impor tant fundamental rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if "established" were to mean merely "pre scribed ?" In other words, as an American Judge said in a similar context, does the constitutional prohibition in article 13 (2) amount to no more than "You shall not take away life or personal freedom unless you choose to take it away," which is mere verbiage.
It is no sound answer to say that, if article 21 conferred no right immune from legisla tive invasion, there would be no question of contravening article 13 (2).
The argument seems, to my mind, to beg the question, for it assumes that the article affords no such immunity.
It is said that article 21 affords no protection against competent legislative action in 203 the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonable ness or otherwise, of such laws, as in the case of the rights enumerated in article 19.
Even assuming it to be so the construction of the learned Attorney.
General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the article was un doubtedly designed to afford.
It was argued that "law" in article 31 which provides that no person shall be deprived of his property "save by authority of law" must mean enacted law and that if a person 's property could be taken away by legislative action, his right to life and personal liberty need not enjoy any greater immunity.
The analogy is mis leading.
Clause (2) of article 31 provides for payment of compensation and that right is justiciable except in the two cases mentioned in clauses (4) and (6) which are of a tran sitory character.
The constitutional safeguard of the right to property in the said article is, therefore, not so illu sory or ineffective as clause (1) by itself might make it appear, even assuming that" law" there means ordinary legis lation.
Much reliance was placed on the Irish case The King vs The Military Governor of Hare Park Camp (1) where the Court held that the term "law" in article 6 of the Irish Constitu tion of 1922 which provides that "the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law" meant a law enacted by the Parliament, and that therefore the Public Safety Act of 1924 did not contravene the Constitution.
The Court followed The King vs Halliday(2) where the House of Lords by a majority held that the Defence of the Realm (Consolidation) Act, 1914, and the Regulations framed thereunder did not infringe upon the Habeas Corpus Acts and the Magna Carta "for the simple reason that the Act and the Orders become part of the law of the land.
" But that was because, as Lord Dunedin pointed out "the British Constitution has entrusted to the two Houses of parliament subject to the assent (1) [19241 2 I.R. 104.
(2) [1917] A.C. 260.
204 of the King, an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body," whereas the Irish Constitution restricted the legislative powers of the Irish Parliament by a formal declaration of funda mental rights and by providing for a judicial review of legislation in contravention of the Constitution (article 65).
This radical distinction was overlooked.
The Attorney General further submitted that, even on his interpretation, article 21 would be a protection against violation of the rights by the executive and by individuals, an d that would be sufficient justification for the article ranking as a fundamental safeguard.
There is no substance in the suggestion.
As pointed out in Eshugbayi Eleko vs Gov ernment of Nigeria (Officer Administering) (1), the execu tive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed.
Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the latter.
"In accordance with British jurisprudence" said Lord Atkin in the case cited above, "no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.
" As for protection against individuals, it is a misconception to think that constitutional safeguards are directed against individuals.
They are as a rule directed against the State and its organs.
Protection against violation of the rights by individuals must be sought in the ordinary law.
It is therefore difficult to accept the suggestion that article 21 was designed to afford protection only against infringements by the executive or individuals.
On the other hand,the insertion of a declaration of Fundamental Rights in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (article 13) and the provision of a constitutional sanction for the enforcement of such prohibition by means of a judicial review (article 32) is, in my (1) ; 205 opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State made laws.
After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem.
In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word "established" which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. "Procedure estab lished by law" may well be taken to mean what the Privy Council referred to in King Emperor vs Benoari Lal Sharma (1) as "the ordinary and well established criminal proce dure," that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the coun try.
Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor General and trial by ordinary Courts under the Criminal Procedure Code.
It can be no objection to this view that the Code prescribes no single and uniform proce dure for all types of cases but provides varying procedures for different classes of cases.
Certain basic principles emerge as the constant factors common to all those proce dures, and they form the core of the procedure established by law.
I realise that even on this view, the life and liberty of the individual will not be immune from legisla tive interference, for a competent legislature may change the procedure so as to whittle down the protection if so minded.
But, in the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code.
So long as such a change is not effected, the protection under article 21 would be available.
The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under article 21 as interpreted in the three ways (1) ,175.
206 referred to above will perhaps be best illustrated by a concrete example.
Suppose that article 22 (1) was not there and Parliament passed an Act, as a temporary measure, taking away in certain cases the right of an accused person to be defended by a legal practitioner.
According to the petition er 's learned counsel the Act would be void as being contrary to the immutable principles of natural justice embodied in article 21, whereas on the construction contended for by the Attorney General, the Act would be perfectly valid, while, on the view I have indicated above, the Act would be bad, but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abro gating section 340 (1)of the Code, article 21 would be powerless to protect against such legislative action.
But in a free democratic republic such a drastic change in the normal law of procedure, though theoretically possi ble, would be difficult to bring about, and that practical difficulty will be the measure of the protection afforded by article 21.
It was said that the safeguards provided in clauses (1) and (2) of article 22 are more or less covered by the provisions of the Criminal Procedure ' Code, and this overlapping would have been avoided if article 21 were intended to bear the construction as indicated above.
The argument overlooks that, while the provisions of the Code would be liable to alteration by competent legislative action, the safeguards in clauses (1)and (2) of article 22, being constitutional, could not be similarly dealt with: and this sufficiently explains why those safeguards find a place in the Constitution.
The only alternative to the construction I have indi cated above, if a constitutional transgression is to be avoided, would be to interpret the reference to "law" as implying a constitutional amendment pro tanto, for it is only a law enacted by the procedure provided for such amend ment (article 368) that could modify or override a fundamen tal right without contravening article 13 (2).
207 The question next arises as to how far the protection under article 21, such as it has been found to be, is avail able to persons under preventive detention.
The learned Attorney General contended that article 21 did not apply to preventive detention at all, as article 22 clauses (4) to (7) formed a complete code of constitutional safeguards in respect of preventive detention,and, provided only these provisions are conformed to, the validity of any law relat ing to preventive detention could not be challenged.
I am unable to agree with this view.
The language of article 21 is perfectly general and covers deprivation of personal liberty or incarceration, both for punitive and preventive reasons.
If it was really the intention of the framers of the Constitution to exclude the application of article 21 to cases of preventive detention, nothing would have been easier than to add a reference to article 21 in clause (3) of article 22 which provides that clauses (1) and (2) of the latter shall not apply to any person who is arrested or detained under any law providing for preventive detention Nor is there anything in the language of clauses (4) to (7) of article 22 leading necessarily to the inference that article 21 is inapplicable to preventive detention.
These clauses deal only with certain aspects of preventive deten tion such as the duration of such detention, the constitu tion of an advisory board for reviewing the order of deten tion in certain cases, the communication of the grounds of detention to the person detained and the provision of an opportunity to him of making a representation against the order.
It cannot be said that these provisions form an exhaustive code dealing with all matters relating to preven tive detention and cover the entire area of protection which article 21, interpretedin the sense I have indicated above, would afford to the person detained.
I am, therefore, of opinion that article 21 is applicable to preventive deten tion as well.
I will now proceed to examine whether the impugned Act or any of its provisions under which the petitioner has been ordered to be detained, takes away any of the rights con ferred by articles 21 and 22 or infringes the protection afforded thereby.
The 208 outstanding fact to be borne in mind in this connection is that preventive detention has been given a constitutional status.
This sinister looking feature, so strangely out of place in a democratic constitution which invests personal liberty with the sacrosanctity of a fundamental right and so incompatible with the promises of its preamble is doubtless designed to prevent an abuse of freedom by anti sOcial and subversive elements which might imperil the national welfare of the infant Republic.
It is in this spirit that clauses (3) to (7) of article 22 should, in my opinion, be con strued and harmonised as far as possible with article 21 so as not to diminish unnecessarily the protection afforded for the legitimate exercise of personal liberty.
In the first place, as already stated, clause (3) of article 22 excludes a, person detained under any law providing for preventive detention from the benefit of the safeguards provided in clauses (1) and (2) No doubt clause (5) of the same article makes some amends for the deprivation of these safeguards in that it provides for the communication to the person detained the grounds on which the order has been made and for an opportunity being afforded to him of making a representation against the order, but the important right to consult and to be defended by a legal practitioner of his choice is gone.
Similarly, the prohibition against detention in custody beyond a period of 24 hours without the authority of a magistrate has also been taken away m cases of preventive detention.
It was not disputed that, to the extent to which the express provisions of clauses (4) to (7) authorised the abrogation or abridgement of the safeguards provided under other articles or substitution of other safeguards in a modified form, those express provisions must rule.
Of the four essentials of the due process on which Mr. Nambiar insisted, (which also form part of the ordinary and established procedure under the Criminal Procedure Code, though I cannot agree that they are immutable and beyond legislative change) the requirements of notice and an opportunity to establish his innocence must, as already stated, be taken to have 209 been provided for by clause (5)of article 22.
As for an ascertainable standard of conduct to which it is possible to conform, article 22 makes no specific provision in cases of preventive detention, and if such a safeguard can be said to be implicit in the procedure established by law in the sense explained above in preventive detention cases, it could no doubt be invoked.
This point will be considered presently in dealing with provisions of the impugned Act.
The only other essential requirement, and the most essen tial of all, is an impartial tribunal capable of giving an unbiassed verdict.
This, Mr. Nambiar submitted, was left unprovided for by article 22, the advisory board referred to in clause (4) (a) being, according to him, intended to deal solely with the question of duration of the detention, that is to say, whether or not there was sufficient cause for detaining the person concerned for more than three months, and not with judging whether the person detained was innocent.
A tribunal which could give an unbiassed judg ment on that issue was an essential part of the protection afforded by article21 in whichever way it may be interpret ed, and reference was made in this connection to the preven tive provisions of the Criminal Procedure Code (Ch. VIII).
The impugned Act, not having provided for such a tribunal contravened article 21 and was therefore void.
It will be seen that the whole of this argument is based on the major premise that the advisory board mentioned in clause (4) (a) of article 22 is not a tribunal intended to deal with the issue of justification of detention.
Is that view correct? It was argued that the words "sufficient cause for such detention" in sub clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that this view was supported by the language of sub clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under 'which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board.
In other words, learned counsel submitted, 210 the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law autho rising detention for such period even without the opinion of an advisory board.
Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose.
I am unable to accept this view.
I am inclined to think that the words "such detention" in sub clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months.
An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained.
That must be a matter for the executive authorities, the Depart ment of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point.
All that an advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide.
The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period.
Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate departmental channel.
Each of these steps may, in the course Of official routine, take some time, and 'three months ' period might well have been thought a reasonable period to allow before the board could be required to submit its report.
211 Assuming, however, that the words "such detention" had reference to the period of detention, there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not.
Indeed, if is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all.
I am of opinion that the advisory board referred to in clause (4) is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained.
This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the correct view.
It follows that the petitioner cannot claim to have his case judged by any other impartial tribu nal by virtue of article 21 or otherwise.
Mr. Nambiar, however, objected that, on this view, a law could authorise preventive detention for three months with out providing for review by any tribunal, and for even longer periods if Parliament passed an Act such as is con templated in sub clause (a) of clause (7).
That may be so, but, however deplorable such a result may be from the point of view of the person detained, there could be no remedy if, on a proper construction of clauses (4) and (7), the Consti tution is found to afford no higher protection for the personal liberty of the individual.
Turning next to the provisions of the impugned Act, whose constitutional validity was challenged, it will be necessary to consider only those provisions which affect the petitioner before us.
In the first place, it was contended that section 3, which empowers the Central Government or the State Government to detain any person if it is "satisfied" that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to (among other 212 things) the security of the State or the maintenance of public order, cannot be said to comply with the procedure established by law, as the section prescribes no objective and ascertainable standard of conduct to which it will be possible to conform, but leaves it to the will and pleasure of the Government concerned to make an order of detention.
TIm argument proceeds on the assumption that the procedure established by law is equivalent to the due process of law.
I have already endeavoured to show that it is not Apart from this, the argument overlooks that for the purposes of preventive detention it would be difficult, if not impossi ble to lay down objective rules of conduct failure to conform to which should lead to such detention.
As tim very term implies, the detention in such cases is effected with a view to prevent the person concerned from acting prejudi cially to certain objects which the legislation providing for such detention has in view.
Nor would it be practicable to indicate or enumerate in advance what acts or classes of acts would be regarded as prejudicial.
The responsibility for the security of the State and the maintenance of public order etc.
having been laid on the executive Government it must naturally be left to that Government to exercise the power of preventive detention whenever they think the occa sion demands it.
Section 12 came in for a good deal of criticism.
That section, which governs the duration of thepetitioner 's detention reads as follows : "Duration of detention in certain cases.
Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to: (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State of the maintenance of public order.
213 (2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern ment, and where the order was made by any officer specified in sub section (2)of section 3, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be.
" It was urged that this did not comply with the require ments of clause (7) of article 22 as it merely repeated the "matters" or legislative topics mentioned in Entry 9 of List I and Entry 3 of List III of the Seventh Schedule to the Constitution.
What Parliament has to do under clause(7) of article 22 is to prescribe "the circumstances under which and the class or classes of cases in which" a person may be detained for a period longer than three months without obtaining the opinion of an advisory board.
It was said that clause (4) (a) provided for ordinary cases of preventive detention Where such detention could not continue beyond three months without obtaining the opinion of an advisory board, whereas clause (7) (a) made provision for special cases of detention for more than three months with out the safeguard of the advisory board 's opinion, for aggravated forms of prejudicial conduct.
In other words, clause (4) (a) laid down the rule and clause (7) (a) enacted an exception.
It was therefore necessary for Parliarnent to indicate to the detaining authority for its guidance the more aggravated forms of prejudicial activity, and mere mention of the subjects in respect of which Parliament is authorised under the legislative lists to make laws in respect of preventive detention could hardly afford any guidance to such authority and should not be regarded as sufficient compliance with the requirements of clause (7).
There is a two fold fallacy in 214 this argument.
In the first place, the suggested correla tion between clause (4) (a) and clause (7) (a) as enacting a rule and an exception is, as a matter of construction, without foundation.
Reading clauses (4) and (7) together it is reasonably clear that preventive detention could last longer in two cases: (1) where the opinion of an advisory board is obtained, subject however to a prescribed period [sub clause (a)of clause (4)] and (2) where a person is detained under a law made by Parliament under sub clauses (a) and (b) of clause (7) [sub clause (b) of clause (4)].
These are two distinct and independent provisions.
It is significant that sub clause (b) of clause (4) is not worded as a proviso or an exception to sub clause (a) of the same clause as it would have been if it was intended to operate as such.
The attempt to correlate clause (4)(a)and clause (7) (a) as a rule and an exception respectively is opposed both to the language and the structure of those clauses. 'Secondly, the argument loses sight of the fact that clause (7) deals with preventive detention which is a purely precautionary measure which "must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof" [ per Lord Atkinson in Rex vs Halliday (1) ].
The remarks I have ' already made with reference to the absence of any objective rules of conduct in section 3 of the impugned Act apply also to this criticism of section 12.
It would be difficult, if not impracticable, to mention the variouscircumstances, or to enumerate the various class es of cases exhaustively in which a person should be de tained for more than three months for preventive purposes, except in broad outline.
Suppose a person belongs to.
an organization pledged to violent and subversive activity as its policy.
Beyond his membership of theparty the person might have done nothing until he1 was arrested and detained.
But if released he might indulge in anything from the mild est form of prejudicial activity, like sticking an objec tionable handbill on a hoarding, to the most outrageous acts of sabotage.
(1) ; , 275. 215 How could the insertion in section 12 of a long series of categories of aggravated forms of prejudicial activities, or the enumeration of the various circumstances in which such activities are likely to be indulged in, be of any assist ance to the detaining authority in determining whether the person concerned should be detained for three months or for a longer period ? All that would be necessary and suffi cient for him to know for coming to a decision on the point is that the person is a member of such an organisation and will probably engage in subversive activities prejudicial to the security of the State or the maintenance of public order or, in other words, he belongs to class (b) in section 12.
While enumeration and classification in detail would un doubtedly help in grading punishment for offences committed, they would not be of much use in fixing the duration of preventive detention.
Sufficient guidance in such cases could be given by broadly indicating the general nature of the prejudicial activity which a person is likely to indulge in, and that in effect is what Parliament has done in sec tion 12.
Reference was made in this connection to Rule 34 of the Defence of India Rules framed under the Defence of India Act, 1939, where "prejudicial act" is defined by enumeration.
But it was also for the purpose of prohibiting such acts [ Rule 38 sub rule (1) ] and making them offences (sub rule 5).
And even there, the definition had to end in a residuary clause sweeping in acts likely "to prejudice the efficient prosecution of the war, the defence of British India or, the public safety or interest.
" In Lists I and III of the Seventh Schedule to the Constitution six topics are mentioned in respect of which Parliament could make laws providing for preventive detention, and section 12 of the impugned Act mentions five of them as being the classes of cases or the circumstances in which longer detention is authorised.
I fail to see why this could not be regarded as a broad classification of cases or a broad description of circumstances where Parliament considers longer detention to be justifiable.
A class can well be designated with refer ence to the end which one desires to secure, and the matters referred to as classes (a) 216 and (b) of sub section (1) of section 12 being clearly the objects which Parliament desired to secure by enacting the section, it seems to me that the classification with refer ence to such general aims does not contravene article 22 (7).
It was argued that Parliament did not, in enacting section 12, perform its duty of prescribing both the circumstances and the class or classes of cases where detention without obtaining the advisory board 's opinion could be for a period longer than three months.
The use of the disjunctive "or" between the word "circumstances" and the words "class or classes of cases" showed, it was said, that Parliament proceeded on the view that it need not prescribe both.
This was in contravention of article 22 (7) which used the con junctive "and" between those words.
There is no substance in this objection.
As I read article 22 (7) it means that Parliament may prescribe either the circumstances or the classes of cases or both, and in enacting section 12 Parliament evidently regarded the matters mentioned in clause (a) and (b) of sub section (1) as sufficiently indic ative both of the Circumstances under which and the classes in which a person could be detained for the longer period.
To say, for instance, that persons who are likely to act prejudicially to the defence of India may be detained beyond three months is at once to "prescribe a class of persons in which and the circumstances under which" a person may be detained for the longer period.
In other words, the classi fication itself may be such as to amount to a sufficient description of the circumstances for purposes of clause (7).
The circumstances which would justify precautionary deten tion beyond three months without recourse to an advisory board must be far too numerous for anything approaching an exhaustive enumeration, and it can, in my judgment, be no objection to the validity of section 12 that no circum stances are mentioned apart from the matters referred to in clauses (a) and (b) of sub section (1).
It would indeed be singular for the Court to strike down a parliamentary enact ment because in its opinion a 217 certain classification therein made is imperfect or the mention of certain circumstances is unspecific or inade quate.
Lastly, Mr. Nambiar turned his attack on section 14 which prohibits the disclosure of the grounds of detention communicated to the person detained and of the representa tion made by him against the order of detention, and debars the Court from allowing such disclosure to be made except for purposes of a prosecution punishable under sub section (2) which makes it an offence for any person to disclose or publish such grounds or representation without the previous authorisation of the Central Government or the State Government as the case may be.
The petitioner com plains that this provision nullifies in effect the rights conferred upon him under clause (5) of article 22 which entitles him to have the grounds of his detention communi cated to him and to make a representation against the order.
If the grounds are too vague to enable him to make any such representation, or if they are altogether irrelevant to the object of his detention, or are such as to show that his detention is not bona fide, he has the further right of moving this Court and this remedy is also guaranteed to him under article 32.
These rights and remedies, the petitioner submits, cannot be effectively excercised, if he is prevent ed on pain of prosecution, from disclosing the grounds to the Court.
There is great force in this contention.
All that the Attorney General could say in answer was that if the other provisions of the Act were held to be valid, it would not be open to the Court to examine the sufficiency of the grounds on which the executive authority was "satisfied" that detention was necessary, as laid down in Machindar Shivaji Mahar vs The King (1), and so the petitioner could not complain of any infringement of his rights by reason of section 14 which enacted only a rule of evidence.
The argument overlooks that it was recognised in the decision referred to above that it would be open to the Court to examine the grounds of detention in order to see whether they were relevant to the object which the legislature had (1) 218 in view, such as, for instance, the prevention of acts prejudicial to public safety and tranquillity, or were such as to show that the detention was not bona fide.
An examina tion of the grounds for these purposes is made impossible by section 14, and the protection afforded by article 22 (5) and article 32 is thereby rendered nugatory.
It follows that section 14 contravenes the provisions of article 22 (5) and article 32 in so far as it prohibits the person detained from disclosing to the Court the grounds of his detention communicated to him by the detaining authority or the repre sentation made by him against the order of detention, and prevents the Court from examining them for the purposes aforesaid, and to that extent it must be held under article 13 (2) to be void.
This however, does not affect the rest of the Act which is severable.
As the petitioner did not disclose the grounds of his detention pending our decision on this point he will now be free to seek his remedy, if so advised, on the basis of those grounds.
In the result, the application fails and is dismissed.
MAHAJAN J.
The people of India having solemnly resolved to constitute India into a Sovereign Democratic Republic on the 26th day of November 1949 gave to themselves a Constitution which came into force on the 26th January 1950.
This is the first case in which this Court has been called upon to determine how far the Constitution has secured personal liberty to the citizens of this country.
A.K. Gopalan, the petitioner, who was already under the custody of the Superintendent, Central Jail, Cuddalore, was served with an order of detention under section 3 (1) of the (Act IV of 1950) on the 27th February 1950.
It was said in the order that the Governor of Madras was satisfied that it was necessary to make the order with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order.
On 20th March 1950 a petition was presented to this Court under article 32 219 of the Constitution praying for the issue of a writ of habeas corpus directing the State of Madras to produce him before the Court and to set him at liberty.
A writ was accordingly issued.
The return to the writ is that the detention is legal under Act IV of 1950, enacted by Parlia ment.
The petitioner contends that the Act abridges and infringes certain provisions of Part III of the Constitution and is thus outside the constitutional limits of the legis lature and therefore void and unenforceable.
The matter is one of great importance both be cause the legislative power expressly conferred by the 7th Schedule has been impugned and because the liberty of the citizen is seriously affected.
The decision of the question whether Act IV of 1950 takes away or abridges the rights conferred by Part III of the Constitution depends on a consideration of two points: (1) In what measure has the Constitution secured person al liberty to a citizen of India, and.
(2) has the impugned legislation in any way taken away or abridged the rights so secured and if so, to what extent ? Act IV of 1950 provides for preventive detention in certain cases and it has been enacted as a temporary meas ure.
It will cease to have effect on 1st April 1951.
It empowers the Central Government and the State Governments to make an order directing a person to be detained with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers or the security of India.
It also gives power to detain a person who acts in any manner prejudicial to the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community.
It came into force on 26th February 1950 and was enacted by virtue of the powers conferred on Parliament by article 22 clause (7) of Part III of the Constitution read with the entries in the 7th Schedule.
There can be no doubt that the legislative will expressed herein 220 would be enforceable unless the legislature has failed to keep within its constitutional limits.
It is quite obvious that the Court cannot declare a statute unconstitutional and void simply on the ground of unjust and oppressive provi sions or because it is supposed to violate natural, social or political rights of citizens unless it it can be shown that such injustice is prohibited or such rights are guaranteed or protected by the Constitution.
It may also be observed that an Act cannot be declared void because in the opinion of the Court it is opposed to the spirit supposed to pervade the Constitution but not so expressed in words.
It is difficult on any general principles to limit the omnipo tence of the sovereign legislative power by judicial inter position except in so far as the express words of a written Constitution give that authority.
Article 13 (2) of our Constitution gives such an authority and to the extent stated therein.
It says that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void.
Preventive detention laws are repugnant to democratic constitutions and they cannot be found to exist in any of the democratic countries of the world.
It was stated at the Bar that no such law was in force in the United States of America.
In England for the first time during the first world war certain regulations framed under the Defence of the Realm Act provided for preventive detention at the satisfaction of the Home Secretary as a war measure and they ceased to have effect at the conclusion of hostilities.
The same thing happened during thesecond world war.
Similar regulations were introduced during the period of the war in India under the Defence of India Act.
The Government of India Act, 1935, conferred authority on the Central and Provincial Legislatures to enact laws on this subject for the first time and since then laws on this subject have taken firm root here and have become a permanent part of the statute book of this country.
Curiously enough, this subject has found place in the Constitution in the.
221 chapter on Fundamental Rights.
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule mention the scope of legislative power of Parliament in respect of this topic.
The jurisdiction, however, to enact these laws is subject to the provisions of Part III of the Constitu tion.
Article 22 in this Part provides : "(1 ) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period pre scribed by any law made by Parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to, disclose facts which such authority considers to be against the public interest to disclose, (7) parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4).
" The question of the constitutional validity of the impugned statute has to be approached with great caution in view of these provisions of the Constitution and has to be considered with patient attention.
The benefit of reasona ble doubt has to be resolved in favour of legislative ac tion, though such a presumption is not conclusive It seems that the subject of preventive detention became the particu lar concern of the Constitution because of its intimate connection with deprivation of personal liberty to protect which certain provisions were introduced in the Chapter on Fundamental Rights and because of the conditions prevailing in the newly born Republic.
Preventive detention means a complete negation of freedom of movement and of personal liberty and is incompatible with both those subjects and yet it is placed in the same compartment with them in Part III of the Constitution.
223 Though the Constitution has recognized the necessity of laws as to preventive detention it has also provided certain safeguards to mitigate their harshness by placing fetters on legislative power conferred on this subject.
These are (1) That no law can provide for detention for a period of more than three months unless the sufficiency for the cause of the detention is investigated by an advisory board within the said period of three months.
This provision limits legislative power in the matter of duration of the period of detention.
A law of preventive detention would be void if it permits detention for a longer period than three months without the intervention of an advisory board.
(2) That a State law cannot authorize detention beyond the maximum period prescribed by Parliament under the powers given to it in clause (7).
This is a limitation on the legislative power of the State legislature.
They cannot make a law authorizing preventive detention for a longer period than that fixed by Parliament.
(3) That Parliament also cannot make a law authorizing detention for a period beyond three months without the intervention of an advisory board unless the law conforms to the conditions laid down in clause (7) of article 22.
Provision also has been made to enable Parliament to make laws for procedure to be followed by advisory boards.
This is a safeguard against any arbitrary form of procedure that may otherwise find place in State laws.
Apart from these enabling and disabling provisions certain procedural rights have been expressly safeguarded by clause (5) of article 22.
A person detained under a law of preventive detention has a right to obtain information as to the grounds of his detention and has also the right to make a representation protesting against an order of preventive detention.
This right has been guaranteed independently of the duration of the period of detention and irrespective of the existence or non existence of an advisory board.
No machinery, however, has been provided or expressly 29 224 mentioned for dealing with this representation.
It seems to me that when a constitutional right has been conferred as a necessary consequence, a constitutional remedy for obtaining redress in case of infringement of the right must be pre sumed to have been contemplated and it could not have been intended that the right was merely illusory and that a representation made may well find place in cold storage.
Consideration of the representation made by virtue of clause (5) by an unbiassed authority is, m my opinion, a necessary consequence of the guaranteed right contained herein.
The right has been conferred to enable a detained person to establish his innocence and to secure justice, and no jus tice can be said to be secured unless the representation is considered by some impartial person.
The interpretation that I am inclined to place on clause (5) of article 22 is justi fied by the solemn words of the declaration contained in the Preamble to the Constitution.
It is this declaration that makes our Constitution sublime and it is the guarantees mentioned in the chapter on Fundamental Rights that make it one of the greatest charters of liberty and of which the people, of this country 'may well be proud.
This charter has not been forced out of unwilling hands of a sovereign like the Magna Carta but it has been given to themselves by the people of the country through their Constituent Assem bly.
Any interpretation of the provisions of Part III of the Constitution without reference to this solemn declara tion is apt to lead one into error.
If the right of repre sentation given to a detained person by clause (5) of arti cle 22 is a guaranteed right and has been given for the purpose of securing justice, then it follows that no justice can be held secured to him unless an unbiassed person considers the merits of the representation and gives his opinion on the guilt or the innocence of the persons detained.
In my view, the right cannot be defeated or made elusive by presuming that the detaining authority itself will consider the representation with an unbiassed mind and will render justice.
That would in a way make the prosecu tor a judge in the case and such a procedure is repugnant.
to all notions 225 of justice.
The Constitution has further curtailed the rights given in clause (5) by providing in clause (6) a privilege on the detaining authority of witholding facts which the said authority considers not in public interests to disclose.
This privilege has been conferred for the security of the State and possibly for the security of the Constitution itself, but in view of these stringent provi sions no additional clogs can be put on the proper consider ation of the representation of the detained person by pre suming that the detaining authority itself will properly consider the representation.
It has also to be remembered in this context that a person subjected to the law of pre ventive detention has been deprived of the rights conferred on persons who become subject to the law of punitive deten tion [vide clauses (1) and (2) of article 22].
He has been denied the right to consult a lawyer or be defended by him and he can be kept in detention without being produced before a magistrate.
Having examined the provisions of article 22, I now proceed to consider the first question that was canvassed before us by the learned Attorney General, i.e., that arti cle 22 of the Constitution read with the entries in the 7th Schedule was a complete Code on the subject of preventive detention, and that being so, the other articles of Part III could not be invoked in the consideration of the validity of the impugne 'd statute.
It was conceded by the learned coun sel for the petitioner that to the extent that express provisions exist in article 22 on the topic of preventive detention those provisions would prevail and could not be controlled by the other provisions of Part III.
It was, however, urged that on matters on which this article had made no special provision on this topic the other provisions of Part III of the Constitution had application, namely, articles 10 and 21 and to that extent laws made on this subject were justiciable.
In order to draw the inference that the framers of the Constitution intended the provisions as regards preventive detention in article 22 to be self contained a clear indication of such an intention has to be gathered.
If the provisions embodied in this article have dealt 226 with all the principal questions that are likely to arise in matters of procedure or on questions of the reasonableness of the period of detention, the inference of such an indica tion would be irresistible.
Ordinarily when a subject is expressly dealt with in a constitution in some detail, it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere.
Express mention of one thing is an exclusion of the other.
Expressio unius est exclusio alterius.
I am satisfied on a review of the whole scheme of the Constitu tion that the intention was to make article 22 self con tained in respect of the laws on the subject of preventive detention.
It was contended that all the articles in the Constitution should be read in an harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part.
It was said that they were all supplementary to one another.
In this connection it was argued that a law made under article 22 would not be valid unless it was in accord with the provisions of article 21 of the Constitution.
This article provides that no person shall be deprived of life or liberty ' except according to procedure established by law.
It was contended that in substance the article laid down that no person will be deprived of life or liberty without having been given a fair trial or a fair hearing and that unless a law of preventive detention provided such a hearing that law would be in contravention of this article and thus void.
Conceding for the sake of argument (but without expressing any opinion on it ) that this contention of the learned counsel is correct, the question arises whether there is anything in article 22 which negatives the application of article 21 as above construed to a law on preventive detention.
In my opinion, sub clause (5) of article 22 read with clauses (1) and (2) leads to the inference that the contention raised by the learned counsel is unsound.
Clause (5), as already stated, provides that notice has to be given to a detenu of the grounds of his detention.
It also provides a limited hearing inasmuch as it gives him an opportunity to 227 establish his innocence.
As, in my opinion, the considera tion of a representation made by a detained person by an unbiassed authority is implicit in clause (5) it gives to the detained person all that he is entitled to under the principles of natural justice.
The right to consult and to be represented by a counsel of his own choice has been denied in express terms to such a person by the Constitu tion.
He is also denied an opportunity of appearing before a magistrate.
When the Constitution has taken away certain rights that ordinarily will be possessed by a detained person and in substitution thereof certain other rights have been conferred on him even in the matter of procedure, the inference is clear that the intention was to deprive such a person of the right of an elaborate procedure usually pro vided for in judicial proceedings.
Clause (6) of article 22 very strongly supports this conclusion.
There would have been no point in laying down such detailed rules of proce dure in respect of a law of preventive detention if the intention was that such a law would be subject to the provi sions of article 21 of the Constitution.
In its ultimate analysis the argument of the learned counsel for the peti tioner resolves itself to this: that the impugned statute does not provide for an impartial tribunal for a considera tion of the representation of the detained person and to this extent it contravenes article 21 of the Constitution.
As discussed above, in ray opinion, such a provision is implicit within article 22 itself and that being so, the application of article 21 to a law made under article 22 is excluded.
It was next contended that a law of preventive detention encroaches on the right of freedom of movement within the territory of India guaranteed to a citizen under article 19 (1) (d) and that being so, by reason of the provisions of sub clause (5) of article 19 it was justiciable on the ground of reasonableness.
It is true, as already pointed out, that a law of preventive detention is wholly incompati ble with the right of freedom of movement of a citizen.
Preventive detention in substance is a negation of the freedom of locomotion guaranteed under article 19 (1) (d) but it cannot be said that it merely restricts it.
Be that as it may, the 228 question for consideration is whether it was intended that article 19 would govern a law made under the provisions of article 22.
Article 19 (5) is a saving and an enabling provision.
It empowers Parliament to make a law imposing reasonable restriction on the right of freedom of movement while article 22 (7) is auother enabling provision empower ing Parliament to make a law on the subject of preventive detention in certain circumstances.
If a law conforms to the conditions laid down in 'article 22 (7), it would be a good law and it could not have been intended that that law validly made should also conform itself to the provisions of article 19 (5).
One enabling provision cannot be considered as a safeguard against another enabling provision.
Article 13 (2) has absolutely no application in such a situation.
If the intention of the constitution was that a law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have trou bled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made and by mentioning the procedure that the law dealing with that subject had to provide.
Some of the provisions of article 22 would then have been redun dant, for instance, the provision that no detention can last longer than three months without the necessity of such detention being examined by an advisory board.
This provi sion negatives the idea that the deprivation of liberty for a period of three months without the consultation of the advisory board would be justiciable on the ground of reason ableness.
Again article 22 has provided a safeguard that if an advisory board has to be dispensed with, it can only be so dispensed with under a law made by Parliament and that Parliament also in enacting such a law has to conform to certain conditions.
This provision would have ' been unnec essary in article 22 if a law on this subject was justicia ble.
In sub clause (b) of clause (7) of article 22 provision has been made enabling Parliament to fix the maximum period for which a person can be detained under a law on the sub ject of preventive detention.
Under 229 this express provision it is open to Parliament to fix any period, say, even a period of five to ten years as the maximum period of detention of a person.
Can it be said that in view of this express provision of the Constitution such a law was intended to be justiciable by reason of article 19 (5) ? Duration of detention is the principal matter in preventive detention laws which possibly could be examined on the touchstone of reasonableness under article 19 (5), but this has been expressly excluded by express provisions in article 22.
In my judgment, therefore, an examination of the provisions of article 22 clearly suggests that the intention was to make it self contained as regards the law of preventive detention and that the validity of a law on the subject of preventive detention cannot be exam ined or controlled either by the provisions of article 21 or by the provisions of article 19 (5) because article 13 (2) has no application to such a situation and article 22 is not subject to the provisions of these two articles.
The Consti tution in article 22 has gone to the extent of even provid ing that Parliament may by law lay down the procedure to be followed by an advisory board.
On all important points that could arise in connection with the subject of preventive detention provision has been made in article 22 and that being so, the only correct approach in examining the validi ty of a law on the subject of preventive detention is by considering whether the law made satisfied the requirements of article 22 or in any way abridges or contravenes them and if the answer is in the affirmative, then the law will be valid, but if the answer is in the negative, the law would be void.
In expressing the view that article 22 is in a sense self contained on the law of preventive detention I should not however be understood as laying down that the framers of the article in any way overlooked the safeguards laid down in article 21.
Article 21, in my opinion.
lays down sub stantive law as giving protection to life and liberty inas much as it says that they cannot be deprived except accord ing to the procedure established by law; in other words, it means that before a person can be deprived of his life or liberty 230 as a condition precedent there should exist some substantive law conferring authority for doing so and the law should further provide for a mode of procedure for such depriva tion.
This article gives complete ' immunity against the exercise of despotic power by the executive.
It further gives immunity against invalid laws which contravene the Constitution.
It gives also further guarantee that in its true concept there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty.
It negatives the idea of fantastic, arbitrary and oppressive forms of proceedings.
The principles there fore underlying article 21 have been kept in view in draft ing article 22.
A law properly made under article 22 and which is valid in all respects under that article and lays down substantive as well as adjective law on this subject would fully satisfy the requirements of article 21, and that being so, there is no conflict between these two articles.
The next question that arises for decision is whether there is anything in Act IV of 1950 which offends against the provisions of article 22 of Part III of the Constitu tion.
The learned counsel for the petitioner contended that section 3 of the Act was bad inasmuch as it made "satisfaction of the Government" as the criterion for de taining a person.
It was said that as section 3 laid down no objective rule of conduct for a person and as people were not told as to what behaviour was expected of them, the result was that it could not be known what acts a person was expected to avoid and what conduct on his part was prejudi cial to the security of the State or the maintenance of ' public order; in other words, it was argued that section 3 left the determination of the prejudicial act of a person to the arbitrary judgment of the Government and that even the officer who was to administer this law had been furnished no guide and no standard of conduct in arriving at his own satisfaction whether the conduct was prejudicial to the security of the State etc.
This criticism of the learned counsel, in my opinion, is not valid, It is no doubt true that a detention order depends on the satisfac tion of the ' 231 Government but this provision is in accordance with article 22 of the Constitution which to my mind contemplates detention on the satisfaction of the executive authority.
By its very nature the subject is such that it implies detention on the judgment of the authority entrusted with the making of the order.
The whole intent and purpose of the law of preventive detention would be defeated if satis faction of the authority concerned was subject to such an objective standard and was also subject to conditions as to legal proof and procedure.
In the 7th Schedule jurisdiction to make the law on this subject has been given for reasons connected with defence etc.
and the maintenance of public order.
These are subjects which concern the life and the very existence of the State.
Every citizen is presumed to know what behaviour is prejudicial to the life of the State or to its existence as an ordered State.
Considering that the State is presumed to have a government that conducts itself in a reasonable way and also presuming that its officers usually will be reasonable men, it cannot be said that in making "satisfaction of the government" as the standard for judging prejudicial acts of persons who are subject to the law of preventive detention section 3 in any way contravenes article 22 of the constitution.
Section 7 of the impugned Act gives full effect to the provisions of article 22 sub clause (5) and enacts that representation has to be made to the Central or State Gov ernment as the case may be.
It was impeached on the ground that no machinery has been provided herein to consider and adjudicate on the merits of the representation.
To this extent, as already indicated, the law is defective.
In the absence of a machinery for the investigation of the conten tions raised in the representation it may be open to the detenu to move this Court under article 32 for a proper relief.
It is, however, unnecessary to express any opin ion as to the precise remedy open to a detained person in this respect.
The absence of a provision of this nature in the statute however would not make the law wholly void.
Section 9 of the Act makes reference 30 232 to the advisory board obligatory in cases falling under sub clause (iii) of clause (a) or clause (b) of sub section (1) of section a within six weeks of the order.
The proce dure to be followed by the advisory board is laid down in section 10.
Parliament has been authorized to lay down such a procedure to be followed by an advisory board in sub clause (c) of clause (7).
It was contended that the law had not provided a personal hearing to the detenu before an advisory board, nor had it given him a right to lead evi dence to establish his innocence.
In my opinion, this criticism is not sound and does not in any way invalidate the law.
The advisory board has been given the power to call for such information as it requires even from the person detained.
It has also been empowered to examine the materi al placed before it in the light of the facts and arguments contained in the representation.
The opportunity afforded is not as full as a person gets under normal judicial proce dure but when the Constitution itself contemplates a special procedure being prescribed for preventive detention cases, then the validity of the law on that subject cannot be impugned on the grounds contended for.
Section 11 of the Act was also impugned on the ground that it offended against the Constitution inasmuch as it provided for preventive detention for an indefinite period.
This section in my opinion has to be read in the background of the provision in sub clause (3) of section 1 of the Act which says that the Act will cease to have effect on 1st April, 1951.
Besides, the words "for such period as it thinks fit" do not in any way offend against the provisions of article 22 wherein Parliament has been given the power to make a law fixing the maximum period for preventive deten tion.
It has to be noted that Parliament has fixed a period of one year as the maximum period for the duration of detention where detention has to be without reference to an advisory board.
In my opinion, there is nothing in section 11 which is outside the constitutional limits of the powers of the supreme legislature.
233 It is section 12 of the Act which was assailed by the learned counsel for the petitioner rather vehemently.
This section is of a very controversial character.
It has been enacted on the authority of clause (7) of article 22 and runs thus : "(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an Advisory Board for a period longer than three months, but not exceed ing one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State or the maintenance of public order.
(2) The case of every person detained under a detention order to which the provisions of sub section (1) apply shall, within a period of six months from the date of his detention, be reviewed where the order was made by the Central Government or a State Government, by such Govern ment, and where the order was made by any officer specified in sub section (2) of section a, by the State Government to which such officer is subordinate, in consultation with a person who is, or has been, or is qualified to be appointed as, a Judge of a High Court nominated in that behalf by the Central Government or the State Government, as the case may be." The section purports to comply with the conditions laid down in clause (7) of article 22.
It was, however, argued that in substance and reality it has failed to comply with any of the conditions laid down therein; that it neither mentions the circumstances under which nor the classes of cases in which preventive detention without recourse to the machinery of an advisory board could be permitted.
The crucial question for consideration is whether section 12 mentions any circumstances under which or defined the class es of cases in which authority was conferred by clause (7) 234 to dispense with an advisory board.
So far as I have been able to gather from opinions of text book writers on the subject of classification, the rule seems clear that in making classification of cases there has to be some rela tionship to the classification to the objects sought to be accomplished.
The question for consideration therefore is what object was sought to be accomplished when the Constitu tion included clause (7) in article 22.
It seems clear that the real purpose of clause (7) was to provide for a contin gency where compulsory requirement of an advisory board may defeat the object of the law of preventive detention.
In my opinion, it was incorporated in the Constitution to meet abnormal and exceptional cases, the cases being of a kind where an advisory board could not be taken into confidence.
The authority to make such drastic legislation was entrusted to 'the supreme legislature but with the further safeguard that it can only enact a law of such a drastic nature provided it prescribed the circumstances under which such power had to be used or in the alternative it prescribed the classes of cases or stated a determinable group of cases in which this could be done.
The intention was to lay down some objective standard for the guidance of the detaining authority on the basis of which without consultation of an advisory board detention could be ordered beyond the period of three months.
In this connection it has to be remembered that the Constitution must have thought of really some abnormal situation and of some dangerous groups of persons when it found it necessary to dispense with a tribu nal like an advisory board which functions in camera and which is not bound even to give a personal hearing to the detenu and whose proceedings are privileged.
The law on the subject of preventive detention in order to avoid even such an innocuous institution could only be justified on the basis of peculiar circumstances and peculiar situations which had to be objectively laid down and that was what in my opinion was intended by clause (7).
If the peculiarity lies in a situation outside 'the control or view of a de tained person, then it may be said that the description of such a situation would 235 amount to a prescription of the circumstances justifying the detention for a longer period than three months by a law without the intervention of an advisory board '.
If, however, the abnormality relates to the conduct and character of the activities of a certain determinable group of persons, then that would amount to a class of cases which was contemplated to be dealt with under clause (7).
In such cases alone arbitrary detention could be held justifiable by law beyond a period of three months.
It was argued by the learned counsel for the petitioner that the phrase "circumstances under which, and the classes of cases in which" used in clause (7) had to be construed in a cumulative sense; on the other hand, the learned Attorney General contended that the word "and" had been used in this clause in the same sense as "or." He further argued that even if the word "and" is not given that meaning the true construction of the phrase was that Parliament could prescribe either the circumstances or the classes of cases for making a law on the subject of preventive detention authorizing detention for a longer period than three months without the machinery of an advisory board.
In Full Bench Reference No. 1 of 1950, Das Gupta J. of the Calcutta High Court held that the intention of the legislature in enacting the clause was that the law of preventive detention author izing detention for a longer period than three months with out the intervention of an advisory board had to fulfil both the requirements laid down in clause (7) and not only one of the requirements in the alternative.
The same view has been expressed by my brother Sir Fazl Ali.
I share this view with him.
I would, however, like to consider this matter from a different aspect on the assumption that the contention raised by the learned Attorney General is right.
Dealing first with the question whether section 12 mentions any circumstances, so far as I have been able to see, it does not prescribe any circumstances unless it can be said that the prejudicial acts for reasons connected with the security of State, maintenance of public order, etc.
are both the circumstances as well as 236 the classes of cases.
In my opinion, this line of approach cannot be held to be correct in the construction of clause (7) of article 22.
I am inclined to agree with the learned Attorney General that the phrase "circumstances under which" means some situation extraneous to the detenu 's own acts, in other words, it means some happening in the country with which the detenu is not concerned, such as a situation of tense communal feelings, an apprehended internal rebellion or disorder, the crisis of an impending war or apprehended war, etc.
In such a situation the machinery of an advisory board could be dispensed with because it may become cumber some or it may hamper the exercise of necessary powers.
In this view of the matter I have no hesitation in holding that no circumstances have been stated in section 12, though the section ostensibly says so.
If it was permissible to con jecture, it seems that the draftsman of section 12 ' repeated the words of clause ' (7) of article 22 without an applica tion of his mind to the meaning of those words and as the legislation was passed in haste to meet an emergent situa tion, it suffers from the defects which all hasty legisla tion suffer from.
I now proceed to consider whether section 12 has classi fied the cases in which detention for a longer period beyond three months could be suffered by a citizen without the benefit of the machinery of an advisory board.
The section has placed five subjects out of the legislative list within its ambit and these are described as the classes of cases.
The question is whether it can be said that a mere selection of all or any of the categories of the subjects for reasons connected with which a law of preventive detention could be ' made under the 7th Schedule amounts to a classification of cases as contemplated in clause (7) of article 22.
Entry 9 of the Union List and Entry 3 of the Concurrent List of the 7th Schedule lay down the ambit of legislative power of Parliament on the subject of preventive detention on the following six subjects : (1) Defence of India, (2) Foreign Affairs, (a) Security of India, (4) Security of the State, (5) Mainten 237 ance of public order, (6) Maintenance of supplies and serv ices essential to the community.
Clause (4) of article 22 enjoins in respect of all the six subjects that no law can provide for preventive deten tion for a longer period than three months without reference to an advisory board.
Clause (7) gives permission to make a law for dispensing with an advisory board by a prescription of the circumstances and by a prescription of the classes of cases in which such a dispensation can be made.
The legis lative authority under clauses (4) and (7)in my opinion, extends to all these six subjects.
The normal procedure to be followed when detention is intended to be beyond a period of three months in respect of the six subjects is provided in sub clause (4) The extraordinary and unusual procedure was intended, to be adopted in certain abnormal cases for which provision could be made by a parliamentary statute under clause (7).
It seems to me, however, that section 12 of Act IV of 1950 has reversed this process quite contrary to the intention of the Constitution.
By this section Act IV of 1950 has dispensed with the advisory board in five out of the six subjects above mentioned and the compulsory procedure of an advisory board laid down in clause (4) of article 22 has been relegated to one out of these six sub jects.
This has been achieved by giving a construction to the phrase "circumstances under which and the classes of cases in which" so as to make it co extensive and cotermi nous with the "subjects of legislation.
" In my opinion, this construction of clause (7) is in contravention of the clear provisions of article 22, and makes clause (4) of article 9,2 to all intents and purposes nugatory.
Such a construction of the clause would amount to the Constitution saying in one breath that a law of preventive detention cannot provide for detention for a longer period than three months without reference to an advisory board and at the same breath and moment saying that Parliament, if it so chooses, can do so in respect of all or any of the subjects mentioned in the legislative field.
If that was so, it would have been wholly unnecessary to provide such a safe guard in the Constitution on a matter 238 which very seriously affects personal liberty.
On the other hand, it would be a reasonable construction of the clause to hold that the Constitution authorized Parliament that in serious classes of cases or in cases of those groups of persons who are incorrigible or whose activities are secret the procedure of an advisory board may well be dispensed with, that being necessary in the interests of the State.
On the other construction as adopted by the framers of section 12, the Constitution need not have troubled itself by con ferring an authority on Parliament for making such a law.
Moreover, if that was the intention, it would have in very clear words indicated this by drafting article 22 clause (4) thus: "Unless otherwise provided by Parliament no law provid ing for preventive detention shall authorize detention for a longer period than three months unless an Advisory Board has investigated the sufficiency of the cause of such detention.
" The words "Unless otherwise provided for by Parliament" would have been in accord with the construction which the framers of section 12 have placed on article 22 clause (7).
I am further of the opinion that the construction placed by the learned Attorney General on clause (7) of article 22 and adopted by the framers of Act IV of 1950 creates a very anomalous situation.
The matter may be examined from the point of view of the law of preventive detention for reasons connected with supplies and services essential to the life of the community.
This subject has been put under section 9 in Act IV of 1950.
Suppose a tense situation arises and there is a danger of the railway system being sabotaged and it becomes necessary to pass detention orders against cer tain persons.
According to Act IV of 1950 in such a serious state of affairs the procedure of an advisory board is compulsory, while on the other hand, if there is an appre hension of disturbance of public order by reason of a wrong decision of an umpire at a cricket match or on account of conduct of persons celebrating the festival of Holi, then detention beyond three 239 months can be ordered without reference to an advisory board.
Could such an anomalous result be in the contempla tion of the framers of the Constitution ? The construction that I am inclined to place on the section is in accord with the scheme of the law of punitive detention.
Hurt is an offence under the Indian Penal Code and this is one of the subjects of punitive detention.
The cases on the subject have been classified in different groups, namely, simple hurt, grievous hurt, grievous hurt with dangerous weapons, grievous hurt to extort a confession, grievous hurt to restrain a public officer from doing his duty, grievous hurt by a rash act, and grievous hurt on provocation.
Even simple hurt has been classified in different categories.
The sub ject of assault has also been similarly dealt with.
Sections 352 to 356 deal with cases classified according to the gravity of the offence, i.e., cases of simple assault, assault on a public servant, assault on women, assault in attempt to 'commit theft, assault for wrongfully confining a person and assault on grave provocation have been separately grouped.
Another illustration is furnished by the Criminal Procedure Code in the preventive sections 107 to 110.
These deal with different groups of persons; vagrants are in one class, habitual offenders in another, bad characters in the third and disturbers of peace in the fourth.
It seems that it is on lines similar to these that it must have been contemplated by the Constitution that classes of cases would be prescribed by Parliament, but this has not been done.
The Constitution has recognised varying scales of duration of detention with the idea that this will vary with the nature of the apprehended act, detention for a period of three months in ordinary cases, detention for a longer period than three months with the intervention of an adviso ry board in more serious cases, while detention for a longer period than three months without the intercession of an advisory board for a still more dangerous class and for acts committed in grave situations.
It can hardly be said that all cases of preventive detention for reasons connected with the maintenance of public order stand on the same footing in the degree of gravity and deserve the same 240 duration of detention and all cases connected with the maintenance of supplies and services essential to the life of the community stand in the matter of their gravity on such a footing as to require a lenient treatment.
It is true that in a sense all persons who act prejudicially to the defence of India may be comprehensively said to form one group and similarly persons who act prejudicially to the maintenance of supplies and services essential to the life of the community may form another class but the question is, whether it was in this comprehensive sense that classifica tion was intended by the Constitution in clause (7) or was it intended in a narrower and restricted sense ? It has to be remembered that the law under clause (7) was intended to provide detention for a longer period and such a law very seriously abridges personal liberty and in this situation giving a narrower and restricted meaning to this expression will be in accordance with well established canons of con struction of statutes.
The wide construction of clause (7) of article 22 brings within the ambit of the clause all the subjects in the legislative list and very seriously abridges the personal liberty of a citizen.
This could never have been the inten tion of the framers of the Constitution.
The narrow and restricted interpretation is in accord with the scheme of the article and it also operates on the whole field of the legislative list and within that field it operates by demar cating certain portions out of each subject which requires severe treatment.
If I may say so m conclusion, section 12 treats the lamb and the leopard in the same class because they happen to be quadrupeds.
Such a classification could not have been in the thoughts of the Constitution makers when clause (7) was introduced in article 22.
For the reasons given above, I am of the opinion that section 12 of Act IV of 1950 does not fulfil the requirements of clause (7) of article 22 of the Constitution and is not a law which falls within the ambit of that clause.
That being so, this section of Act IV of 1950 is void and by reason of it the detention of the petitioner cannot be justified.
There is no other provision in 241 this law under which he can be detained for any period whatsoever.
It was argued that it was neither practicable nor possi ble to make a classification on any definite basis in the case of apprehended acts of persons whose activities are of a prejudicial character to the maintenance of public order or to the security of the State or to the defence of India.
This contention to my mind is not sound.
Such a classifica tion was made in the rules under the Defence of India Act by defining "a prejudicial act" in regulation 34.
Mere difficulty in precisely ascertaining the groups or in defin ing objectively the conduct of such groups is no ground for not complying with the clear provisions of the statute or for disobeying it.
I see no difficulty whatsoever if a serious effort was made to comply with the provisions of clause (7).
I cannot see that the compulsory requirement of an advisory board is likely to lead to such disastrous or calamitous results that in all cases or at least in five out of the six subjects of legislation it becomes necessary to dispense with this requirement.
The requirement of an advi sory board is in accordance with the preamble of the Consti tution and is the barest minimum that can make a law of preventive detention to some little degree tolerable to a democratic Constitution.
Such a law also may have some justification even without the requirement of an advisory board to meet certain defined dangerous situations or to deal with a class of people who are a danger to the State but without such limitation the law would be destructive of all notions of personal liberty.
The Constitution must be taken to have furnished an adequate safeguard to its citi zens when it laid down certain conditions in clause (7) and it could not be considered that it provided no safeguard to them at all and that the words used in clause (7) were merely illusory and had no real meaning.
Section 14 of Act IV of 1950 has been impugned on the ground that it contravenes and abridges the provisions of articles 22 (5) and 32 of the Constitution.
This section is in these terms: 242 "(1) No Court shall except for the purposes of a prose cution for an offence punishable under subsection (2), allow any statement to be made, or any evidence to be given, before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order, and notwithstanding anything con tained in any other law, no Court shall be entitled to require any public officer to produce before it, or to disclose the substance of, any such communication or repre sentation made, or the proceedings of an advisory board or that part of the report of an advisory board which is confi dential.
(2) It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" This section is in the nature of an iron curtain around the acts of the authority making the order of preventive detention.
The Constitution has guaranteed to the detained person the right to be told the grounds of detention.
He has been given a right to make a representation [vide arti cle 22 (5)], yet section 14 prohibits the disclosure of the grounds furnished to him or the contents of the representa tion made by him in a Court of law and makes a breach of this injunction punishable with imprisonment.
Article 32 (1) of the Constitution is in these terms : "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
" 243 Sub section (4) says : "The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitu tion." Now it is quite clear that if an authority passes an order of preventive detention for reasons not connected with any of the six subjects mentioned in the 7th Schedule, this Court can always declare the detention illegal and release the detenu, but it is not possible for this Court to func tion if there is a prohibition against disclosing the grounds which have been served upon him.
It is only by an examination of the grounds that it is possible to say wheth er the grounds fall within the ambit of the legislative power contained in the Constitution or are outside its scope.
Again something may be served on the detenu as being grounds which are not grounds at all.
In this contingency it is the right of the detained person under article 32 to move this Court for enforcing the right under article 22 (5) that he be given the real grounds on which the detention order is based.
This Court would be disabled from exercis ing its functions under article 32 and adjudicating on the point that the grounds given satisfy the requirements of the sub clause if it is not open to it to see the grounds that have been furnished.
It is a guaranteed right of the person detained to have the very grounds which are the basis of the order of detention.
This Court would be entitled to examine the matter and to see whether the grounds furnished are the grounds on the basis of which he has been detained or they contain some other vague or irrelevant material.
The whole purpose of furnishing a detained person with the grounds is to enable him to make a representation refuting these grounds and of proving his innocence.
In order that this Court may be able to safeguard this fundamental right and to grant him relief it is absolutely essential that the detenu is not prohibited under penalty of punishment to disclose the grounds to the Court and no injunction by law can be issued to this Court disabling it from having a look at the grounds.
Section 14 creates a substantive offence if the grounds are disclosed and it also lays a duty on the Court not 244 to permit the disclosure of such grounds.
It virtually amounts to a suspension of a guaranteed right provided by the Constitution inasmuch as it indirectly by a stringent provision makes administration of the law by this Court impossible and at the same time it deprives a detained person from obtaining justice from this Court.
In my opin ion, therefore, this section when it prohibits the disclo sure of the grounds contravenes or abridges the rights given by Part III to a citizen and is ultra vires the powers of Parliament to that extent.
The result of the above discussion is that, in my opin ion, sections 12 and 14 of Act IV of 1950 as above indicated are void and the decision of the detenu 's case has to be made by keeping out of sight these two provisions in the Act.
If sections 12 and 14 are deleted from the impugned legislation, then the result is that the detention of the petitioner is not legal.
The statute has not provided for detention for a period of three months or less in such cases as it could have done under article22 (4) of the Constitu tion and that being so, the petitioner cannot be justifia bly detained even for a period of three months.
I would accordingly order his release.
In view of the decision above arrived at I do not con sider it necessary to express any opinion on the other points that were argued at great length before us, namely, (1)what is 'the scope and true meaning of the expression "procedure established by law" in article 21 of the Consti tution, and (2) what is the precise scope of articles 19 (1) (d) and 19 (5)of the Constitution.
MUKHERJEA J. This is an application under article 32 of the Constitution praying for a writ of habeas corpus upon the respondents with a view to release the petitioner who, it is alleged, is being unlawfully detained in the Central Jail, Cuddalore, within the State of Madras.
The petitioner, it is said, was initially arrested in Malabar on 17th of December, 1947, and prosecution was started against him on various charges for having 245 delivered certain violent speeches.
While these criminal cases were going on, he was served with an order of deten tion under the Madras Maintenance of Public Order Act on 22nd April, 1948.
This order of detention was held to be illegal by the Madras High Court, but on the same day that the judgment was pronounced, a second order of detention was served upon him.
On his moving the High Court again for a writ of habeas corpus in respect to the subsequent order, his application was dismissed on the ground that as he was not granted bail in one of the three criminal cases that were pending against him, the detention could not be said to be unlawful.
Liberty, however, was given to him to renew his application if and when his detention under the criminal proceedings ceased.
In two out of the three criminal cases the trial before the magistrate ended on February 23, 1949, and the petitioner was sentenced to rigorous imprisonment for 6 months in each of the cases.
These sentences, however, were set aside in appeal on 26th September, 1949.
As re gards the third case, he was tried by the Sessions Judge of North Malabar and sentenced to rigorous imprisonment for 5 years but this sentence was reduced to 6 months ' imprison ment by the Madras High Court on appeal.
The petitioner made a fresh application to the High Court praying for a writ of habeas corpus in respect of his detention under the Madras Maintenance of Public Order Act and this application, which was heard after he had served out his sentences of imprisonment referred to above, was dismissed in January, 1950.
On 25th February, 1950, the was passed by the Parliament and on the 1st of March follow ing, the the detention of the applicant under the Madras Maintainance of Public Order Act was cancelled and he was served with a fresh order of detention under section 3 (1) of the .
On behalf of the respondents the detention of the petitioner is sought to be justified on the strength of the of 1950.
The position taken up on behalf of the petitioner on the other hand is that the said Act is invalid and ultra vires the conStitution by reason of its being in conflict with certain 246 fundamental rights which are guaranteed by the Constitution.
It is argued, therefore, that the detention of the peti tioner is invalid and that he should be set at liberty.
The contentions that have been but forward by Mr. Nambi ar who appeared in support of the petition, may be classi fied under four heads.
His first contention is that as preventive detention is, in substance, a restriction on the free movements of a person throughout the Indian territory, it comes within the purview of article 19 (1) (d) of Part III of the Constitution which lays down the fundamental rights.
Under clause (5) of the article, any restriction imposed upon this right of free movement must be reasonable and should be prescribed in the interests of the general public.
The question as to whether it is reasonable or not is a justiciable matter which is to be determined by the Court.
This being the legal position, the learned Counsel invites us to hold that the main provisions of the impugned Act, particularly those which are contained in sections 3, 7, 10, 11, 12, 13 and 14 are wholly unreasonable and should be invalidated on that ground.
The second contention advanced by the learned Counsel is that the impugned legislation is in conflict with the provi sion of article 21 of the Constitution inasmuch as it pro vides for deprivation of the personal liberty of a man not in accordance with a procedure established by law.
It is argued that the word 'law ' here does not mean or refer to any particular legislative enactment but it means the gener al law of the land, embodying those principles of natural justice ' with regard to procedure which are regarded as fundamental, in all systems of civilised jurisprudence.
It is conceded by the learned counsel that the proce dure, if any, with regard to preventive detention as has been prescribed by article 22 of the Constitution which itself finds a place in the chapter on Fundamental Rights must override those general rules of procedure which are contemplated by article 21 but with regard to matters for which no provision is made in article 22, the general provi sion made in article 21 247 must apply.
He has indicated in course of his arguments what the essentials of such procedure are and the other point specifically raised in this connection is that the provision of section 12 of the is in conflict with article 22 (7) of the Constitution.
The last argument in support of this application is that the provisions of sections 3 and 14 of the Preventive Deten tion Act are invalid as they take away and render completely nugatory the fundamental right to constitutional remedies as is provided for in article 32 of the Constitution.
In discussing these points it should be well to keep in mind the general scheme of the Indian Constitution relating to the protection of the fundamental rights of the citizens and the limitations imposed in this respect upon the legis lative powers of the Government.
The Constitution of India is a written Constitution and though it has adopted many of the principles of the English Parliamentary system, it has not accepted the English doctrine of the absolute supremacy of Parliament in matters of legislation.
In this respect it has followed the American Constitution and other systems modelled on it.
Notwithstanding the representative charac ter of their political institutions, the Americans regard the limitations imposed by their Constitution upon the action of the Government, both legislative and executive, as essential to the preservation of public and private rights.
They serve as a check upon what has been described as the despotism of the majority; and as was observed in the case of Hurtado vs The People of California (1) "a government which holds the lives, the liberty and the property of its citizens, subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism.
" In India it is the Constitution that is supreme and Parliament as well as the State Legislatures must not only act within the limits of their respective legislative spheres as demarcated in the three (1) ; 32 248 lists occuring in the Seventh Schedule to the Constitution, but Part III of the Constitution guarantees to the citizens certain fundamental rights which the legislative authority can on no account transgress.
A statute law to be valid must, in all cases, be in conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is unconstitutional or not.
Article 13 (2) is imperative on this point and provides expressly that the State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contra vention of this clause shall, to the extent of the contra vention, be void.
Clause (1) of the article similarly invalidates all existing laws which are inconsistent with the provisions of this Part of the Constitution.
The fundamental rights guaranteed by the Constitution have been classified under seven heads or categories.
They are: (1) Right to equality; (2) Right to freedom; (3) Right against exploitation; (4) Right to freedom of religion; (5) Cultural and educational rights; (6) Right to property; and (7) Right to constitutional remedy.
The arrangement differs in many respects from that adopted in the American Constitution and bears a likeness on certain points to similar declarations in the Constitutions of other countries.
Of the different classes of fundamental rights spoken of above, we are concerned here primarily with right to freedom which is dealt with in four articles beginning from article 19 and also with the right to constitutional remedy which is embodied in article 32.
Article 10 enumerates certain forms of liberty or free dom, the protection of which is guaranteed by the Constitu tion.
In article 20, certain protections are given in cases of persons accused of criminal offences.
Article 21 lays down in general terms that no person shall be deprived of his life or personal liberty, except 249 according to procedure established by law.
Article 22 pro vides for certain additional safeguards in respect to arrest and detention and by way of exception to the rules so made, makes certain special provisions for the particular form of detention known as Preventive Detention.
The first contention advanced by Mr. Nambiar involves a consideration of the question as to whether Preventive Detention, which is the subject matter of the impugned legislative enactment, comes within the purview of article 19 (1) (d) of the Constitution, according to which a right to move freely throughout the territory of India is one of the fundamental rights guaranteed to all citizens.
If it comes within that sub clause, it is not disputed that clause (5) of article 19 would be attracted to it and it would be for the courts to decide whether the restrictions imposed upon this right by the Parliament are reasonable restric tions and are within the permissible limits prescribed by clause (5) of the article.
There is no authoritative definition of the term 'Pre ventive Detention ' in Indian law, though as description of a topic of legislation it occurred in the Legislative Lists of the Government of India Act, 1935, and has been used in Item 9 of List I and Item 3 of List III in the Seventh Schedule to the Constitution.
The expression has its origin in the language used by Judges or the law Lords in England while explaining the nature of detention under Regulation 14 (B) of the Defence of Realm Consolidation Act, 1914, passed on the outbreak of the First World War; and the same lan guage was repeated in connection with the emergency regula tions made during the last World War.
The word ' preventive ' is used in contradistinction to the word ' punitive. ' To quote the words of Lord Finlay in Rex vs Halliday(1), "it is not a punitive but a precautionary measure.
" The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it.
No offence is proved, nor any charge formulated; and the justification of such detention is suspicion (1) ; at p. 269.
250 or reasonable probability and not criminal conviction which can only be warranted by legal evidence (1).
Detention in such form is unknown in America.
It was resorted to in England only during war time but no country in the world that I am aware of has made this an integral part of their Constitution as has been done in India.
This is undoubtedly unfortunate, but it is not our business to speculate on questions of policy or to attempt to explore the reasons which led the representatives of our people to make such a drastic provision in the Constitution itself, which cannot but be regarded as a most unwholesome encroachment upon the liberties of the people.
The detention of a man even as a precautionary measure certainly deprives him of his personal liberty, and as article 21 guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life and personal liberty, except in accordance with the procedure established by law, the requirements of article 21 would certainly have to be complied with, to make preventive detention valid in law.
What these requirements are I will discuss later on.
Article 22 comes immediately after arti cle 21.
It secures to all persons certain fundamental rights in relation to arrest and detention, and as already said, by way of exception to the rights thus declared, makes certain specific provisions relating to preventive deten tion.
The subject of preventive detention is specified in and constitutes Item No. 9 in the Union legislative List and it also forms Item No. 3 in the Concurrent List.
Under article 246 of the Constitution, the Parliament and the State Legislatures are empowered to legislate on this sub ject within the ambit of their respective authorities.
Clause(3) of article 22 expressly enjoins that the protec tive provisions of clauses (1) and (2) of the article would not be available to persons detained under any law providing for preventive detention.
The only fundamental rights which are guaranteed by the Constitution in the matter of preven tive detention and which to that extent impose restraints upon the exercise of legislative powers in that respect are (1) Vide Lord Macmillan in Liversidge vs Anderson ; at p. 254.
251 contained in clauses (4) to (7) of article 22.
Clause (4) lays down that no law of preventive detention shall autho rise the detention of a person for a period longer than three months, unless an advisory board constituted in the manner laid down in sub clause (a) of the clause has report ed before the expiration of the period that there is suffi cient cause for such detention.
The period of detention cannot, in any event, exceed the maximum which the Parlia ment is entitled to prescribe under clause (7) (b).
The Parliament is also given the authority to prescribe the circumstances and the class of cases under which a person can be detained for a period longer than three months under any law of preventive detention without obtaining the opin ion of the advisory board.
There is one safeguard provided for all cases which is contained in clause (5) and which lays down that the authority making the order of detention shall, as soon as possible communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
But even here, the authority while giving the grounds of detention need not disclose such facts which it considers against public interest to disclose.
The question that we have to consider is whether a law relating to preventive detention is justiciable in a Court of law on the ground of reasonableness under article 19 (5) of the Constitution inasmuch as it takes away or abridges the right to free movement in the territory of India guaran teed by clause (1) (d)of the article.
It will be seen from what has been said above that article 22 deals specifically with the subject of preventive detention and expressly takes away the fundamental rights relating to arrest and detention enumerated in clauses (1) and (2) of the article from per sons who are detained under any law which may be passed by the Parliament or State Legislatures acting under article 246 of the Constitution read with the relevant items in the legislative lists.
I will leave aside for the moment the question as to how far the court can examine the reasonable ness or otherwise of the procedure that is prescribed by any law relating 252 to preventive detention, for that would involve a considera tion of the precise scope and meaning of article.
21; but this much is beyond controversy that so far as substantive law is concerned, article 22 of the Constitution gives a clear authority to the legislature to take away the funda mental rights relating to arrest and detention, which are secured by the 'first two clauses of the article.
Any legis lation on the subject would only have to conform to the requirements of clauses (4) to (7) and provided that is done, there is nothing in the language employed nor in the context in which it appears which affords any ground for suggestion that such law must be reasonable in its character and that it would be reviewable by the Court on that ground.
Both articles 19 and 22 occur in the same Part of the Con stitution and both of them purport to lay down the fundamen tal rights which the Constitution guarantees.
It is well settled that the Constitution must be interpreted in a broad and liberal manner giving effect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers.
In interpreting the words of a Constitution, the same principles undoubtedly apply which are applicable in construing a statute, but as was observed by Lord Wright in James vs Commonwealth of Australia ( 1 ), "the ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex instrument in which one part may throw light on the other." "The Constitution," his Lordship went on saying, "has been described as the federal compact and the construction must hold a balance between all its parts.
" It seems to me that there is no conflict or repugnancy between the two provisions of the Constitution and an exami nation of the scheme and language of the catena of articles which deal with the rights to freedom would be sufficient to show that what clause (1) (d) of article 19 contemplates is not freedom from detention, either punitive or preventive; it relates to and speaks of a different aspect or phase of civil liberty.
(1) at p. 613.
253 Article 19, which is the first of this series of arti cles, enumerates seven varieties or forms of freedom begin ning with liberty of speech and expression and ending ' with free right to practise any trade, profession or business.
The rights declared it articles 19 to 22 do not certainly exhaust the whole list of liberties which people possess under law.
The object of the framers of the Constitution obviously is to enumerate and guarantee those forms of liberty which come under well known categories recognised by constitutional writers and are considered to be fundamental and of vital importance to the community.
There cannot be any such thing as absolute or uncon trolled liberty wholly freed from restraint, for that would lead to anarchy and disorder.
The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson vs Massachusetts (1), are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.
The question, therefore arises in each case of adjusting the conflicting interests of the individual and of the society.
In some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the interests of the society; on the other hand, social control which exists for public good has got to be restrained, lest it should be misused to the detriment of individual rights and liberties.
Ordinarily, every man has the liberty to order his life as he pleases, to say what he will, to go where he will, to follow any trade, occupation or calling at his pleasure and to do any other thing which he can lawfully do without let or hindrance by any other person.
On the other hand for the very protection of these liberties the society must arm itself with certain powers.
No man 's liberty would be worth its name if it can be violated with impunity by any wrong doer and if his property or possessions could be preyed upon by a thief or a marauder.
The society, therefore, has got to exercise certain powers for the protection of these liber ties and to arrest, search, imprison and (1) ; 254 punish those who break the law.
If these powers are ' prop erly exercised, they themselves are the safeguards of free dom, but they can certainly be abused.
The police may arrest any man and throw him into prison without assigning any reasons; they may search his belongings on the slightest pretext; he may be subjected to a sham trial and even pun ished for crimes unknown to law.
What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social control.
To me it seems that article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law, so that they may not conflict with public welfare or general morality.
On the other hand articles 20, 21 and 22 are primarily concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interests of the society and they set down the limits within which the State control should be exer cised.
Article 19 uses the expression ' 'freedom" and men tions the several forms and aspects of it which are secured to individuals, together with the limitations that could be placed upon them in the general interests of the society.
Articles 20, 21 and 22 on the other hand do not make use of the expression "freedom" and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty.
The right to the safety of one 's life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inher ent birthrights of a man.
The essence of these rights consists in restraining others from interfering with them and hence they cannot be described in terms of "freedom" to do particular things.
There is also no question of imposing limits on the activities of individuals so far as the exer cise of these rights is concerned.
For these reasons, I think, these rights have not been mentioned in article 19 of the Constitution.
An individual can be deprived of his life or personal liberty only by action 255 of the State, either under the provisions of any penal enactment or in the exercise of any other coercive process vested in it under law.
What the Constitution does there fore is to put restrictions upon the powers of the State, for protecting the rights of the individuals.
The re straints on State authority operate as guarantees of indi vidual freedom and secure to the people the enjoyment of life and personal liberty which are thus declared to be inviolable except in the manner indicated in these articles.
In my opinion, the group of articles 20 to 22 embody the entire protection guaranteed by the Constitution in relation to deprivation of life and personal liberty both with regard to substantive as well as to procedural law.
It is not correct to say, as I shah show more fully later on, that article 21 is confined to matters of procedure only.
There must be a substantive law, under which the State is empow ered to deprive a man of his life and personal liberty and such law must be a valid law which the legislature is compe tent to enact within the limits of the powers assigned to it and which does not transgress any of the fundamental rights that the Constitution lays down.
Thus a person cannot be convicted or punished under an ex post facto law, or a law which compels the accused to incriminate himself in a crimi nal trial or punishes him for the same offence more than once.
These are the protections provided for by article 20.
Again a law providing for arrest and detention must conform to the limitations prescribed by clauses (1) and (2) of article 22.
These provisions indeed have been withdrawn expressly in case of preventive detention and protections of much more feeble and attenuated character have been substi tuted in their place;but this is a question of the policy adopted by the Constitution which does not concern us at all.
The position, therefore, is that with regard to life and personal liberty, the Constitution guarantees protection to this extent that no man could be deprived of these rights except under a valid law passed by a competent legislature within the limits mentioned above and in accordance with the procedure which such law lays down.
Article 19, on the other hand, 256 enunciates certain particular forms of civil liberty quite independently of the rights dealt with under article 21.
Most of them may be connected with or dependent upon person al liberty but are not identical with it; and the purpose of article 19 is to indicate the limits within which the State could, by legislation, impose restrictions on the exercise of these rights by the individuals.
The reasonableness or otherwise of such legislation can indeed be determined by the Court to the extent laid down in the several clauses of article 19, though no such review is permissible with regard to laws relating to deprivation of life and personal liber ty.
This may be due to the fact that life and personal freedom constitute the most vital and essential rights which people enjoy under any State and in such matters the pre cise and definite expression of the intention of the legislature has been preferred by the Constitution to the variable standards which the judiciary might lay down.
We find the rights relating to personal liberty being de clared almost in the same terms in the Irish Consti tution article 40 (1) (4) (1) of which lays down that "no citizen shall be deprived of his personal liberty save in accordance with law.
" In the Constitution of the Free City of Danzig, "the liberty of the person has been declared to be inviolable and no limitation or deprivation of personal liberty may be imposed by public authority except by virtue of a law" (vide article 74).
Article 31 of the Japanese Constitution is the closest parallel to article 21 of the Indian Constitution and the language is almost identical.
This is the scheme adopted by the Constitution in dealing with the rights to freedom described in the chapter on fundamental rights and in my opinion, therefore, the proper test for determining the validity of an enactment under which a person is sought to be deprived of his life and personal liberty has to be found not in article 19, but in the three following articles of the Constitution.
Article 20 of course has no application so far as the law relating to preventive detention is concerned.
Mr. Nambiar 's endeavour throughout has been to 257 establish that article 19 (1) (d) of the Constitution read with article 19 (5) enunciates the fundamental rights of the citizens regarding the substantive law of personal liberty, while article 21 embodies the protection as regards proce dural law.
This, in my opinion, would be looking at these provisions from a wrong angle altogether.
Article 19 cannot be said to deal with substantive law merely, nor article 21 with mere matters of procedure.
It cannot also be said that the provisions of article 19 (1) (d) read with clause (5) and article 21 are complementary to each other.
The con tents and subject matter of the two provisions are not identical and they proceed on totally different princi ples.
There is no mention of any "right to life" in article 19, although that is the primary and the most important thing for which provision is made in article 21.
If the contention of the learned counsel is correct, we would have to hold that no protection is guaranteed by the Constitution as regards right to life so far substantive law is con cerned.
In the second place, even if freedom of movement may be regarded as one of the ingredients of personal liberty, surely there are other elements included in the concept and admittedly no provision for other forms of personal liberty are to be found in article 19 (5) of the Constitution.
Furthermore article 19 is applicable to citizens only, while the rights guaranteed by article 21 are for all per sons.
citizens as well as aliens.
The only proper way of avoiding these anomalies is to interpret the two provisions as applying to different subjects and this would be the right conclusion if we have in mind the scheme which under lies this group of articles.
I will now turn to the language of article 19 (1) (d) and see whether preventive detention really comes within its purview.
Article 19 (1) (d) provides that all citizens shall have the right to move freely throughout the territory of India.
The two sub clauses which come immediately after sub clause (d) and are intimately connected with it, are in these terms: "(e) To reside and settle in any part of the territory of India; 258 (f) to acquire, hold and dispose of property." Clause (5)relates to all these three sub clauses and lays down that nothing in them shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clause either in the interests of the general public or for the protection of the interests of any scheduled tribe.
I agree with the learned Attorney General that in con struing article 19 (1) (d) stress is to be laid upon the expression "throughout the territory of India," and it is a particular and special kind of right, viz., that of free movement throughout the Indian territory, that is the aim and object of the Constitution to secure.
In the next sub clause, right tO reside and settle "in any part of the territory of India" is given and here again the material thing is not the right of residence or settlement but the right to reside or settle in any part of the Indian territo ry.
For an analogous provision, we may refer to article 301 which says that subject to the other provisions of this Part, commerce and intercourse throughout the territory of India shall be free.
The meaning of sub clause (d) of arti cle 19 (1) will be clear if we take it along with sub clauses (e) and (f), all of which have been lumped together in clause (5) and to all of which the same restrictions including those relating to protecion of the interest of any scheduled tribe have been made applicable.
It will be remembered that these rights are available only to citizens.
To an alien or foreigner, no guarantee of such rights has been given.
Normally all citizens would have the free right to move from one part of the Indian territory to another.
They can shift their residence from one place to any other place of their choice and settle anywhere they like.
The right of free trade, commerce and intercourse throughout the territory of India is also secured.
What the Constitu tion emphasises upon by guaranteeing these rights is that the whole of Indian Unian in spite of its being divided into a number of States is really one unit as far as the citizens of the Union are concerned.
All the 259 citizens would have the same privileges and the same facilities for moving into any part of the territory and they can reside or carry on business anywhere they like; and no restrictions either inter State or otherwise would be allowed to set up in these respects between one part of India and another.
So far as free movement throughout the territory is concerned, the right is subject to the provision of clause (5), under which reasonable limitation may be imposed upon these liberties in the interests of the general public or protection of any scheduled tribe.
The interests of the public which necessitates such restrictions may be of var ious kinds.
They may be connected with the avoidance of pestilence or spreading of contagious diseases; certain places 'again may be kept closed for military purposes and there may be prohibition of entry into areas which are actual or potential war zones or where disturbances of some kind or other prevail.
Whatever the reasons might be, it is necessary that these restrictions must be reasonable, that is to say, commensurate with the purpose for which they are laid down.
In addition to general interest, the Constitu tion has specified the protection of the interests of the scheduled tribes as one of the factors which has got to be taken into consideration in the framing of these restric tions.
The scheduled tribes, as is well known, are a back ward and unsophisticated class of people who are liable to be imposed upon by shrewd and designing persons.
Hence there are various provisions disabling them from alienating even their own properties except under special conditions.
In their interest and for their benefit, laws may be made restricting the ordinary right of citizens to go or settle in particular areas or acquire property in them.
The refer ence to the interest of scheduled tribe makes it quite clear that the free movement spoken of in the clause relates not to general rights of locomotion but to the particular right of shifting or moving from one part of the Indian territory to another, without any sort of discriminatory barriers.
This view will receive further support if we look to some analogous provisions ,in the Constitution of 260 other countries.
It will be seen that sub clauses (d) (e) and (f)of article 19 (1) are embodied in almost identical language in one single article, viz., article 75 of the Constitution of the Free City of Danzig.
The article runs as follows: "All nationals shall enjoy freedom of movement within the free city and shall have the right to stay and to settle at any place they may choose, to acquire real property and to earn their living in any way.
This right shall not be curtailed without legal sanctions.
" The several rights are thus mentioned together as being included in the same category, while they are differentiated from the "liberty of the person" which is "described to be inviolable except by virtue of a law" in article 74 which appears just previous to this article.
An analogous provi sion in slightly altered language occurs in article 111 of the Constitution of the German Reich which is worded in the following manner: All Germans enjoy the right of change of domicile within the whole Reich.
Every one has the right to stay in any part of the Realm that he chooses, t6 settle there, acquire landed property and pursue any means of livelihood.
" Here again the right to personal liberty has been dealt with separately in article 114.
A suggestion was made in course of our discussions that the expression "throughout the territory of India" occurring in article 19 (1) (d) might have been used with a view to save Passport Regulations or to emphasise that no rights of free emigration are guaran teed by the Constitution.
The suggestion does not seem to me to be proper.
No State can guarantee to its citizens the.
free right to do anything outside its own territory.
This is true of all the fundamental rights men tioned in article 19 and not merely of the right of free movement.
Further it seems to me that the words "throughout the territory of India" have nothing to do with rights of emigration.
We find that both in the Danzig as well as in the German Constitution, where similar words have been used with regard to the excercise of the right of free movement throughout the.
261 territory, there are specific provisions which guarantee to all nationals the free right of emigration to other coun tries (vide article 76 of the Danzig Constitution and arti cle 112 of the Constitution of the German Reich).
In my opinion, therefore, preventive detention does not come either within the express language or within the spirit and intendment of clause (1) (d) of article 19 of the Constitu tion which deals with a totally different aspect or form of civil liberty.
It is true that by reason of preventive detention, a man may be prevented from exercising the right of free movement within the territory of India as contemplated by article 19 (1) (d) of the Constitution, but that is merely incidental to or consequential upon loss of liberty resulting from the order of detention.
Not merely the right under clause (1) (d), but many of the other rights which are enumerated under the other sub clauses of article 19 (1) may be lost or suspended so long as preventive detention continues.
Thus a detenu so long as he is under detention may not be able to practise any profession, or carry on any trade or business which he might like to do; but this would not make the law providing for preventive detention a legislation taking away or abridging the rights under article 19 (1) (g) of the Constitution and it would be absurd to suggest that in such cases the validity of the legislation should be tested in accordance with the requirement of clause (6) of article 19 'and that the only restrictions that could be placed upon the person 's free exercise of trade and profession are those specified in that clause.
Mr. Nambiar concedes that in such cases we must look to the substance of the particular legis lation and the mere fact that it incidentally trenches upon some other right to which it does not directly relate is not material.
He argues, however, that the essence or substance of a legislation which provides for preventive detention is to take away or curtail the right of free move ments and in fact, "personal liberty" according to him, connotes nothing else but unrestricted right of locomotion.
The learned counsel refers in this connection to certain passages in Blackstone 's Commentaries on the Laws of Eng land, where 262 the author discusses what he calls the three absoluterights inherent in every Englishman, namely, rights of personal security, personal liberty and property.
"Personal security", according to Blackstone, consists in a person 's legal and uninterrupted enjoyment of his life, his limb, his body, his health and his reputation; whereas "personal liberty" consists in the power of locomotion, of changing of situation or moving one 's person to whatsoever place one 's own inclination may direct without imprisonment or restraint unless by due course of law (1).
It will be seen that Blackstone uses the expression "personal liberty" in a somewhat narrow and restricted sense.
A much wider and larger connotation is given to it by later writers on con stitutional documents, particularly in America.
In ordinary language "personal liberty" means liberty relating to or concerning the person or body of the individual; and "per sonal liberty" in this sense is the antithesis of physical restraint or coercion.
According to Dicey, who is an acknowledged authority on the subject "personal liberty" means a personal right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification(2).
It is, in my opinion, this negative right of not being subjected to any form of physical restraint or coercion that constitutes the essence of personal liberty and not mere freedom to move to any part of the Indian territory.
In this connection, it may not be irrelevant to.
point out that it was in accordance with the recommendation of the 'Drafting Committee that the word "personal" was inserted before "liberty" in article 15 of the Constitution which now stands as article 21.
In the report of the Drafting Commit tee it is stated that the word "liberty" should be quali fied by the insertion of the word "personal" before it; otherwise, it might be construed very widely so as to in clude even the freedoms already dealt with in article 13.
Article.
13, it should be noted, is the present article 19.
If the views of the Drafting Committee were accepted by the (1) Vide Chase 's Blackstone, 4th Edn, pp. 68, 73.
(2) Vide Dicey on Constitutional Law, 9th Edn, pp.
207 208.
263 Constituent Assembly, the intention obviously was to exclude the contents of article 19.
from the concept of "personal liberty" as used in article 21.
To what extent the meaning of words used in the Constitution could be discovered from reports of Drafting Committee or debates on the floor of the House is a matter not quite free from doubt and I may have to take up this matter later on when discussing the meaning of the material clause in article 21 of the Constitution.
It is enough to say at this stage that if the report of the Drafting Committee is an appropriate material upon which the interpretation of the words of the Constitution could be based, it certainly goes against the contention of the applicant and it shows that the words used in article 19 (1) (d) of the Constitution do not mean the same thing as the expression "personal liberty" in article 21 does.
It is well known that the word " 'liberty" standing by itself has been given a very wide meaning by the Supreme Court of the United States of America.
It includes not only personal freedom from physical restraint but the right to the free use of one 's own property and to enter into free contractual relations, In the Indian Constitution, on the other hand, the expression "personal liberty" has been deliberately used to restrict it to freedom from physical restraint of person by incarceration or otherwise.
Apart from the report of the Drafting Committee, that is the plain grammatical meaning of the expression as I have already explained.
It may not, I think, be quite accurate to state that the operation of article 19 of the Constitution is limited to free citizens only and that the rights have been described in that article on the presupposition that the citizens are at liberty.
The deprivation of personal liberty may entail as a consequence the loss or abridgement of many of the rights described in article 19, but that is because the nature of these rights is such that free exercise of them is not possible in the absence of personal liberty.
On the other hand, the right to hold and dispose of property which is in subclause (f) of article 19 (1) and which is not dependent on full possession of personal liberty by the owner may 264 not be affected if the owner is imprisoned or detained.
Anyway, the point is not of much importance for purposes of the present discussion.
The result is that, in my opinion, the first contention raised by Mr. Nambiar cannot succeed and it must be held that we are not entitled to examine the reasonableness or otherwise of the and see whether it is within the permissible bounds specified in clause (5) of article 19.
I now come to the second point raised by Mr. Nambiar in support of the application; and upon this point we had arguments of a most elaborate nature addressed to us by the learned counsel on both sides, displaying a considerable amount of learning and research.
The point, however, is a short one and turns upon the interpretation to be put upon article 21 of the Constitution, which lays down that "no person shall be deprived of his . . personal liberty, except according to procedure established by law.
" On a plain reading of the article the meaning seems to be that you cannot deprive a man of his personal liberty, unless you follow and act according to the law which provides for deprivation of such liberty.
The expression "procedure" means the manner and form of enforcing the law.
In my opinion, it cannot be disputed that in order that there may be a legally established procedure, the law which establish es it must be a valid and lawful law which the legislature is competent to enact in accordance with article 245 of the Constitution and the particular items in the legislative lists which it relates to.
It is also not disputed that such law must not offend against the fundamental rights which are declared in Part III of the Constitution.
The position taken up by the learned Attorney General is that as in the present case there is no doubt about the competency of that Parliament to enact the law relating to preventive detention which is fully covered by Item 9 of List I, and Item 3 of List III, and as no question of the law being reasonable or otherwise arises for consideration by reason of the fact that article 19 (1) (d) is not attracted to this case, the law must be held to be a valid piece of legisla tion and if the procedure 265 laid down by it has been adhered to, the validity of the detention cannot possibly be challenged.
His further argu ment is that article 22 specifically provides for preventive detention and lays down fully what the requirements of a legislation on the subject should be.
As the impugned Act conforms to the requirements of article 22, no further ques tion of its validity under article 21 of the Constitution at all arises.
The latter aspect of his arguments, I will deal with later on.
So far as the main argument is concerned,the position taken up by Mr. Nambiar is that article 21 refers to 'procedure only and not to substan tive law the procedure, however, must be one which is established by law.
The expression "law" in this context does not mean or signify, according to the learned counsel, any particular law enacted by the legislature in conformity with the requirements of the Constitu tion or otherwise possessing a binding authority.
It refers to law in the abstract or general sense in the sense of jus and not lex and meaning thereby the legal principles or fundamental rules that lie at the root of every system of positive law including our own, and the authority of which is acknowledged in the jurisprudence of all civilised coun tries.
It is argued that if the word "law" is interpret ed in the sense of any State made law, article 21 could not rank as a fundamental right imposing a check or limitation on the legislative authority of the Government.
It will be always competent to the legislature to pass a law laying down a thoroughly arbitrary and irrational procedure opposed to all elementary principles of justice and fairness and the people would have no protection whatsoever, provided such procedure was scrupulously adhered to.
In support of this argument the learned counsel has relied upon a large number of American cases, where the Supreme Court of America ap plied the doctrine of "due process of law" as it appears in the American Constitution for the purpose of invalidating various legislative enactments which appeared to that Court to be capricious and arbitrary and opposed to the fundamen tal principles of law.
266 It may be noted here that in the original draft of the Indian Constitution the words used in article 15 (which now stands as article 21) were "in accordance with due process of law." The Drafting Committee recommended that in place of the "due process" clause, the expression "according to procedure established by law" should be substituted.
The present article 21 seems to have been modeled on article 31 of the Japanese Constitution, where the language employed is "no person shall be deprived of 'life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Mr. Nambiar argues that the expression "procedure established by law" in article 21 of the Constitution bears the same meaning as the "due process" clause does in America, restricted only to this extent, viz., that it is limited to matters of procedure and does not extend to questions of substantive law.
To appre ciate the arguments that have been advanced for and against this view and to fix the precise meaning that is to be given to this clause in article 21, it would be necessary to discuss briefly the conception of the doctrine of "due process of law" as it appears in the American Constitution and the way in which it has been developed and applied by the Supreme Court of America.
In the history of Anglo American law, the concept of "due process of law" or what is considered to be its equiva lent "law of the land" traces its lineage far back into the beginning of the 13th century A.D.
The famous 39th chapter of the Magna Charta provides that "no free man shall be taken or imprisoned or disseized, or outlawed or exiled or in any way destroyed; nor shall we go upon him nor send upon him but by the lawful judgment of his peers and by the law of the land." Magna Charta as a charter of English liberty was confirmed by successive English monarchs and it is in one of these confirmations (28 Ed.
III, Chap.
3) known as "Statute of Westminster of the liberties of London", that the expression "due process of law" for the first time appears.
Neither of these phrases was explained or defined in any of the 267 documents, but on the authority of Sir Edward Coke it may be said that both the expressions have the same meaning.
In substance, they guaranteed that persons should not be imprisoned without proper indictment and trial by peers, and that property should not be seized except in proceedings conducted in due form in which the owner or the person in possession should have an opportunity to show cause why seizure should not be made (1).
These concepts came into America as part of the rights of Englishmen claimed by the colonists.
The expression in one form or other appeared in some of the earlier State Constitutions and the exact phrase "due process of law" came to be a part of the Federal Constitution by the Fifth Amendment which was adopted in 1791 and which provided that "no person shall. be deprived of life, liberty or property without due process of law.
" It was imposed upon the State Constitution in almost identical language by the Fourteenth Amendment in the year 1868.
What "due process of law" exactly means is difficult to define even at the present day, The Constitution contains no description of what is "due process of law" nor does it declare the principles by application of which it could be ascertained.
In Twining vs New Jersey (2) the Court ob served: "Few phrases in the law are so elusive of exact appre hension as this.
This COurt has always declined to give a comprehensive definition of it and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise.
" It is clear, however, that the requirement of "due process of law" in the United States Constitution imposes a limitation upon all the powers of Government, legislative as well as executive and judicial.
Applied in England only as protection against executive usurpation and royal tyranny, in America it became a bulwark against arbitrary legislation (3).
(1) Vide Willoughby on the Constitution of the United States, Vol.
III, p. 1087.
(2) (3) Vide Hurtando vs People of California, ; at p. 532.
268 As it is a restraint upon the legislative power and the object is to protect citizens against arbitrary and capri cious legislation, it is not within the competence of the Congress to make any process a "due process of law" by its mere will; for that would make the limitation quite nugato ry.
As laid down in the case cited above, "it is not any act legislative in form that is law; law is something more than mere will exerted as an act of power.
" It means and signifies the general law of the land, the settled and abid ing principles which inhere in the Constitution and lie at the root of the entire legal system.
To quote the words of Daniel Webster in a famous argument before.the Supreme Court (1): "By the law of the land is most clearly intended the general law a law which hears before it condemns, which proceeds upon enquiry and renders judgment only after trial.
The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.
" What these principles of general law are nobody has ever attempted to enumerate.
To a large extent they are the principles of English common law and modes of judicial pro ceedings obtaining in England, the traditions of which came along with the settlers in America.
Some Judges seem to have alluded to the principles of natural justice in ex plaining what is meant by general law or "law of the land," though the doctrine of a law of nature did not obtain a firm footing at any time.
In Wynehamer vs New York (2), Justice Hubbard declared himself opposed to the judiciary attempting to set bounds to the legislative authority or declaring a statute invalid upon any fanciful theory of 'higher law or first principles of natural right outside of the Constitu tion.
Coke 's dictum of a supreme fundamental law which obviously referred to principles of English common law cer tainly did exercise considerable influence upon the minds of the American Judges (3) and there are observations in some cases (1) Darmouth College case, 4 Wheaton p. 518.
(2) (3) Willis on Constitutional Law, p. 647.
269 which go to suggest that the principles of natural justice were regarded as identical with those of common law, except where the rules of common law were not considered to be of fundamental character or were not acted upon as being un suited to the progress of time or conditions of the American Society (1).
In the case of Loan Association vs Topeka (2), it was observed that there are limitations upon powers of Government which grow out of the essential nature of free Governments implied reservations of individual rights without which the social compact could not exist and which are respected by all Governments entitled to the name.
What is hinted at, is undoubtedly the old idea of a social com pact under which political institutions were supposed to come into being; and the suggestion is that when the Ameri cans formed themselves into a State by surrendering a por tion of their rights which they possessed at that time and which presumably they inherited from their English ancestors, there were certain rights of a fundamental character still reserved by them which no State could possibly take away.
As has been said already, "due process of law" has never been defined by Judges or Jurists in America.
The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs (3).
In the actual application of the clause relating to "due process of law" to particular cases the decisions of the Supreme Court of America present certain peculiar and unusu al features and there is total lack of uniformity and consistency in them.
Ever since the appearance of the clause in the Fifth Amendment and down to the middle of the 19th century, it was interpreted as a restriction on proce dure, and particularly the judicial procedure, by which the Government (1) Cooley 's Constitutional Limitations, Vol.
II, p. 73940.
(2) 20 Wall, p. 655.
(3) Cooley 's Constitutional Limita tions, Vol.
II, p. 741.
270 exercises its powers.
Principally it related to the proce dure by which persons were tried for crimes and guaranteed to accused persons the right to have a fair trial in compli ance with well established criminal proceedings.
The same principle applied to the machinery or proceeding by which property rights were adjudicated and by which the powers of eminent domain and taxation were exercised.
During this period it was not considered to have any bearing on substan tial law at all.
Change, however, came in and the period that followed witnessed a growing recognition of the doctrine that sub stantive rights of life, liberty and property are protected by the requirement of due process of law against any depri vation attempted at by legislative authority; and the polit ical and economic conditions of the country accounted to a great extent for this change in judicial outlook.
The close of the civil war brought in a new period of industrial development leading to accumulation of large capital in the hands of industrialists and the emergence of a definite labouring class.
New and important problems arose which the States attempted to deal with by various laws and regu lations.
Some of them seem to have been ill advised and arbitrary and there was a clamour amongst businessmen against what they described as legislative encroachments upon their vested private rights.
The Supreme Court now began to use the rule of due process of law as a direct restraint upon substantial legislation and any statute or administrative act, which imposed a limitation upon rights of private property or free contractual relations between the employers and employed, was invalidated as not being in accordance with due process of law (1).
What constituted a legitimate exercise of the powers of legislation now came to be a judicial question and no statute was valid unless it was.
reasonable in the opinion of the Court.
The question of reasonableness obviously depends largely upon the.
ideas of particular individuals and the Courts or rather the majority of Judges thus marshalled their own (1) Vide Encyclopaedia of the Social Sciences, Vol.
V, pp. 265 67.
271 views of social and economic policy in deciding the reasona bleness or otherwise of the statutes.
In the language of a well known writer, the Courts became a kind of negative third chamber both to the State Legislatures and the Con gress(1).
To what extent the Courts laid stress upon the doctrine of freedom of contract is illustrated in the case of Lochner vs New York(2).
In that case the question arose as to the validity of a labour legislation which prohibited the employment of persons in certain fields of activity for more than 60 hours a week.
Lochner was indicted for violat ing this law by employing a man in his Biscuit and Cake Factory who was to work more than 60 hours in a week.
The Court by a majority of 5 to 4 held the statute to be invalid on the ground that the "right to purchase or sell labour is part of the liberty protected by the Amendment unless there are circumstances which excluded the right.
" That decision has been criticized not merely on the ground that it rested upon an economic theory which to quote the language of Holmes J., who was one of the dissentient Judges "was not entertained by a large part of the country;" but it ignored that such regulation was necessary for protecting the health of the employees, that is to say, it was in substance an exercise of police powers with a view to accomplish some object of public interest(s).
It may be mentioned here that while the due process doctrine was being extended by judicial pronouncements, the doctrine of police power which operates to some extent as a check upon the "due process" clause was simultaneously gaining importance.
Roughly speaking, police power may be defined as "a right of a Government to regulate the conduct of its people in the interests of public safety, health, morals and convenience.
Under this authority, a Government may make regulations concerning the safety of building, the regulation of traffic, the reporting of incurable diseases, the inspection of markets, the sanitation of factories, the hours of work for women (1) Vide Kelley and Harbinson on the American Constitution, p. 539. 198 u.s. 45.
Vide Willoughby on the Constitution of the U.S., Vol.
III, p. 271.
272 and children, the sale of intoxicants and such other matters ,,(1).
Here again, the extent to which the Court can inter fere with exercise of police powers by the State has not been clearly defined by judicial pronouncements.
The doc trine generally accepted is that although any enactment by legislature under the guise of exercise of police powers would not necessarily be constitutional, yet if the regula tion has a direct relation to its proposed object which is the accomplishment of some legitimate public purpose, the wisdom or policy of the legislation should not be examined by the Courts.
The rule is not without its exceptions but it is not necessary to elaborate them for our present pur pose(2).
The later decisions, though not quite uniform, reveal the growing influence of the police power doctrine.
It may be said that since 1936 there has been a definite swing of the judicial pendulum in the other direction.
In the case of West Coast Hotel Company vs Parrish(3) which related to the legality of a Statute for regulating the minimum wages of women, Chief Justice Hughes, who delivered the opinion of the Court, observed as follows: "In each case the violation alleged by those attack ing minimum wage regulation for women is deprivation of freedom of contract.
What is the freedom? The Constitution does not speak of freedom of contract.
It speaks of liberty and prohibits the deprivation of liberty without due process of law.
In prohibiting that deprivation the Constitution does not recognise an absolute and uncontrol lable liberty.
Liberty in each of its phases has its histo ry and connotation.
But the liberty safeguarded is liberty in a social organisation which requires the protection of law.
against the evils which menace the health, safety, morals and welfare of the people.
" In the succeeding years the indications certainly are that the requirement of due process of law as a substantial restriction on Government control is becoming a thing of the past and the rule is being restricted more (1) Vide Munroe The Government of the U.S., p. 522.
(2) Vide Willoughby on the Constitution of the U.S. Vol.
III, pp.
1709 70.
(3) ; 273 and more to its original procedural meaning.
What will happen in future cannot certainly be predicted at this stage(1).
Thus it will be seen that the "due process" clause in the American Constitution came to be used as a potent in strument in the hands of the judiciary for exercising con trol over social legislation.
The judicial pronouncements are not guided by any uniform principle, and the economic and social ideas of the Judges, who form the majority in the Supreme Court for the time being, constitute, so to say, the yard stick for measuring the reasonableness or otherwise of any enactment passed during that period.
No writer of American Constitutional Law has been able uptil now to evolve anything like a definite and consistent set of prin ciples out of the large mass of cases, where the doctrine of "due process of law" has been invoked or applied.
It is against this background that we must consider how the constitution makers in India dealt with and gave final shape to the provisions, on an analogous subject in the Indian Constitution.
In the Draft Constitution, article 15 (which now stands as article 21) was apparently framed on the basis of the 5th and 14th Amendments in the American Constitution.
The article was worded as follows: "No person shall be deprived of his life or liberty without due process of law.
" The Drafting Committee in their report recommended a change in the language of this article.
The first sugges tion was that the word "personal" shall be inserted before the word "liberty" and the second was that the expression "in accordance with procedure established by law" shall be substituted for "due process of law," the reason given being that the former expression was more specific.
The learned Attorney General has placed before us the debates in the Constituent Assembly centering round the adoption of this recommendation of the Drafting Committee and he has referred us to the (1) Swisher The Growth of Constitutional Power in the United States, pp. 123 25.
274 speeches of several members of the Assembly who played an important part in the shaping of the Constitution.
As an aid to discover the meaning of the words in a Consti tution, these debates are of doubtful value. ' 'Resort can be had to them" ' says Willoughby, ' 'with great caution and only when latent ambiguities are to be solved.
The proceed ings may be of some value when they clearly point out the purpose of the provision.
But when the question is of ab stract meaning, it will be difficult to derive from this source much material assistance in interpretation"(1).
The learned Attorney General concedes that these debates are not admissible to explain the meaning of the words used and he wanted to use them only for the purpose of showing that the Constituent Assembly when they finally adopted the recommendation of the Drafting Committee, were fully aware of the implications of the differences between the old form of expression and the new.
In my opinion, in interpreting the Constitution, it will be better if such extrinsic evi dence is left out of account.
In matters like this, differ ent members act upon different impulses and from different motives and it is quite possible that some members accepted certain words in a particular sense, while others took them in a different light.
The report of the Drafting Committee, however,has been relied upon by both parties and there are decided authori ties in which a higher value has been attached to such reports than the debates on the floor of the House.
In Caminetti vs United States (2), it is said that reports to Congress accompanying the introduction of proposed law may aid the Courts in reaching the true meaning of the legisla tion in case of doubtful interpretation.
The report is extremely short.
It simply says that the reason for the suggested change is to make the thing more specific.
I have no doubt in my mind that if the "due process" clause which appeared in the original draft was finally retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian (1) Vide Willoughby on the Constitution of the United States, p. 64.
(2) ; 275 Constitution wanted that expression to bear the same sense as it does in America.
But when that form was abandoned and another was deliberately substituted in its place, it is not possible to say that in spite of the difference in the language and expression, they should mean the same thing and convey the same idea.
Mr. Nambiar 's contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject, the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way, namely, that instead of being extended over the whole sphere of law, substantive as well as adjective, it was limited to procedural law mere ly.
That is the reason, he says, why instead of the word "process" the expression "procedure" was adopted, but the word "law" means the same thing as it does in the "due process" clause in America and refers not to any State made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice.
Attractive though this argument might at first sight appear, I do not think that it would be possible to accept it as sound.
In the first place, it is quite clear that the framers of the Indian Constitution did not desire to intro duce into our system the elements of uncertainty, vagueness and changeability that have grown round the "due process" doctrine in America.
They wanted to make the provision clear, definite and precise and deliberately chose the words" procedure established by law," as in their opinion no doubts would ordinarily arise about the meaning of this expression.
The indefiniteness in the application of the "due process" doctrine in America has nothing to do with the distinction between substantive and procedural law.
The uncertainty and elasticity are in the doctrine itself which is a sort of hidden mine, the contents of which nobody knows and is merely revealed from time to time to the.
judicial conscience of the Judges.
This theory, the Indian Constitu tion deliberately discarded 276 and that is why they substituted a different form in its place which, according to them, was more specific.
In the second place, it appears to me that when the same words are not used, it will be against the ordinary canons of con struction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the Constitution of another country, where not only the language is different, but the entire political conditions and constitutional set up are dissimi lar.
In the Supreme Court of America, stress has been laid uniformly upon the word "due" which occurs before and quali fies the expression "process of law.
" "Due" means " what is just and proper" according to the circumstances of a particular case.
It is this word which introduces the varia ble element in the application of the doctrine; for what is reasonable in one set of circumstances may not be so in another and a different set.
In the Indian Constitution the word "due" has been deliberately omitted and this shows clearly that the Constitution makers of India had no inten tion of introducing the American doctrine.
The word "estab lished" ordinarily means "fixed or laid down" and if "law" means, as Mr. Nambiar contends, not any particular piece of law but the indefinite and indefinable principles of natural justice which underlie positive systems of law, it would not at all be appropriate to use the expression "established," for natural law or natural justice cannot establish anything like a definite procedure.
It does not appear that in any part of the Constitution the word "law" has been used in the sense of "general law" connoting what has been described as the principles of natural justice outside the realm of positive law.
On the other hand, the provision of ' article 31 of the Constitu tion, which appears in the. chapter on Fundamental Rights, makes it clear that the word "law" is equivalent to State made law and to deprive a person of his property, the au thority or sanction of such law is necessary.
As has been said already, the provision of article 21 of.
the Indian Constitution reproduces, save in one particular, the 277 language of article 31 of the Japanese Constitution and it is quite clear from the scheme and provisions of the Japa nese Constitution that in speaking of law it refers to law passed or recognised as such by the State.
In the Irish Constitution also, there is provision in almost similar language which conveys the same idea.
Article 40 (4) (1) provides that "no citizen shall be deprived of his personal liberty save in accordance with law," and by law is certain ly meant the law of the State.
Possibly the strongest argument in support of Mr. Nambi ar 's contention is that if law is taken to mean State made law, then article 21 would not be a restriction on legisla tion at all.
No question of passing any law abridging the right conferred by this article could possibly arise and article 13 (2) of the Constitution would have no operation so far as this provision is concerned.
To quote the words of an American Judge it would sound very much like the Constitution speaking to the legislature that the latter could not infringe the right created by these articles unless it chose to do so (1).
Apparently this is a plausible argument but it must be admitted that we are not concerned with the policy of the Constitution.
The fundamental rights not merely impose limitations upon the legislature, but they serve as checks on the exercise of executive powers as well, and in the matter of depriving a man of his personal liberty, checks on the high handedness of the executive in the shape of pre venting them from taking any step, which is not in accord ance with law, could certainly rank as fundamental rights.
In the Constitutions of various other countries, the provi sions relating to protection of personal liberty are couched very much in the same language as in article 21.
It is all a question of policy as to whether the legislature or the judiciary would have the final say in such matters and the Constitution makers of India deliberately decided to place these powers in the hands of the legislature.
Article 31 of the Japanese Constitution, upon which article 21 of our Constitution is modelled, also (1) Vide per Bronson 5.
in Taylor vs Porte 4 Hill 1<0.
278 proceeds upon the same principle.
The Japanese Constitu tion, it is to be noted, guarantees at the same.
time other rights in regard to arrest, detention and access to Court which might serve as checks on legislative authority as well.
Thus article 32 provides: "No person shall be denied the right of access to the Courts.
" Article 34 lays down: "No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel, nor shall he be detained without adequate cause; and upon demand of any person, such cause must be immediately shown in open Court in his presence and in the.
presence of his counsel.
" It was probably on the analogy of article 34 of the Japanese Constitution that the first two clauses of article 22 of the Indian Constitution were framed.
Article 22 was not in the original Draft Constitution at all; and after the "due process" clause was discarded by the Constituent Assem bly and the present form was substituted in its place in article 21, article 22 was introduced with a view to provide for some sort of ' check in matters of arrest and detention and the protection it affords places limitations upon the authority of the legislature as well.
These protections indeed have been denied to cases of preventive detention but that again is a question of policy which does not concern us as a Court.
My conclusion, therefore, is that in article 21 the word "law" has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice.
The article presupposes that the law is a valid and binding law under the provisions.
of the Constitution having regard to the competency of the legislature and the subject it relates to and does not infringe any of the fundamental rights which the Constitution provides for.
In the view that I have taken, the question raised by Mr. Nambiar that the is invalid, by reason of the fact that the procedure it lays 279 down is not in conformity with the rules of natural justice, does not fall for consideration.
It is enough, in my opin ion, if the law is a valid law which the legislature is competent to pass and which does not transgress any of the fundamental rights declared in of the Constitution.
It is also unnecessary to enter into a discussion on the question raised by the learned Attorney General as to wheth er article 22 by itself is a self contained Code with regard to the law of Preventive Detention and whether or not the procedure it lays down is exhaustive.
Even if the procedure is not exhaustive, it is not permissible to supplement it by application of the rules of natural justice.
On the third point raised by Mr. Nambiar, the only question, therefore, which requires consideration is whether section 12 of the is ultra vires of the Constitution by reason of its being not in conformity with the provision of article 22 (7)(a).
Article 22 (7) (a) of the Constitution empowers the Parliament to prescribe the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an advisory board in accordance with the provisions of sub clause (a) of clause (4).
Section 12 of the which purports to be an enact ment in pursuance of article 22 (7) (a) of the Constitution provides as follows: "(1) Any person detained in any of the following classes of cases or under any of the following circumstances may be detained without obtaining the opinion of an advisory board for a period longer than three months, but not exceeding one year from the date of his detention, namely, where such person has been detained with a view to preventing him from acting in any manner prejudicial to (a) the defence of India, relations of India with for eign powers or the security of India; or (b) the security of a State or the maintenance of public order.
" It will be noticed that there are altogether six 36 280 heads or subjects in the two Items in the legislative lists, namely, Item No. 9 of List I and Item No. 3 of List III which deal with preventive detention.
Item No. 9 of List I mentions reasons connected with defence, foreign affairs and security of India, while Item No. 3 of List III speaks of reasons connected with security of a State, the maintenance of public order and the maintenance of supplies and services essential to the community.
With the exception of the last head; all the remaining five have been listed in section 12 of the preventive Detention Act and they have been mentioned both as circumstances and classes of cases in which deten tion for more than three months would be permissible without the opinion of any advisory board.
Mr. Nambiar 's argument is that the mentioning_ of five out of the six legislative heads in section 12 does not amount to prescribing the circumstances under which, or the classes of cases in which, a person could be detained for more than three months as contemplated by article 22 (7) (a).
It is also contended that in view of the fact that the two items "circumstances" and "classes" are separated by the conjunction "and," what the Constitution really contemplated was that both these items should be specified and a statement or specification of any one of them would not be a proper compliance with the provisions of the clause.
It is further pointed out that the mentioning of the same matters as "circumstances" or "classes" is not warranted by article 22 (7) of the Consti tution and is altogether illogical and unsound.
I must say that section 12 has been drafted in a rather clumsy manner and certainly it could have been framed in a better and more proper way.
Under article 22(7)(a), the Parliament may specify the circumstances under which, and the classes of cases in which, the necessity of placing the cases of detention for examination by the advisory board could be dispensed with.
By "classes of cases" we mean certain determinable groups, the individuals comprised in each group being related to one another in a particular way which constitutes the determining factor of that group.
"Circumstances" on the other hand 281 connote situations or conditions which are external to the persons concerned.
Preventive detention can be provided for by law for reasons connected with six different ,matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22 (4) (a) which lays down that deten tion for more than three months could not be permitted except with the sanction of the advisory board.
An alterna tive however has been provided for by clause (b) and Parlia ment has been given the option to take away the protection given by clause (a) and specify the circumstances and the cases when this rule will not apply.
I am extremely doubt ful whether the classification of cases made by Parliament in section 12 of the Act really fulfils the object which the Constitution had in view.
The basis of classification has been the apprehended acts of the persons detained described with reference to the general heads mentioned in the items in the legislative lists as said above.
Five out of the six heads have been taken out and labelled as classes of cases to which the protection of clause (4) (a) of the article would not be available.
It is against common sense that all forms of activities connected with these five items are equally dangerous and merit the same drastic treatment.
The descriptions are very general and there may be acts of various degrees of intensity and danger under each one of these heads.
Although I do not think that section 12 has been framed with due regard to the object which the Constitution had in view, I am unable to say that the section is invalid as being ultra vires the Constitution.
The Constitution has given unfettered powers to Parliament in the matter of making the classifications and it is open to the Parliament to adopt any method or principle as it likes.
If it chose the principle implied in the enumeration of subjects under the relevant legislative heads, it cannot be said that Parliament has exceeded its powers.
I am also unable to hold that both "circumstances" as well as "classes" have to be prescribed in order to 282 comply with the requirement of sub clause (a) of article 22 (7).
The sub clause (a) of the article lays down a purely enabling provision and Parliament, if it so chooses, may pass any legislation in terms of the same.
Where an optional power is conferred on certain authority to perform two separate acts, ordinarily it would not be obligatory upon it to perform both; it may do either if it so likes.
Here the classes have been specified and the classes apparently are composed of persons who are detained for the purpose of preventing them from committing certain apprehended acts.
I am extremely doubtful whether the classes themselves could be described as "circumstances" as they purport to have been done in the section.
"Circumstances" would ordinarily refer to conditions like war, rebellion, communal disturbances and things like that, under which extra precaution might be :necessary and the detention of suspected persons beyond the period of three months without the sanction of the advisory board might be justified.
It is said that the likelihood of these persons committing the particular acts which are specified might constitute "circumstances.
" In my opinion, that is not a plain and sensible interpretation.
But whatev er that may be, as I am of opinion that it is not obligatory on Parliament to prescribe both the circumstances and the classes of cases, I am unable to hold that section 12 is ultra vires the Constitution because the circumstances are not mentioned.
As I have said at the beginning, the draft is rather clumsy and I do not know why Parliament used the word "or" when in the Constitution itself the word "and" has been used.
In the fourth and last point raised by Mr. Nambiar the principal question for consideration is the validity of section 14 of the .
Subsection (1)of section 14 prohibits any Court from allowing any statement to be made or any evidence to be given before it of the substance of any communication made under section 7 of the grounds on which a detention order has been made against any person or any representation made by him against such order.
It further provides that no Court shall be 283 entitled to require any public officer to produce before it or to disclose the substance of any such communication or representation made or the proceedings of an advisory board or that part of the report of an advisory board which is confidential.
Sub section (2) further provides that: "It shall be an offence punishable with imprisonment for a term which may extend to one year, or with fine, or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the ' case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub section (1): Provided that nothing in this sub section shall apply to a disclosure made to his legal adviser by a person who is the subject of a detention order.
" The provisions of this section are obviously of a most drastic character.
It imposes a ban on the Court and pre vents it from allowing any statement to be made or any evidence produced before it of the substance of any communi cation made to the detenu apprising him of the grounds upon which the detention order was made.
The Court is also incompetent to look into the proceedings before the advisory board or the report of the latter which is confidential.
Further the disclosure of such materials has been made a criminal offence punishable with imprisonment for a term which may extend to one year.
Mr. Nambiar 's contention is that these restrictions render utterly nugatory the provi sions of article 32 of the Constitution which guarantees to every person the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution.
It is not disputed that the petitioner has the right of moving this Court for a writ of habeas corpus, and unless the Court is in a position to look into and examine the grounds upon which the detention order has been made, it is impossible for it to come to any deci sion on the point and pass a proper judgment.
Though the right to move this 284 Court is not formally taken away, the entire proceedings are rendered ineffective and altogether illusory.
On behalf of the respondent, it is pointed out that article 32 guarantees only the right to constitutional remedy for enforcement of the rights which are declared by the Constitution.
If there are no rights under the Constitution, guaranteed to a person who is detained under any law of preventive deten tion, no question of enforcing such rights by an ap proach to this Court at all arises.
I do not think that this argument proceeds on a sound basis; and in my opinion, section 14 does take away and materially curtails some of the fundamental rights which are guaranteed by the Constitu tion itself.
Article 22, clause (5), of the Constitution lays down as a fundamental right that when a person is detained for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representa tion against the order.
Under clause (6), the authority need not disclose such facts as it considers to be against public interest to disclose.
But so far as the grounds are concerned, the disclosure is not prohibited under any cir cumstance.
It is also incumbent upon the detaining authori ty to afford a detenu the earliest opportunity of making a representation against the detention order.
It has been held in several cases, and in my opinion quite rightly, that if the grounds supplied to a detained person are of such a vague and indefinite character that no proper and adequate representation could be made in reply to the same, that itself would be an infraction of the right which has been given to the detenu under law.
In my opinion, it would not be possible for the Court to decide whether the provisions of article 22, clause (5), have been duly complied with and the fundamental right guaranteed by it has been made avail able to the detenu unless the grounds communicated to him under the provisions of this article are actually produced before the Court.
Apart from this, it is also open to.
the person detained to contend that the detention 285 order has been a main fide exercise of power by the detain ing authority and that the grounds upon which it is based, are not proper or relevant grounds which would justify detention under the provisions of the law itself.
These rights of the detenu would for all practical purposes be rendered unenforceable if the Court is precluded from look ing into the grounds which have been supplied to him under section 7 of the .
In my opinion, section 14 of the does materially affect the fundamental rights declared under of the Constitution and for this reason it must be held to be illegal and ultra vires.
It is not disputed, however, that this section can be severed from the rest of the Act without affecting the other provisions of the Act in any way.
The whole Act cannot, therefore, be held to be ultra vires.
Mr. Nambiar has further argued that section 3 of the Act also contravenes the provisions of article 32 of the Consti tution, for it makes satisfaction of the particular authori ties final in matters of preventive detention and thereby prevents this Court from satisfying itself as to the propriety of the detention order.
This contention cannot succeed as no infraction of any fundamental right is in volved in it.
As has been pointed out already, this Court cannot interfere unless it is proved that the power has been exercised by the authorities in a mala fide manner or that the grounds are not proper or relevant grounds which justify detention.
The provisions are undoubtedly harsh, but as they do not take away the rights under articles 21 and 22 of the Constitution, they cannot be held to be illegal or ultra vires.
The result, therefore, is that, in my opinion, the must be declared to be intra vires the Constitution with the exception of section 14 which is held to be illegal and ultra vires.
The present petition, however, must stand dismissed, though it may be open to the petitioner to make a fresh application if he so chooses and if the grounds that have been supplied to him under section 7 of the Act do furnish adequate reasons for making such application.
286 DAS J. I am likewise of opinion that this application should be dismissed.
The contention of learned counsel appearing in support of this application is that the provisions of the (Act IV of 1950), are extremely drastic and wholly unreasonable and take away or, in any event, considerably abridge the fundamental rights conferred on the citizens by the provisions of of the Constitution and that this Court should declare the Act wholly void under article 13 (2) of the Constitution and set the petitioner at liberty.
It is necessary to bear in mind the scope and ambit of the powers of the Court under the Constitution.
The powers of the Court are not the same under all Constitutions.
In England Parliament is supreme and there is no limitation upon its legislative powers.
Therefore, a law duly made by Parliament cannot be challenged in any Court.
The English Courts have to interpret and apply the law; they have no authority to declare such a law illegal or unconstitutional.
By the American Constitution the ' legislative power of the Union is vested in the Congress and in a sense the Congress is the supreme legislative power.
But the written Constitu tion of the United States is supreme above all the three limbs of Government and, therefore, the law made by the Congress, in order to be valid, must be in conformity with the provisions of the Constitution.
If it is not, the Supreme Court will intervene and declare that law to be unconstitutional and void.
As will be seen more fully hereafter, the Supreme Court of the United States, under the leadership of Chief Justice Marshall, assumed the power to.
declare any law unconstitutional on the ground of its not being in "due process of law," an expression to be found in the Fifth Amendment (1791) of the United States Constitution and the Fourteenth Amendment (1868) which related to the State Constitutions.
It is thus that the Supreme Court established its own supremacy over the executive and the Congress.
In India the position of the Judiciary is some where in 287 between the Courts in England and the United States.
While in the main leaving our Parliament and the State Legisla tures supreme in their respective legislative fields, our Constitution has, by some of the articles, put upon the Legislatures certain specified limitations some of which will have to be discussed hereafter.
The point to be noted, however, is that in so far as there is any limitation on the legislative power, the Court must, on a complaint being made to it, scrutinise and ascertain whether such limitation has been transgressed and if there has been any transgression the Court will courageously declare the law unconstitution al, for the Court is bound by its oath to uphold the Consti tution.
But outside the limitations imposed on the legisla tive powers our Parliament and the State Legislatures are supreme in their respective legislative fields and the Court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature.
Our Constitution, unlike the English Constitution, recognises the Court 's supremacy over the legislative authority, but such supremacy is a very limited one, for it is confined to the field where the legislative power is circumscribed by limitations put upon it by the Constitution itself.
Within this restrict ed field the Court may, on a scrutiny of the law made by the Legislature, declare it void if it is found to have trans gressed the constitutional limitations.
But our Constitu tion, unlike the American Constitution, does not recognise the absolute supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States.
It is well for us to constantly remember this basic limitation on our own powers.
The impugned Act has been passed by Parliament after the Constitution came into force.
Article 246 gives exclusive power to Parliament to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule and it gives exclusive power to 288 the State Legislatures to make laws with respect to any of the matters specified in List II of that Schedule.
It also gives concurrent power to Parliament as well as to the State Legislatures to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule.
Residuary powers of legislation are vested in parliament under article 248.
The first thing to note is that under Entry 9 of List I the parliament and under Entry 3 in List III both parliament and the State Legislatures are empowered to make laws for preventive detention for reasons connected with the several matters specified in the respective entries.
This legisla tion is not conditioned upon the existence of any war with a foreign power or upon the proclamation of emergency under Part XVIII of the Constitution.
Our Constitution has, there fore, accepted preventive detention as the subjectmatter of peacetime legislation as distinct from emergency legisla tion.
It is a novel feature to provide for preventive detention in the Constitution.
There is no such provision in the Constitution of any other country that I know of.
Be that as it may, for reasons good or bad, our Constitution has deliberately and plainly given power to Parliament and the State Legislatures to enact preventive detention laws even in peacetime.
To many of us a preventive detention law is odious at all times but what I desire to emphasise is that it is not for the Court to question the wisdom and policy of the Constitution which the people have given unto themselves.
This is another basic fact which the Court must not overlook.
The next thing to bear in mind is that, if there were nothing else in the Constitution, the legislative powers of Parliament and the State Legislatures in their respective fields would have been absolute.
In such circumstances the Court would have been entitled only to scrutinise whether Parliament or the State Legislature had, in making a partic ular law, over . stepped its legislative field and en croached upon the legislative field of the other legislative power, but could not have otherwise questioned the validity of any law made by the parliament or the State Legislatures.
289 Thus under Entry 9 of List I the Parliament and under Entry 3 of List III the Parliament and the State Legislature could make as drastic a preventive detention law as it pleased.
Such a law might have authorised a policeman, not to speak of a District Magistrate or Sub Divisional Magistrate or the Commissioner of Police, to take a man, citizen or non citi zen, into custody and keep him in detention for as long as he pleased.
This law might not have made any provision for supplying to the detenu the grounds of his detention or affording any opportunity to him to make any representation to anybody or for setting up any advisory board at all.
Likewise, under Entries 1 and 2 in List III the Parliament or the State Legislature might have added as many new and novel offences as its fancy might have dictated and provided for any cruel penalty ranging from the maiming of the limbs to boiling to death in oil or repealed the whole of the Code of Criminal Procedure and provided for trial by battle or ordeal or for conviction by the verdict of a sorcerer or a soothsayer.
Such law might have forbidden any speech criti cising the Government, however mildly, or banned all public meetings or prohibited formation of all associations under penalty of law.
Under Entry 33 of List I the Parliament might have made a law for acquiring anybody 's properties for the purposes of the Union without any compensation and under Entry 36 in List III the State Legislature could do the same subject to the provisions of Entry 42 in List III which empowers the making of a law laying down principles for payment of compensation which might be anything above noth ing.
Under Entry 81 Parliament could have made any law restricting or even prohibiting inter State migration so that a Bengali would not be able to move into and settle in Bihar or vice versa.
It is needless to multiply instances of atrocious laws which Parliament or the State Legislature might have made under article 246 read with the different lists if there were nothing else in the Constitution.
Our Legislatures, subject to the limitation of distribution of legislative powers, would have been as supreme in their respective legislative fields as the 290 English Parliament is and has been.
The Court in India, in such event, would have had to take the law duly made, inter pret it and apply it.
It would not have been entitled to utter a word as to the propriety of the particular law, although it might have shuddered at the monstrous atrocities of such law.
Our Constitution, however, has not accepted this abso lute supremacy of our Parliament or the State Legislature.
Thus by article 245 (1) the legislative power is definitely made "subject to the provisions of this Constitution.
" Turning to the Constitution, article 13 (2) provides as follows: "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
" This clearly puts a definite limitation on the wide legislative powers given by article 246.
It is certainly within the competency of the Court to judge and declare whether there has been any contravention of this limitation.
In this respect again the Court has supremacy over the Legislature.
From the provisions so far referred to, it clearly follows that there are two principal limitations to the legislative power of parliament, namely, (i) that the law must be within the legislative compe tence of parliament as prescribed by article 246; and (ii) that such law must be subject to the pro visions of the Constitution and must not take away or abridge the rights conferred by Part III.
There can be no question and, indeed, the learned Attorney General does not contend otherwise that both these matters are justiciable and it is open to the Courts to decide whether Parliament has transgressed either of the limitations upon its legislative power.
Learned counsel for the petitioner does not say that the impugned Act is ultra vires the legislative powers of Parliament as prescribed by article 246.
His contention is that the impugned Act is void 291 because it takes away or abridges the fundamental rights of citizens conferred by Part III of the Constitution.
It is, therefore, necessary to ascertain first the exact nature, extent and scope of the particular fundamental right insist ed upon and then to see whether the impugned Act has taken away or, in any way, abridged the fundamental right so ascertained.
Civil rights of a person are generally divided into two classes, namely, the rights attached to the person (jus personarum) and the rights to things, i.e., property (jus rerum).
Of the rights attached to the person, the first and foremost is the freedom of life, which means the right to live, i.e., the right that one 's life shall not be taken away except under authority of law.
Next to the freedom of life comes the freedom of the person, which means that one 's body shall not be touched, violated, arrested or imprisoned and one 's limbs shall not be injured or maimed except under authority of law.
The truth of the matter is that the right to live and the freedom of the person are the primary rights attached to the person.
If a man 's person is free, it is then and then only that he can exercise a variety of other auxiliary rights, that is to say, he can, within certain limits, speak what he likes, assemble where he likes, form any associations or unions, move about freely as his "own inclination may direct," reside and settle anywhere he likes and practise any profession or carry on any occupation, trade or business.
These are attributes of the freedom of the person and are consequently rights attached to the person.
It should be clearly borne in mind that these are not all the rights attached to the person.
Besides them there are varieties of other rights which are also the attributes of the freedom of the person.
All rights attached to the person are usually called personal liberties and they are too numerous to be enumerated.
Some of these auxiliary rights are so important and fundamental that they are re garded and valued as separate and independent rights apart from the freedom of the person.
Personal liberties may be compendiously summed up as the right to do as one pleases within the law.
I 292 say within the law because liberty is not unbridled licence.
It is what Edmund Burke called "regulated freedom." Said Montesquieu in Book III, Ch. 3, of his Spirit of the Laws: "In Governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.
We must have continually present to our minds the difference between independence and liberty.
Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow citizens would enjoy the same power.
" To the same effect are the following observations of Webster in his Works Vol.
II, p. 393: "Liberty is the creation of law, essentially different from that authorised licentiousness that trespasses on right.
It is a legal and refined idea, the offspring of high civilization, which the savage never understands, and never can understand.
Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have.
It is an error to suppose that liberty consists in a paucity of laws . .
The working of our complex system, full of checks and restraints on legislative, executive and judicial power is favourable to liberty and justice.
These checks and restraints are so many safeguards set around individual rights and interests.
That man is free who is protected from injury.
" Therefore, putting restraint on the freedom of wrong doing of one person is really.
securing the liberty of the intended victims.
To curb the freedom of the saboteur of surreptitiously removing the fish plates from the railway lines is to ensure the safety and liberty of movement of the numerous innocent and unsuspecting passengers.
Therefore, restraints on liberty should be judged not only subjectively as applied to a few individuals who come within their opera tions but also objectively as securing the liberty of a far greater number of individuals.
Social interest in individu al 293 liberty may well have to be subordinated to other greater social interests.
If a law ensures and protects the greater social interests then such law will be a wholesome and beneficent law although it may infringe the liberty of some individuals, for it will enure for the greater liberty of the rest of the members of the society.
At the same time, our liberty has also to be guarded against executive, legislative as well as judicial usurpation of powers and prerogatives.
Subject to certain restraints on individuals and reasonable checks on the State every person has a varie ty of personal liberties too numerous to be cataloged.
As will be seen more fully hereafter, our Constitution has recognised personal liberties as fundamental rights.
It has guaranteed some of them under article 19 (1) but put re straints on them by clauses (2) to (6).
It has put checks on the State 's legislative powers by articles 21 and 22.
It has by providing for preventive detention, recognised that individual liberty may be subordinated to the larger social interests.
Turning now to the Constitution I find that Part III is headed and deals with "Fundamental Rights" under seven heads, besides, "General" provisions (articles 12 and 13), namely "Right to Equality" (articles 14 to 18), "Right to Freedom" (articles 19 to 22), "Right against Exploitation" (articles 23 and 24), "Right to Freedom of Religion" (articles 25 to 28), "Cultural and Educational Rights" (articles 29 and 30), "Right to Property" (article 31), "Right to Constitutional Remedies" (articles 32 to 35).
Under the heading "Right to Freedom" are grouped four arti cles, 19 to 22.
Article 19 (1) is in the following terms : " (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property; and 294 (g) to practise any profession, or to carry on any occupation, trade or business.
" It will be noticed that of the seven rights protected by clause (1) of article 19, six of them, namely, (a), (b), (c), (d), (e) and (g) are what are said to be rights at tached to the person (jus personarum).
The remaining item, namely, (f) is the right to property (jus rerum).
If there were nothing else in article 19 these rights would have been absolute rights and the protection given to them would have completely debarred parliament or any of the State Legisla tures from making any law taking away or abridging any of those rights.
But a perusal of article 19 makes it abun dantly clear that none of the seven rights enumerated in clause (1) is an absolute right, for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the several clauses (2) to (6) of that article.
Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights.
The nett result is that the unlimit ed legislative power given by article 246 read with the different legislative lists in the Seventh Schedule is cut down by the provisions of article 19 and all laws made by the State with respect to these rights must, in order to be valid, observe these limitations.
Whether any law has in fact transgressed these limitations is to be ascertained by the Court and if in its view the restrictions imposed by the law are greater than what is permitted by clauses (2) to (6) whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under article 13.
Here again there is scope for the application of the "intel lectual yardstick" of the Court.
If, however, the Court finds, on scrutiny, that the law has not overstepped the constitutional limitations, the Court will have to uphold the law, whether it likes the law or not.
The first part of the argument is put broadly, namely, that personal liberty is generally guaranteed by the Consti tution by article 19 (1) and that the , has imposed unreasonable 295 restrictions thereon in violation of the provisions of clauses (2) to (6) of that article.
The very first question that arises, therefore, is as to whether the freedom of the person which is primarily and directly suspended or de stroyed by preventive detention is at all governed by arti cle 19 (1).
If personal liberty as such is guaranteed by any of the sub clauses of article 19 (1) then why has it also been protected by article 21 ? The answer suggested by learned counsel for the petitioner is that personal liberty as a substantive right is protected by article 19 (1) and article 21 gives only an additional protection by prescrib ing the procedure according to which that right may be taken away.
I am unable to accept this contention.
If this argument were correct, then it would follow that our Consti tution does not guarantee to any person, citizen or non citizen, the freedom of his life as a substantive right at all, for the substantive right to life does not fall within any of the sub clauses of clause (1) of article 19.
It is retorted in reply that no constitution or human laws can guarantee life which is the gift of God who alone can guar antee and protect it.
On a parity of reasoning no Constitu tion or human laws can in that sense guarantee freedom of speech or free movement, for one may be struck dumb by disease or may lose the use of his legs by paralysis or as a result of amputation.
Further, what has been called the procedural protection of article 21 would be an act of supererogation, for when God takes away one 's life, whatever opportunity He may have had given to Adam to explain his conduct before sending him down, He is not likely in these degenerate days to observe the requirements of notice or fair trial before any human tribunal said to be required by article 21.
The fifth Amendment and the Fourteenth Amendment of the American Constitution give specific protection to life as a substantive right.
So does article 31 of the Japanese Constitution of 1946.
There is no reason why our Constitution should not do the same.
The truth is that article 21 has given that protection to life as a substan tive right and that, as will be seen hereafter, that article properly understood does not purport to prescribe any par ticular procedure at all.
The 38 296 further astounding result of the argument of counsel for the petitioner will be that the citizen of India will have only the rights enumerated in article 19, clause (1) and no other right attached to his person.
As I have already stated, besides the several rights mentioned in the several sub clauses of article 19 (1) there are many other personal liberties which a free man, i.e., a man who has the freedom of his person, may exercise.
Some of those other rights have been referred to by Harries C.J. of Calcutta in his unreported judgment in Miscellaneous Case No. 166 of 1950 (K.shitindra vs The Chief Secretary of West Bengal) while referring the case to a Full Bench in the following words : "It must be remembered that a free man has far more and wider rights than those stated in article 19 (1) of the Constitution.
For example, a free man can eat what he likes subject to rationing laws, work as much as he likes or idle as much as he likes.
He can drink anything he likes subject to the licensing laws and smoke and do a hundred and one things which are not included in article 19.
If freedom of person was the result of article 19, then a free man would only have the seven rights mentioned in that article.
But obviously the free man in India has far greater rights.
" I find myself in complete agreement with the learned Chief Justice on this point.
If it were otherwise, the citizen 's right to eat what he likes will be liable to be taken away by the executive fiat of the Civil Supply Depart ment without the necessity of any rationing laws.
The Government may enforce prohibition without any prohibition laws or licensing laws and so on.
I cannot accept that our Constitution intended to give no protection to the bundle of rights which, together with the rights mentioned in sub clauses (a) to (e) and (g) make up personal liberty.
In deed, I regard it as a merit of our Constitution that it does not attempt to enumerate exhaustively all the personal rights but uses the compendious expression "personal liber ty" in ' article 21, and protects all of them.
It is pointed out that in the original draft the word "liberty" only was used as in the American 297 Constitution but the Drafting Committee added the word "personal" to make it clear that what was being protected by what is now article 21 was not what had already been pro tected by what is now article 19.
If it were permissible to refer to the Drafting Committee 's report, it would be anoth er answer to the contentions of learned counsel for the petitioner that personal liberty as a substantive right was protected by article 19.
I do not, however, desire to base my judgment on the Drafting Committee 's report and I express no opinion as to its admissibility.
Whatever the intentions of the Drafting Committee might have been, the Constitution as finally passed has in article 21 used the words "personal liberty" which have a definite connotation in law as I have explained.
It does not mean only liberty of the person but it means liberty or the rights attached to the person (jus personarum).
The expressions "freedom of life" or "personal liberty" are not to be found in article 19 and it is strain ing the language of article 19 to squeeze in personal liber ty into that article.
In any case the right to life cannot be read into article 19.
Article 19 being confined, in its operation, to citizens only, a non citizen will have no protection for his life and personal liberty except what has been called the procedural protection of article 21.
If there be no substantive right what will the procedure protect ? I recognise that it is not imperative that a foreigner should have the same privileges as are given to a citizen, but if article 21 is construed in the way I have suggested even a foreigner will have equal protection for his life and personal liberty before the laws of our country under our Constitution.
I am unable, there fore, for all the reasons given above, to agree that person al liberties are the result of article 19 or that that article purports to protect all of them.
It is next urged that the expression "personal liberty" is synonymous with the right to move freely and, therefore, comes directly under article 19 (1) (d).
Reference is made to the unreported dissenting judgment of Sen J. of Calcutta in Miscellaneous Case No. 166 of 1950 while referring that case to a Full Bench.
298 In his judgment Sen J. quoted the following passage from Blackstone 's Commentaries : "Next to personal security the law of :England regards, asserts and preserves, the personal liberty of individuals.
This personal liberty consists in the power of locomotion, of changing situation, or moving one 's person to whatsoever place one 's own inclination may direct, without imprisonment or restraint, unless by due course of law." (Page 73 of George Chase 's Edition (4th Edition) of Blackstone, Book I, Chapter I.
On the authority of the above passage the learned Judge concluded that personal liberty came within article 19 (1)(d).
I am unable to agree with the learned Judge 's con clusion.
On a perusal of Chapter I of Book I of Black stone 's Commentaries it will appear that the]earned commen tator divided the rights attached to the person (jus person arum) into two classes, namely, "personal security" and "personal liberty.
" Under the head "personal security" Blackstone included several rights, namely, the rights to ' life, limb, body, health and reputation, and under the head "personal liberty" he placed only the right of free move ment.
He first dealt with the several rights classified by him under the head "personal security" and then proceeded to say that next to those rights came personal liberty which according to his classification consisted only in the right of free locomotion.
There is no reason to suppose that in article 21 of our Constitution the expression "personal liberty" has been used in the restricted sense in which Blackstone used it in his Commentaries.
If "personal liber ty" in article 21 were synonymous with the right to move freely which is mentioned in article 19 (1) (d), then the astounding result will be that only the last mentioned right has what has been called the procedural protection of arti cle 21 but none of the other rights in the other sub clauses of article 19 (1) has any procedural protection at all.
According to learned counsel for the petitioner the proce dure required by article 21 consists of notice and a right of hearing before an impartial tribunal.
Therefore, accord ing to him, a man 's right of movement cannot be taken away without giving him notice and a fair trial 299 before an impartial tribunal but he may be deprived of his freedom of speech or his property or any of his other rights without the formality of any procedure at all.
The proposi tion has only to be stated to be rejected.
In my judgment, article '19 protects some of the important attributes of personal liberty as independent rights and the expression "personal liberty" has been 'used in article 21 as a compen dious term including within its meaning all the varieties of rights which go to make up the personal liberties of men.
Learned counsel for the petitioner next contends that personal liberty undoubtedly means or includes the freedom of the person and the pith and substance of the freedom of the person is right to move about freely and consequently a preventive detention law which destroys or suspends the freedom of the person must inevitably destroy or suspend the right of free movement and must necessarily offend against the protection given to the citizen by article 19 (1)(d) unless it satisfies the test of reasonableness laid down in clause (5).
The argument is attractive and requires serious consideration as to the exact purpose and scope of sub clause (d) of article 19 (1).
There are indications in the very language of article 19 (1) (d) itself that its purpose is to protect not the gener al right of free movement which emanates from the freedom of the person but only a specific and 'limited aspect of it, namely, the special right of a free citizen of India to move freely throughout the Indian territory, i.e., from one State to another within the Union.
In other words, it guarantees, for example, that a free Indian citizen ordinarily residing in the State of West Bengal will be free to move from West Bengal to Bihar or to reside and settle in Madras or the Punjab without any let or hindrance other than as provided in clause (5).
It is this special right of movement of the Indian citizen in this specific sense and for this particu lar purpose which is protected by article 19 (1) (d).
It is argued on the authority of a decision of a Special Bench of the Calcutta High Court presided over by Sen J. in Sunil Kumar vs The Chief 300 Secretary of West Bengal (1) that the words "through .
out the territory of India" occurring in that sub clause only indicate that our Constitution does not guarantee to its citizens the right of free movement in or into foreign territory and that those words have been added to save passport restrictions.
I am unable to accept this interpre tation.
Our Constitution cannot possibly give to any of its citizens any right of free movement in a foreign country and it was wholly superfluous to specifically indicate this in the Constitution, for that would have gone without saying.
The words "throughout the territory of India" are not used in connection with most of the other sub clauses of clause (1) of article 19.
Does such omission indicate that our Constitution guarantees to its citizens freedom of speech and expression, say, in Pakistan ? Does it guarantee to.
its citizens a right to assemble or to form associations or unions in a foreign territory ? Clearly not.
Therefore, it was not necessary to use those words in sub clause (d) to indicate that free movement in foreign countries was not being guaranteed.
It is said that by the use of those words the Constitution makes it clear that no1 guarantee was being given to any citizen with regard to emigration from India without a passport and that the freedom of movement was restricted within the territory of India.
Does the omission of those words from article 19 (1) (a) indicate that the citizen of India has been guaranteed such freedom of speech and expression as will enable him to set up a broadcasting station and broadcast his views and expressions to foreign lands without a licences ? Clearly not.
Dropping this line of argument and adopting a totally new line of argument it is said that by the use of the words "throughout the territory of India" the Constitution indicates that the widest right of free movement that it could possibly give to its citizens has been given.
then, the omission of those words from the other subclauses indicate that the Constitution has kept back some parts of those rights even beyond the limits of the qualifying clauses that follow ? Do not those other rights prevail throughout the Indian territory ? (1) 301 Clearly they do, even without those words.
Therefore, those words must have been used in sub clause (d) for some other purpose.
That other purpose, as far as I can apprehend it, is to indicate that free movement from one State to another within the Union is protected so that Parliament may not by a law made under Entry 81 in List I curtail it beyond the limits prescribed by clause (5) of article 19.
Its purpose, as I read it, is not to provide protection for the general right of free movement but to secure a specific and special right of the Indian citizen to move freely throughout the territories of India regarded as an independent additional right apart from the general right of locomotion emanating from the freedom of the person.
It is a guarantee against unfair discrimination in the matter of free movement of the Indian citizen throughout the Indian Union.
In short, it is a protection against provincialism.
It has nothing to do with the freedom of the person as such.
That is guaranteed to every person, citizen or otherwise, in the manner and to the extent formulated by article 21.
Clause (5) of article 19 qualifies sub clause (d) of clause (1) which should, therefore, be read in the light of clause (5).
The last mentioned clause permits the State to impose reasonable restrictions on the exercise of the right of free movement throughout the territory of India as ex plained above.
Imposition of reasonable restrictions clearly implies that the right of free movement is not entirely destroyed but that parts of the right remain.
This reasona ble restriction can be imposed either in the interest of the general public or for the protection of the interests of any Scheduled Tribe.
The Scheduled Tribes usually reside in what are called the Scheduled Areas.
The provision for imposing restriction on the citizens ' right of free movement in the interests of the Scheduled Tribes clearly indicates that the restriction is really on his right of free movement into or within the Scheduled Areas.
It means that if it be found necessary for the protection of the Scheduled Tribes the citizens may be restrained from entering into or moving about in the Scheduled Areas, although they are left quite free to move about elsewhere.
This restraint may well be 302 necessary for the protection of the members of the, Sched uled Tribes who are generally impecunious and constitute a backward class.
They may need protection against money lenders or others who may be out to exploit them.
They may have to be protected against their own impecunious habits which may result in their selling or mortgaging their hearths and homes.
Likewise, the free movement of citizens may have to be restricted in the interest of the general public.
A person suffering from an infectious disease may be prevent from moving about and spreading the disease.
and regulations for his segregation in the nature of quarantine may have to be introduced.
Likewise, healthy people may be prevented, in the interests of the general public, from entering a plague infected area.
There may be protected places, e.g., forts or other strategic places, access where to may have to be regulated or even prohibited in the inter ests of the general public.
The point to be noted, however, is that when free movement is thus restricted, whether in the interest of the general public or for the protection of the Scheduled Tribes, such restriction has reference gener ally to a certain local area which becomes the prohibited area but the right of free movement in all other areas in the Union is left unimpaired.
The circumstance that clause (5) contemplates only the taking away of a specified area and thereby restricting the field of the exercise of the right conferred by subclause (d) of clause (1) indicates to my mind that subclause (d)is concerned, not with the freedom of the person or the general right of free movement but with a specific aspect of it regarded as an independent right apart from the freedom of the person.
In other words in sub clause (d)the real emphasis is on the words "throughout the territory of India.
" The purpose of article 19 (1) (d) is to guarantee that there shall be no State barrier.
It gives protection against provincialism.
It has nothing to do with the freedom of the person as such.
Finally, the ambit and scope of the rights protected by article 19 (1) have to be considered.
Does it protect the right of free movement and the other 303 personal rights therein mentioned in all circumstances irrespective of any other consideration ? Does it not postulate a capacity to exercise the rights ? Does its protection continue even though the citizen lawfully loses his capacity for exercising those rights ? How can the continuance of those personal rights be compatible with the lawful detention of the person ? These personal rights and lawful detention cannot go together.
Take the case of a person who has been properly convicted of an offence punish able under a section of the Indian Penal Code as to the reasonableness of which there is no dispute.
His right to freedom of speech is certainly impaired.
Under clause (2) the State may make a law relating to libel, slander, defama tion, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.
Any law on any of these matters contemplated by this clause certainly must have some direct reference to speech and expression.
It means that the law may directly curtail the freedom of speech so that the citizen may not talk libel or speak contemptuously of the Court or express indecent or immoral sentiments by speech or other forms of expression or utter seditious words.
To say that every crime undermines the security of the State and, therefore, every section of the Indian Penal Code, irrespective of whether it has any reference to speech or expression, is a law within the meaning of this clause is wholly unconvincing and betrays only a vain and forlorn attempt to find an explanation for meeting the argument that any conviction by a Court of law must necessarily infringe article 19 (1) (a).
There can be no getting away from the fact that a detention as a result of a conviction impairs the freedom of speech far beyond what is permissible under clause (2) of article 19.
Likewise a detention on lawful conviction impairs each of the other personal rights men tioned in sub clauses (b) to (e) and (g) far beyond the limits of clauses (8) to (6).
The argument that every section of the Indian Penal Code irrespective of whether it has any reference to any of the rights referred to in sub clauses (b) to (e) and (g) is a law imposing 304 reasonable restriction on those several rights has not even the merit of plausibility.
There can be no doubt that a detention as a result of lawful conviction must necessari ly impair the fundamental personal rights guaranteed by article 19 (1) far beyond what is permissible under clauses (2) to (6) of that article and yet nobody can think of questioning the validity of the detention or of the section of the Indian Penal Code under which the sentence was passed.
Why ? Because the freedom of his person having been lawfully taken away, the convict ceases to be entitled to exercise the freedom of speech and expression or any of the other personal rights protected by clause (1) of article 19.
On a parity of reasoning he cannot, while the detention lasts, exercise any other personal right, e.g., he cannot eat what he likes or when he likes but has to eat what the Jail Code provides for him and at the time when he is by Jail regulations required to eat.
Therefore, the conclusion is irresistible that the rights protected by article 19 (1), in so far as they relate to rights attached to the person, i.e., the rights referred to in sub clauses (a) to (e) and (g), are rights which only a free citizen, who has the freedom of his person unimpaired, can exercise.
It is pointed out, as a counter to the above reasonings, that detention as a result of a lawful conviction does not deprive a person of his right to acquire or hold or dispose of his property mentioned in sub clause (f).
The answer is simple, namely, that that right is not a right attached to the person (jus personrum) and its existence is not depend ent on the freedom of the person.
Loss of freedom of the person, therefore, does not suspend the right to property.
But suppose a person loses his property by reason of its having been compulsorily acquired under article 31 he loses his right to hold that property and cannot complain that his fundamental right under sub clause (f) of clause (1) of article 19 has been infringed.
It follows that the rights enumerated in article 19 (1) subsist while the citizen has the legal capacity to exercise them.
If his capacity to exercise them is gone, by reason of a lawful conviction with respect to the rights 305 in sub clauses (a) to (e) and (g), or by reason of a lawful compulsory acquisition with respect to the right in sub clause (f), he ceases to have those rights while his inca pacity lasts.
It further follows that if a citizen 's free dom of the person is lawfully taken away otherwise than as a result of a lawful conviction for an offence, that citizen, for precisely the same reason, cannot exercise any of the rights attached to his person including those enumerated in sub clauses (a) to (e) and (g) of article 19 (1).
In my judgment a lawful detention, whether punitive or preventive, does not offend against the protection conferred by article 19 (1) (a) to (e) and (g), for those rights must necessarily cease when the freedom of the person is lawfully taken away.
In short, those rights end where the lawful detention be gins.
So construed, article 19 and article 21 may, there fore, easily go together and there is, in reality, no con flict between them.
It follows, therefore, that the validi ty or otherwise of preventive detention does not depend on, and is not dealt with by, article 19.
To summarise, the freedom of the person is not the result of article 19.
Article 19 only deals with ' certain particu lar rights which, in their origin and inception, are attributes of the freedom of the person but being of great importance are regarded as specific and independent rights.
It does not deal with the freedom of the person as such.
Article 19 (1) (d) protects a specific aspect of the right of free locomotion, namely, the right to move freely throughout the territory of India which is regarded as a special privilege or right of an Indian citizen and is protected as such.
The protection of article 19 is co termi nous with the legal capacity of a citizen to exercise the rights protected thereby, for sub clauses (a) to (e) and (g) of article 19 (1) postulate the freedom of the person which alone can ensure the capacity to exercise the rights pro tected by those sub clauses.
A citizen who loses the free dom of his person by being lawfully detained, whether as a result of a conviction for an offence or as a result of preventive detention loses his capacity to exercise those rights and, therefore, has none of the rights which sub clauses (a) to (e) and (g) may protect.
306 In my judgment article 19 has no bearing on the question of the validity or otherwise of preventive detention and, that being so, clause (5) which prescribes a test of reasonable ness to be defined and applied by the Court has no applica tion at all.
Article 19 being thus out of the way, I come to article 20 which is concerned with providing protection against what are well known as ex post facto laws, double jeopardy and self incrimination.
This article constitutes a limitation on the absolute legislative power which would, but for this article, be exercisable by Parliament or the State Legisla tures under article 246 read with the legislative lists.
If the Legislature disobeys this limitation the Court will certainly prevent it.
Article 20 has no bearing on preven tive detention laws and I pass on.
Article 21 runs thus: "21.
No person shall be deprived of his life or person al liberty except according to procedure established by law.
" The contention of learned counsel for the petitioner is that by this article the Constitution offers to every per son, citizen or non citizen, only a procedural protection.
According to the argument, this article does not purport to give any protection to life or personal liberty as a sub stantive right but only prescribes a procedure that must be followed before a person may be deprived of his life or personal liberty.
I am unable to accept this contention.
Article 21, as the marginal note states, guarantees to every person "protection of life and personal liberty.
" As I read it, it defines the substantive fundamental right to which protection is given and does not purport to prescribe any particular procedure at all.
That a person shall not be deprived of his life or personal liberty except according to procedure established by law is the substantive fundamental right to which protection is given by the Constitution.
The avowed object of the article, as I apprehend it, is to define the ambit of the right to life and personal liberty which is to be protected as a fundamental right.
The right to life and 307 personal liberty protected by article 21 is not an absolute right but is a qualified right a right circumscribed by the possibility or risk of being lost according to procedure established by law.
Liability to deprivation according to procedure established by law is in the nature of words of limitation.
The article delimits the right by a reference to its liability to deprivation according to procedure estab lished by law and by this very definition throws a corre sponding obligation on the State to follow a procedure before depriving a man of his life and personal liberty.
What that procedure is to be is not within the purpose or purview of this article to prescribe or indicate.
The claim of learned counsel for the petitioner is that article 21 prescribes a procedure.
This procedure, accord ing to learned counsel, means those fundamental immutable rules of procedure which are sanctioned or well established by principles of natural justice accepted in all climes and countries and at all times.
Apart from the question whether any rule of natural procedure exists which conforms to the notions of justice and fair play of all mankind at all times, it has to be ascertained whether the language of article 21 will permit its introduction into our Constitu tion.
The question then arises as to what is the meaning of the expression "procedure established by law.
" The word "procedure" in article 21 must be taken to signify some step or method or manner of proceeding leading up to the depriva tion of life or personal liberty.
According to the language used in the article, this procedure has to be "established by law.
" The word "establish" according to the Oxford English Dictionary, Vol.
III, p. 297, means, amongst other things, "to render stable or firm ; to strengthen by materi al support; to fix, settle, institute or ordain permanently by enactment or agreement." According to Dr. Annandale 's edition of the New Gresham Dictionary the word "establish," means, amongst other things, "to found permanently; to institute; to enact or decree; to ordain; to ratify; to make firm.
" It follows that the word "established" in its ordi nary natural sense means, amongst other things, "enacted." "Established by law" will, 308 therefore, mean "enacted by law.
" If this sense of the word "established" is accepted, then the word "law" must mean State made law and cannot possibly mean.
the principles of natural justice, for no procedure can be said to have ever been "enacted" by those principles.
When section 124 A of the Indian Penal Code speaks of "Government established by law," surely it does not mean "Government set up by natural justice.
" Therefore, procedure established by law must, I apprehend, be procedure enacted by the State which, by its definition in article 12, includes parliament.
There is no escape from this position if the cardinal rule of construc tion, namely, to give the words used in a statute their ordinary natural meaning, is applied.
And this construction introduces no novelty or innovation, for at the date of the Constitution the law of procedure in this country.
both civil and criminal, was mainly if not wholly, the creature of statute.
The Hindu or Muhammadan laws of procedure were abrogated and replaced by the Code of Civil Procedure or the Code of Criminal Procedure.
Therefore, procedure established by law is quite compatible with procedure enact ed by law.
If, however, the word "established" is taken to mean "sanctioned" or "settled" or "made firm" then the question will arise as to the meaning of the word "law" in that context.
Reference is made to Salmond 's Jurisprudence, 10th Edition, p. 37, showing that the term "law" is used in two senses and it is suggested that the word "law" in the expression "established by law "means law in its abstract sense of the principles of natural justice.
It is "jus" and not "lex," says learned counsel for the petitioner.
It is pointed out that both the English and the Indian law in many cases, some of which have been cited before us, have recog nised and applied the principles of natural justice and that this Court should do the same in interpreting tim provisions of our Constitution.
I find it difficult to let in princi ples of natural justice as being within the meaning of the word "law," having regard to the obvious meaning of that word in the other articles.
Article 14 certainly embodies a principle of natural justice which ensures to.
309 every person equality before the law.
When natural jus tice speaks of and enjoins equality before the law, that law must refer to something outside natural justice, and must mean the State made laws.
It is only when the State law gives equality to every person that that law is said to be in accordance with natural justice.
There can be no doubt that the words "in accordance with law" in article 17 have reference to State law.
Likewise, the word "law" in article 20 (1) can mean nothing but law made by the State.
The same remark applies to the words "in accordance with law" in articles 23, 31 and 32.
Natural justice does not impose any tax and, therefore, the word "law" in articles 265 and 286 must mean State made law.
If this be the correct meaning of the word "law" then there is no scope for intro ducing the principles of natural justice in article 21 and "procedure established by law" must mcan procedure estab lished by law made by the State which, as defined, includes Parliament and the Legislatures of the States.
We have been referred to a number of text books and decisions showing the development of the American doctrine of "due process of law" and we have been urged to adopt those principles in our Constitution.
The matter has to be considered against its historical background.
The English settlers in different parts of America had carried with them the English common law as a sort of personal law regulating their rights and liberties inter se as well as between them and the State.
After the War of Independence the Constitu tions of the United States were drawn up in writing.
The majority of those who framed the Constitution were lawyers and had closely studied the Commentaries of the great Eng lish jurist Blackstone, who in his famous commentaries had advocated the separation of the three limbs of the State, namely, the executive, the legislature and the judiciary.
Montesquit 's Spirit of Laws had already been published wherein he gave a broader and more emphatic expression to the Aristotelian doctrine of separation of powers.
The experience of the repressive laws of Parliament had im pressed upon the framers of the American Constitution the 310 belief that it was the habit of all legislative bodies to grasp and exercise powers that did not belong to them.
The interference of the colonial governors with legislation and the judiciary was also real.
This sad experience coupled with the political philosophy of the time induced the fram ers of the American Constitutions to adopt safeguards not only against the executive but also against the legislature.
(See Munro on the Government of the United States, 5th Edition, Chapter IV, p. 53 et seq.).
Says Judge Cooley in his Constitutional Limitations, 6th Edition, Vol.
II, Chap ter XI, p. 755: "The people of the American States, holding the sover eignty in their own hands, have no occasion to exact any pledges from any one for a due observation of individual rights; but the aggressive tendency of power is such that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re enact this guarantee, and thereby adopt it as a principle of constitutional protection.
" There can be little doubt that the people of the differ ent States in America intended not to take any risk as to their life, liberty or property even from the legislature.
As Munro puts it at pp.
58 61 : "The framers of the Constitution set boundaries to the powers of the Congress, and it was their intent that these limitations should be observed.
But how was such observance to be enforced by the Courts ? The statesmen of 1767 did not categorically answer that question.
" The Constitution was silent and there was no express provision as to who was to serve as umpire in case the Congress overstepped the limits of its legislative powers.
By the 5th Amendment what is now known as the "due process clause" was introduced in the Federal Constitution and by the 14th Amendment a similar clause was adopted in the State Constitutions.
Some of the State Constitutions used the words "due course of law," some repeated the words of Magna Charta, namely, "the law of the land" but most of 311 them used the expression "due process of law.
" All the expressions meant the same thing, namely, that no person should be deprived of his life, liberty or property except in due process of law.
The Constitution by this clause gave the Supreme Court an opportunity to take upon itself the function of declaring the national laws unconstitutional.
And the Supreme Court, under the leadership of Chief Justice John Marshall, seized this opportunity and assumed the right to say the last word on questions of constitutionality, and possesses that right to day: (Munro, p. 62).
The expression "due process of law" has been interpreted by the American Courts in different ways at different times.
Carl Brent Swisher in his book on the Growth of Constitutional Power in the United States at p. 107 says, with reference to the development of the doctrine of due procedure: "The American history of its interpretation falls into three periods.
During the first period covering roughly the first century of Government under the Constitution "due process" was interpreted "principally as a restriction upon procedure and largely the judicial procedure by which the Government exercised its powers.
During the second period,which, again roughly speaking, extended through 1936, "due process" was expanded to serve as a restriction not merely upon procedure but upon the substance of the activi ties in which the Government might engage.
During the third period extending from 1936 to date, the use of "due process" as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure.
" In the guise of interpreting "due process of law" the American Courts went much further than even Lord Coke ever thought of doing.
The American Courts gradually arrogated to themselves the power to revise all legislations.
In the beginning they confined themselves to insisting on a due procedure to be followed before a person was deprived of his life, liberty or property.
In course of time, "due process of law" came to be applied to personal liberty, to social control, to procedure 40 312 to jurisdiction and to substantive law: (Willis, p. 642).
In the words of Munro "due process of law" became a sort of palladium covering all manner of individual rights.
A_II the while the Supreme Court refused to define the phrase, but used it to enable it to declare unconstitutional any Act of legislation which it thought unreasonable: (Willis, p. 657).
In Holden vs Hardy (1) we find the following observa tions: "This Court has never attempted to define with precision the words ' due process of law . . .
It is suffi cient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.
"In Taylor vs Peter (2) Bronson J. observed: "The words 'by the law of the land ' as used in the Constitution, do not mean a statute passed for the purpose of working the wrong.
That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense.
The people would be made to say to the two Houses: ' You shall be vested with the legis lative power of the.
State, but no one shall be disenfran chised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose.
In other words you shall not do the wrong unless you choose to do it. '" It was thus that the Supreme Court of the United States firmly established its own supremacy over the other two limbs of the State, namely, the executive and the Congress.
In the words of John Dickinson quoted in Munro at p. 61, "The Judges of Aragon began by setting aside laws and ended by making them." And all this sweeping development could only be possible because of the presence of one little word "due" which, in its content, knows no bound and is not subject to any fixed definition.
Whenever a substantive law or some procedure laid down in any law did not find favour with the majority of the learned Judges of the Supreme Court it was not reasonableand, therefore, it was not "due." (1) ; at p. 389.
(2) 4 Hill 140, 145. 313 The very large and nebulous import of the word "due" was bound to result in anomalies, for what was not "due" on one day according to the Judges then constituting the Supreme Court became "due" say 20 years later according to the new Judges who then came to occupy the Bench, for the Court had to adapt the Constitution to the needs of the society which were continually changing and growing.
The larger content of due process of law, which included both procedural and substantive due process of law, had of necessity to be narrowed down, for social interest in personal liberty had to give way to social interest in other matters which came to be considered to be of more vital interest to the commu nity.
This was achieved by the Supreme Court of the United States evolving the new doctrine of police powers a pecul iarly American doctrine.
The police powers are nowhere exhaustively defined.
In Chicago B. & Q. Ry.
vs Drainage Commissioner (1) ,, police power" has been stated to "em brace regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety." Reference in this connection may be made to Cooley 's Constitutional Limitations, 8th Edition, Vol.
II, p. 1223 and to Chapter XXVI of Willis at p. 727.
The nett result is that the all inclusive and indefina ble doctrine of due process of law has in America now been brought back to its original status of a procedural due process of law by the enunciation and application of the new doctrine of police power as an antidote or palliative to the former.
Who knows when the pendulum will swing again.
Turning now to what has been called the procedural due process of law it will be found that the matter has been described in different languages in different cases.
In Westervelt vs Gregg (2) Edwards J. defined it thus: "Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules 204 u.s. 561,592.
(2) 314 and forms which have been established for the protection of private rights.
" A more specific definition of the expression "the law of the land" meaning procedural due process was given by Web ster appearing as counsel for the plaintiff in error in the Trustees of Dartmouth College vs Woodward (1): "By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial.
The meaning is that every citizen shall hold his life, liberty, property, and.
immunities, under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not therefore to be considered the law of the land." Willis in Ch.
XXIII, p. 661, says: "The guarantee of due process of law as a matter of procedure means that no part of a person 's personal liberty, including ownership, shall be taken away from him except by the observance of certain formalities.
Hence its object is the protection of the social interest in personal liberty.
" At p. 662 Willis enumerates the requirements of the procedural due process of law as follows:(1) notice.
(2) opportunity to be heard, (3) an impartial tribunal, and (4) an orderly course of procedure.
In short, the procedural due process requires that a person who is to be deprived of his life, liberty or property shall have had "his day in Court.
" This according to Willough by p. 736, means: "(1) that he shall have had due notice, which may be actual or constructive, of the institution of the proceed ings by which his legal rights may be affected; (2) that he shall be given a reasonable opportunity to appear and defend his rights, including the right himself to testify, to produce witnesses, and to introduce relevant documents and other evidence, (3) that the tribunal in or before which his rights are adjudicated is so constituted as to give reasona ble assurance of its.
(1) ; at p. 579; 4 L. Edn. 629 at p. 645.
315 honesty and impartiality; and (4) that it is a Court of competent jurisdiction.
" It will be noticed that the fourth item of Willoughby is different from the fourth item of Willis.
Such, in short, are the history of the development of the doctrine of the process of law in the United States and the requirements of the procedural due process as insisted on by the Supreme Court of that country.
Learned counsel for the petitioner before us does not contend that we should import this American doctrine of due process of law in its full glory but that we should adopt the procedural part of it and insist that no person shall be deprived of his life or personal liberty except by the observance of the formalities which justice and fair play require to be observed.
The arguments of learned counsel for the petitioner are attractive and in the first blush certainly appeal to our sentiment but on serious reflection I find several insuperable objections to the introduction of the American doctrine of procedural due process of law into our Constitution.
That doctrine can only thrive and work where the legislature is subordinate to the judiciary in the sense that the latter can sit in judgment over and review all acts of the legislature.
Such a doctrine can have no application to a field where the legislature is supreme.
That is why the doctrine of "due process of law" is quite different in England where Parliament is supreme.
This difference is pointedly described by Mathews J. in Joseph Hurtado vs People of California (1) at p. 531: "The concessions of Magna Charta were wrung from the King as guarantees against oppression and usurpation of his prerogatives.
It did not enter into the minds of the barons to provide security against their own body or in favour of the commons by limiting the power of Parliament, so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates and other arbitrary Acts of legisla tion which occur so frequently in English history, were never regarded as inconsistent with the law of the land, for, notwithstanding what was attributed to Lord Coke in.
Bonham 's (1) ; 316 case, , 118 (a),] the omnipotence of Parliament over the Common Law was absolute, even against common right and reason.
The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons.
In this country written Constitutions were deemed essen tial to protect the rights and liberties of the people against the encroachments of power delegated to their gov ernments and the provisions of Magna Charta were incorporat ed in the bills of rights.
They were limitations upon all the powers of government, legislative as well as executive and judicial.
" This basic distinction between the two systems should never be lost sight of, if confusion of thought is to be avoided.
Although our Constitution has imposed some limita tions on the legislative authorities, yet subject to and outside such limitations our Constitution has left our Parliament and the State Legislatures supreme in their respective legislative fields.
In the main, subject to the limitations I have mentioned, our Constitution has preferred the supremacy of the Legislature to that of the Judiciary.
The English principle of due process of law is, therefore, more in accord with our Constitution than the American doctrine which has been evolved for serving quite a differ ent system.
The picturesque language of Bronson J. quoted above, while that is quite appropriate to the American Constitution which does not recognise the supremacy of the Congress, is wholly out of place in, and has no applica tion to, a Constitution such as ours, which, subject only to certain restrictions, recognises the supremacy of the Legis latures in their respective fields.
In the next place, it is common knowledge that our Constitution makers deliberate ly declined to adopt the uncertain and shifting American doctrine of due process of law and substituted the words ' "except in due process of law" that were in the original draft by the more specific expression "except in accordance with procedure established by law.
" To try to bring in the American doctrine, in spite of this fact, will be to stulti fy the intention of the Constitution as expressed in 317 article 21.
In the third place, in view of the plain meaning of the language of that article as construed and explained above it is impossible to let in what have been called the principles of natural justice as adopted in the procedural due process of law by the American Supreme Court.
Again, even the all pervading little word "due" does not find a place in article 21 so as to qualify the procedure.
It speaks of procedure and not "due" procedure and, therefore, "the intellectual yardstick" of the Court is definitely ruled out.
Finally, it will be incongruous to import the doctrine of due process of law without its palliative, the doctrine of police powers.
It is impossible to read the last mentioned doctrine into article 21.
It has also been suggested as a compromise that this Court should adopt a middle course between the flexible principles of natural justice as adopted by the American doctrine of due process of law and the unbending rigidity of mere State made laws.
h is said that we have our Code of Criminal Procedure which embodies within its provisions certain salutary principles of procedure and we must insist that those underlying principles should be regarded as procedure established or settled by our positive law.
But who will say what are those fundamental principles? What principles.
do I reject as inessential and what shall I adopt as fundamental ? What is fundamental to me today may not appear to be so to another Judge a decade hence, for principles give way with changing social conditions.
In America it was suggested that due process of law should be taken to mean the general body of common law as it stood at the date of the Constitution.
In Bardwell vs Collins (1) it was negatived in the following words: " 'Due process of law ' does not mean the general body of the law, common and statute, as it was at the time the Constitution took effect; for that would deny the legisla ture power to change or amend the law in any particular.
" The Court, however, brought in principles of (1) 318 natural justice under the due process clause.
To sanctify what I may to day regard as the basic principles underlying our Code of Criminal Procedure will be to make them immuta ble and to prevent the legislature even to improve upon them.
This is nothing but imposing on the legislature a limitation which the Constitution has not placed on it.
I do not think it is a permissible adventure for the Court to undertake.
It is a dangerous adventure, for it will bring about stagnation which means ruin.
We must accept the Con stitution which is the supreme law.
The Constitution has by article 21 required a procedure and has prescribed certain minimum requirements of procedure in article 22.
To add to them is not to interpret the Constitution but to recast it according to our intellectual yardstick and our unconscious predilections as to what an ideal Constitution should be.
Article 21, in my judgment, only formulates a substan tive fundamental right to life and personal liberty which in its content is not an absolute right but is a limited right having its ambit circumscribed by the risk of its being taken away by following a procedure established by law made by the appropriate legislative authority and the proximate purpose of article 21 is not to prescribe any particular procedure.
It is to be kept in mind that at the date when the Constitution came into effect we had the Indian Penal Code creating diverse offences and a conviction for any of them would deprive a person of his personal liberty.
Under article 246 read with Entry 1 of the Concurrent List, Par liament or any State Legislature could add more offences and create further means for taking away personal liberty.
But all this deprivation of personal liberty as a result of a conviction could only be done by following the procedure laid down by the Code of Criminal Procedure.
Again, at the date of this Constitution there were preventive detention laws in almost every province and a person could be deprived of his personal liberty under those laws.
Those laws, however, provided a procedure of a sort which had to be followed.
Therefore, before the Constitution came into force, personal liberty could be taken away 319 only by following the procedure enacted by the Criminal Procedure Code in the case of punitive detention or by the procedure enacted by the different Security Acts in case of preventive detention.
Power, however, has been given to Parliament and the State Legislatures under article 246 read with Entry 2 of the Concurrent List to make laws with re spect to Criminal Procedure.
If that article stood by itself the Parliament or the State Legislature could repeal the whole of the Criminal Procedure Code and also do away even with the skeleton procedure provided in the Security Acts.
If article 246 stood by itself then the appropriate legislative authority could have taken away the life and personal liberty of any person without any procedure at all.
This absolute supremacy of the legislative authority has, however, been cut down by article 21 which delimits the ambit and scope of the substantive right to life and person al liberty by reference to a procedure and by article 22 which prescribes the minimum procedure which must be fol lowed.
In this situation the only power of the Court is to determine whether the impugned law has provided some proce dure and observed and obeyed the minimum requirements of article 29.
and if it has, then it is not for the Court to insist on more elaborate procedure according to its notion or to question the wisdom of the legislative authority in enacting the particular law, however harsh, unreasonable, archaic or odious the provisions of that law may be.
It is said that if this strictly technical interpreta tion is put upon article 21 then it will not constitute a fundamental right at all and need not have been placed in the chapter on Fundamental Rights, for every person 's life and personal liberty will be at the mercy of the Legislature which, by providing some sort of a procedure and complying with the few requirements of article 22, may, at any time, deprive a person of his life and liberty at its pleasure and whim.
There are several answers to this line of argument.
Article 21 as construed by me will, if nothing else, cer tainly protect every person against the executive and as such will be as much a fundamental right deserving 411 320 a place in the Constitution as the famous 39th Chapter of the Magna Charta was and is a bulwark of liberty in English law.
It appears to me that article 21 of our Constitution read with article 32 also gives us some protection even against the legislative authority in that a person may only be deprived of his life and personal liberty in accordance with procedure which, although enacted by it, must at least conform to the requirements of article 22.
Subject to this limitation our parliament or any State Legislature may enact any law and provide any procedure it pleases for depriving a person of his life and personal liberty under article 21.
Such being the meaning of that article and the ambit and extent of the fundamental right of life and personal liberty which the people of this country have given unto themselves, any law for depriving any person of his life and personal liberty that may be made by the appropriate legislative authority under article 246 and in conformity with the requirements of article 22 does not take away or abridge any right conferred by article 21, for the very right conferred by that article is circumscribed by this possi bility or risk and, therefore, such law cannot be regarded as violating the provisions of article 13 (2).
Our Constitution is a compromise between Parliamentary supremacy of England and the supremacy of the Supreme Court of the United States.
Subject to the limitations I have mentioned which are certainly justiciable, our Constitution has ac cepted the supremacy of the legislative authority and, that being so, we must be prepared to face occasional vagaries of that body and to put up with enactments of the nature of the atrocious English statute to which learned counsel for the petitioner has repeatedly referred, namely, that the Bishop of Rochester 's cook be boiled to death.
If Parliament may take away life by providing for hanging by the neck, logi cally there can be no objection if it provides a sentence of death by shooting by a firing squad or by guillotine or in the electric chair or even by boiling in oil.
A procedure laid down by the legislature may offend against the Court 's sense of justice and fair play 821 and a sentence provided by the legislature may outrage the Court 's notions of penology, but that is a wholly irrelevant consideration.
The Court may construe and interpret the Constitution and ascertain its true meaning but once that is done the Court cannot question its wisdom or policy.
The Constitution is supreme.
The Court must take the Constitu tion as it finds it, even if it does not accord with its preconceived notions of what an ideal Constitution should be.
Our protection against legislative tyranny, if any, lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself.
The conclusion I have arrived at does not introduce any novelty, for in many other Constitutions the supremacy of the legislature is recognised in the matter of depriving a person of his life, liberty and property.
The English Democratic Constitution is one in point.
Take the Constitu tion of the Irish Free State.
Article 40 (4) (i) provides that no citizen shall be deprived of personal liberty save in accordance with law, and article 50 (5) guarantees that the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.
The words "in accordance with law" in both the above clauses must mean the same thing and I have no doubt in my mind, reading clause (5)that it means in accordance with the State made law, for we have not been referred to any rule prescribed by natural justice regulating searches of, or entry into, dwelling houses.
Article 107 (2) of the Czechoslovakian Constitution uses the words "in accordance with law" which, read with clause (1) of that article, obviously means the law to be made which will form part of the Constitution.
Take the Constitution of the Free City of Danzig.
Article74 of that Constitution which is in Part II headed "Fundamental Bights and Duties" provides as follows: "The liberty of the person shall be inviolable.
No limitation or deprivation of personal liberty may be imposed by public authority, except by virtue of a law.
" 322 The word" law" clearly cannot, in the context,mcan princi ples of natural justice Again, article 75 of that Consti tution protects the freedom of movement within the Free City and the right to stay and to settle at any place, to acquire real property and to earn a living.
It concludes by saying that this right shall not be curtailed without legal sanctions.
Legal sanctions, in this context, can only mean sanctions of the City laws.
Article 114 of the Weimar Constitution is on the same lines and expressed in almost the same language as article 74 of the Danzig Constitution.
Take the Japanese Constitution of 1946 from which our arti cle 21 is reputed to have been taken.
Article XXXI of that Constitution says: No person shall be deprived of life or liberty nor shall any other criminal penalty be imposed, except according to procedure established by law.
" Surely the words "except according to procedure established by law" in their application to the imposition of criminal penalty must mean State made law and the same words in the same sentence in the same article cannot, according to ordi nary rules of construction of statutes, mean a different thing in their application to deprivation of life or liber ty.
I am aware that it is not right to construe one Consti tution in the light of another and that is not my purpose when I refer to the other Constitutions; but I do think that after reading the relevant provisions of other written Con stitutions one sees quite clearly that there is no pressing special reason applicable to or inherent in written Consti tutions which requires the importation of the principles of natural justice or of the American doctrine of due process of law into our Constitution.
The several Constitutions referred to above have not adopted that American doctrine but have been content with leaving the life and liberty of their citizens to the care of the laws made by their legis latures.
It is no novelty if our Constitution has done the same.
For all these reasons, in spite of the very able and attractive arguments of the learned counsel for the peti tioner which I freely acknowledge, I am not convinced that there is any scope for the introduction into article 21 of our 323 Constitution of the doctrine of due process of law even as regards procedure.
I may or may not like it, but that is the result of our Constitution as I understand it.
The learned Attorney General has referred to certain debates in the Constituent Assembly on the original clause which has now become article 21, not as evidence to be used in interpreting the language of article 21 but as disclos ing the historical background.
His purpose, he says, is to show that the framers of our Constitution had the essential difference in the meaning of the phrases "due process of law" and "according to procedure established by law" clearly explained to them, that they knew that the former implied the supremacy of the judiciary and the latter the supremacy of the legislature and with all that knowledge they deliber ately agreed to reject the former expression and adopt the latter.
As, in my opinion, it is possible to interpret the language of article 21 on the ordinary rules of interpreta tion of statutes, I do not think it is at all necessary to refer to the debates.
As I do not propose to refer to, or rely on, the debates for the purposes of this case, I express no opinion on the question of the admissibility or otherwise of the debates.
I now pass on to article 22.
The contention of learned counsel for the petitioner is that article 21 by reason of the last few words, "according to procedure established by law" attracts the four requirements of the American proce dural due process of law as summarised by Willis to which reference has been made earlier, and that those require ments, except to the extent they have been expressly abro gated or modified by article 22, must be strictly followed before a person may be deprived of his life or personal liberties.
I have already stated for reasons set forth above, that there is no scope for introducing any rule of natural justice or the American procedural due process of law or any underlying principle of our Code of Criminal Procedure into that article.
This being the conclusion I have arrived at, the major premise assumed by learned coun sel for the petitioner is missing and this 324 line of argument does not begin and cannot be accepted.
The learned Attorney General, on the other hand.
has at one stage of his argument, urged that article 21 has nothing to do with preventive detention at all and that preventive detention is wholly covered by article 22 (4) to (7) which by themselves constitute a complete code.
I am unable to accede to this extreme point of view also.
The true posi tion, as I apprehend it, lies between the two extreme views.
Article 21, to my mind, gives protection to life and person al liberty to the extent therein mentioned.
It does not recognise the right to life and personal liberty as an absolute right but delimits the ambit and scope of the right itself The absolute right is by the definition in that article cut down by the risk of its being taken away in accordance with procedure established by law.
It is this circumscribed right which is substantively protected by article 21 as against the executive as well as the legislature, for the Constitution has conditioned its depri vation by the necessity for a procedure established by law made by itself.
While subclauses (2) to (6) of article 19 have put a limit on the fundamental rights of a citizen, articles 21 and 22 have put a limit on the power of the State given under article 246 read with the legislative lists.
Under our Constitution our life and personal liberty are balanced by restrictions on the rights of the citizens as laid down in article 19 and by the checks put upon the State by articles 21 and 22.
preventive detention deprives a person of his personal liberty as effectively as does punitive detention and, therefore, personal liberty, circum scribed as it is by the risk of its being taken away, re quires protection against punitive as well as preventive detention.
The language of article 21 is quite general and is wide enough to give its limited protection to personal liberty against all forms of detention.
It protects a person against preventive detention by the executive without the sanction of a law made by the legislature.
It prevents the legislature from taking away a person 's personal liberty except in accordance with procedure established by law, although such 325 law is to be by itself.
If, as contended by the learned Attorney General and held by me, article 19 only protects the rights of a free citizen as long as he is free and does not deal with total deprivation of personal liberty and if, as contended by the learned Attorney General, article 21 does not protect a person against preventive detention then where is the protection for life and personal liberty as substantive rights which the procedural provisions of arti cle 22 may protect ? What is the use of procedural protec tion if there is no substantive right ? In my judgment article 21 protects the substantive rights by requiring a procedure and article 22 gives the minimum procedural pro tection.
Clauses (1) and (2) of article 22 lay down the procedure that has to be followed when a man is arrested.
They ensure four things: (a) right to be informed regarding grounds of arrest, (b) right to consult, and to be defended by, a legal practitioner of his choice, (c) right to be produced before a magistrate within 24 hours and (d) freedom from detention beyond the said period except by order of the magis trate.
These four procedural requirements are very much similar to the requirements of the procedural due process of law as enumerated by Willis.
Some of these salutary protections are also to be found in our Code of Criminal Procedure.
If the procedure has already been prescribed by article 21 incorporating the principles of natural justice or the principles underlying our Code of Criminal Procedure what was the necessity of repeating them in clauses (1) and (2) of article 22 ? Why this unnecessary overlapping ? The truth is that article 21 does not prescribe any particular procedure but in defining the protection to life and person al liberty merely envisages or indicates the necessity for a procedure and article 22 lays down the minimum rules of procedure that even Parliament cannot abrogate or overlook.
This is so far as punitive detention is concerned.
But clause (3) of article 22 expressly provides that none of the procedure laid down in clauses (1) and (2) shall apply to an alien enemy or to a person who is arrested or detained under any law providing for preventive detention.
It is thus expressly 326 made clear that a detenu need not be produced before the magistrate and he is not to have the assistance of any lawyer for consultation or for defending him.
Such being the express provision of our Constitution nobody can question its wisdom.
So I pass on.
Clauses (4), (5), (6) and (7) of article 22 in terms relate to preventive detention.
Article 246 authorises the appropriate legislature to make a law for preventive deten tion in terms of Entry 9 in List I and/or Entry 3 in List III of the Seventh Schedule.
On this legislative power are imposed certain limitations by article 22 (4) to (7).
According to this the legislature, whether it be Parliament or a State Legislature, is reminded that no law made by it for preventive detention shall authorise the detention of a person for a longer period than three months except in two cases mentioned in sub clauses (a) and (b).
The proviso to sub clause (a) and sub clause (b) refer to a law made only by Parliament under clause (7).
Under clause (7) it is Parliament alone and not any State Legislature that may prescribe what are specified in the three subclauses of that clause.
Although a State Legislature may make a law for preventive detention in terms of Entry 3 in List III of the Seventh Schedule no such law may authorise detention for more than three months unless the provisions of sub clauses (a)and (b) of clause (4) sanction such detention.
Even a law made by Parliament cannot authorise detention for more than three months unless it is a law made under the provi sions of clause (7).
In short, clause (4) of article 22 provides a limitation on the legislative power as to the period of preventive detention.
Apart from imposing a limitation on the legislative power, clause (4) also pre scribes a procedure of detention for a period longer than three months by providing for an advisory board.
Then comes clause (5).
It lays down the procedure that has to be fol lowed when a person is detained under any law providing for preventive detention, namely, (a) the grounds of the order of detention must be communicated to the detenu as soon as may be, and (b) the detenu must be afforded the earliest opportunity of making a representation against 327 the order.
The first requirement takes the place of notice and the second that of a defence or hearing.
These are the only compulsory procedural requirements laid down by our Constitution.
There is nothing to prevent the Legislature from providing an elaborate procedure regulating preventive detention but it is not obliged to do so.
If some procedure is provided as envisaged by article 21 and the compulsory requirements of article 22 are obeyed and carried out nobody can, under our Constitution, as I read it, complain of the law providing for preventive detention.
Learned counsel for the petitioner concedes that the four requirements of procedural due process summarised by Willis will have to be modified in their application to preventive detention.
Thus he does not insist on a prior notice before arrest, for he recognises that such a require ment may frustrate the very object of preventive detention by giving an opportunity to the person in question to go underground.
The provision in clause (5) for supplying grounds is a good substitute for notice.
He also does not insist that the Tribunal to judge the reasonableness of the detention should be a judicial tribunal.
He will be satis fied if the tribunal or advisory board, as it is called in article 22 of the Constitution, is an impartial body and goes into the merits of the order of detention and its decision is binding on the executive government.
He insists that the detenu must have a reasonable and effective oppor tunity to put up his defence.
He does not insist on the assistance of counsel, for that is expressly taken away by the Constitution itself.
But he insists on what he calls an effective opportunity of being heard in person before an impartial tribunal which will be free to examine the grounds of his detention and whose decision should be binding alike on the detenu and the executive authority which detains.
The claim may be reasonable but the question before the Court is not reasonableness or otherwise of the provisions of article 22 (4) to (7).
Those provisions are not justicia ble, for they are the provisions of the Constitution itself which is supreme over everybody.
42 328 The Court can only seek to find out, on a proper construc tion, what protection has in fact been provided.
The Consti tution has provided for the giving of the grounds of deten tion although facts as distinguished from grounds may be withheld under clause (6) and the right of representation against the order of detention.
It has provided for the duration of the detention.
There the guaranteed fundamental procedural rights end.
There is no provision for any trial before any tribunal.
One cannot import the condition of a trial by any tribunal from the fact that a right of repre sentation has been given.
The right to make representation is nothing more than the right to "lodge objections" as provided by the Danzig Constitution and the Weimar Constitu tion.
The representations made will no doubt be considered by the Government.
It is said a prosecutor cannot be himself the judge.
Ordinarily, the orders of detention will in a great majority of cases be made by the District Magistrate or Sub Divisional Officer or the Commissioner of Police.
The representation of the detenu goes to the Government.
Why should it be assumed that a high government official at the seat of the government will not impartially consider the representation and judge the propriety of the order of detention made by local officials ? Clause (5) does not imperatively provide for any oral representation which a hearing will entail.
Indeed the exclusion of the provisions of clauses (1) and (2) negatives any idea of trial or oral defence.
The Court may not, by temperament and training, like this at all but it cannot question the wisdom or the policy of the Constitution.
In my judgment as regards pre ventive detention laws, the only limitation put upon the legislative power is that it must provide some procedure and at least incorporate the minimum requirements laid down in article 22 (4) to (7).
There is no limitation as regards the substantive law.
Therefore, a preventive detention law which provides some procedure and complies with the require ments of article 22 (4) to (7) must be held to be a good law, however odious it may appear to the Court to be.
329 Learned counsel for the petitioner contends that the impugned Act does not comply with even the bare requirements of article 22 (4) to (7).
It is pointed out that section 3 of the Act does not lay down any objective test but leaves it to the authority to define and say whether a particular person comes within the legislative heads.
In other words, it is contended that Parliament has not legislated at all but has delegated its legislative powers to the executive authorities.
I do not think there is any substance in this contention.
In the first place this is not an objection as to procedure but to substantive law which is not open to the Court 's scrutiny.
In the next place this contention over looks the basic distinction between the delegation of power to make the law and the conferring of an authority and discretion as to its execution to be exercised under and in pursuance of the law.
The impugned Act has specifically set forth an ascertainable standard by which the conduct of a particular person is to be judged by the detaining authori ty.
It is next urged that section 12 of the Act does not comply with the requirements of clause (7) of article 22 for two reasons, namely (i) that clause (7) contemplates a law prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months and then another law thereafter providing for preventive detention for a period longer than three months; and (ii) that under clause (7) Parliament must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
As regards the first point I do not see why Parliament must make two laws, one laying down the principles for longer detention and another for detention for such longer period.
It may be that a State cannot provide for longer detention until Parliament 330 has made the law, but I can see no reason why Parliament cannot do both by the same Act.
In fact, clause (4) (b) contemplates the detention itself to be in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7).
Therefore, the detention can well be under the very law which the Parliament makes under sub clauses (a) and (b) of clause (7).
As to the second point the argument is that Parliament has a discre tion under clause (7) to make a law and it is not obliged to make any law but when our Parliament chooses to make a law it must prescribe both the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months.
I am unable to construe clause (7) (a) in the way suggested by learned counsel for the petitioner.
It is an enabling provision empowering Parliament to prescribe two things.
Parliament may prescribe either or both.
H a father tells his delicate child that he may play table tennis and badminton but not the strenuous game of football, it obviously does not mean that tim child, if he chooses to play at all, must play both table tennis and badminton.
It is an option given to the child.
Likewise, the Constitution gives to Parliament the power of prescribing two things.
Parliament is not obliged to prescribe at all but if it chooses to prescribe it may prescribe either or both.
Clause 7 (a), in my opinion, has to be read distributively as follows: The Parliament may prescribe the circumstance under which a person may be detained for a period longer than three months and Parlia ment may prescribe the class or classes of cases in which a person may be detained for a period longer than three months.
That appears to me to be consonant with sound rules of construction.
Further, the circumstances and the class or classes of cases may conceivably coalesce.
Indeed the Full Bench case No. 1 of 1950 before the Calcutta High Court (Kshitindra Narayan vs The Chief Secretary) itself indicates that the same provision may be read as circumstances or as a classification.
In that case learned counsel conceded that section 12 had prescribed the circumstances but his com plaint was that it had not 331 prescribed the class or classes of cases.
The majority of the Court repelled this contention.
One learned Judge howev er, held that section 12 had prescribed the class or classes of cases but had not prescribed the circumstances.
It is, therefore, clear that the classification itself may indicate the circumstances.
Again, the classification may be on a variety of bases.
It may be according to provinces the detenus come from.
It may be according to the age of the detenus.
It may be according to the object they are supposed to have in view or according to the activities they are suspected to be engaged in.
In this case Parliament has taken five out of the six legislative heads and divided them into two categories.
The detenus are thus classified ac cording to their suspected object or activities endangering the several matters specified in the section.
I do not see why classification cannot be made on the footing of the objectives of the detenus falling in some of the legislative heads, for each legislative head has a specific connotation well understood in law.
If I am correct that there has been a classification then the fact that a person falls within one or the other class may well be the circumstances under which he may be detained for a period longer than three months.
I do not consider it right, as a matter of con struction, to read any further limitation in clause 7 (a) of article 22.
In my judgment Par]lament was not obliged under clause (7) to prescribe both circumstances and classes, and in any case has in fact and substance prescribed both.
I am conscious that a law made by Parliament under article 22 (7)will do away with the salutary safeguard of the opinion of an advisory board.
But it must be remembered that our Constitution itself contemplates that in certain circumstances or for certain class or classes of detenus even the advisory board may not be safe and it has trusted Parliament to make a law for that purpose.
Our preference for an advisory board should not blind us to this aspect of the matter.
It is true that circumstances ordinarily relate to extraneous things, like riots, commotion, 332 political or communal or some sort of abnormal situation and it is said that the framers of the Constitution had in mind some such situation when the advisory board might be done away with.
It is also urged that they had in mind that the more dangerous types of detenus should be denied the privi lege of the advisory board.
I am free to confess that prescription of specific circumstances or a more rigid and definite specification of classes would have been better and more desirable.
But that is crying for the ideal.
The Constitution has not in terms put any such limitation as regards the circumstances or the class or classes of cases and it is idle to speculate as to the intention of the Constitution makers, who, by the way, are the very persons who made this law.
It is not for the Court to improve upon or add to the Constitution.
If the law duly made by Parlia ment is repugnant to good sense, public opinion will compel Parliament to alter it suitably.
Finally, an objection is taken that section 14 of the impugned Act takes away or abridges the right of the detenu to move this Court by appropriate proceedings.
Both clauses (1) and (2) of article 32 speak of enforcement of rights conferred by Part III.
The right to move this Court is given to a person not for the sake of moving only but for moving the Court for the enforcement of some rights conferred by Part III and this Court has been given power to issue direc tions or orders or writs for the enforcement of any of such rights.
In order, therefore, to attract the application of article 32, the person applying must first satisfy that he has got a right under Part III which has to be enforced under article 32.
I have already said that article 19 does not deal with the freedom of the person.
I have also said that articles 21 and 22 provide for protection by insisting on some procedure.
Under article 22 (5) the authority making the order of detention is enjoined, as soon as may be, to communicate to the detenu the grounds on which that order has been made.
This provision has some purpose, name ly, that the disclosure of the grounds will afford the detenu the 333 opportunity of making a representation against the order.
Supposing the authority does not give any grounds at all as distinct from facts referred to in Clause (6).
Surely, the detenu loses a fundamental right because he is prevented from making a representation against the order.
of deten tion.
Suppose the authority hands over to the detenu a piece of paper with some scribblings on it which do not amount to any ground at all for detention.
Then also the detenu can legitimately complain that his right has been infringed.
He can then come to the Court to get redress under article 32, but he cannot show to the Court the piece of paper with the scribblings on it under section 14 of the Act and the Court cannot judge whether he has actually got the grounds which he is entitled to under article 22 (5).
such a case the detenu may well complain that both his substantive right under article 22 (5) ' as well as his right to constitutional remedies under article 32 have been in fringed.
He can complain of infringement of his remedial rights under article 32, because he cannot show that there has been an infringement of his substantive right under article 22 (5).
It appears to me, therefore, that section 14 of the Act in so far as it prevents the detenu from disclosing to the Court the grounds communicated to him is not in conformity with Part III of the Constitution and is, therefore, void under article 13 (2).
That section, howev er, is clearly severable and cannot affect the whole Act.
On this question the views of Meredith C.J. and Das J. of Patna in Criminal Miscellaneous No. 124 of 1950 (Lalit Kumar Barman vs The State) and the majority of the learned Judges of the Calcutta High Court in Full Bench Case No. 1 of 1950 (Kshitindra Narayan vs The Chief Secretary) appear to be correct and sound.
For the reasons I have given above, in my opinion, the impugned Act is a valid law except as to section 14 in so far as it prevents the grounds being disclosed to the Court.
The petitioner before us does not complain that he has not got proper grounds.
Further, the period of his detention under the impugned Act 334 has not gone beyond three months and, in the circumstances, this application should, in my opinion, stand dismissed.
Petition dismissed.
Agent for the petitioner: section Subrahmanyam.
Agent for the State of Madras and Union of India: P.A. Mehta.
|
The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under article 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of articles 13, 19, 21 and 22 of the Constitu tion and was consequently ultra rites and that his detention was therefore illegal: Held, per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALI and MAHAJAN JJ.
dissentinq) that the preventive Detention Act, 1950, with the exception of Sec.
14 thereof did not contravene any of the Articles of the Constitution and even though Sec.
14 was ultra rites inas much as it contravened the provisions of article 9.9, (5) of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Sec.
14 did not affect the validity of the Act as a whole, and the detention of the petitioner was not illegal.
FAZL ALl and MAHAJAN JJ.
Section 12, of the Act was also ultra vires, and since it contravened the very provi sion in the 89 Constitution under which the Parliament derived its compe tence to enact the law, the detention was illegal.
Held, by the Full Court (KANIA CJ., FAZL ALI, PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.) Section 14 of the , contravenes the provisions of article 9.9.
(5) of the Constitution in so far as it prohibits a person detained from disclosing to the Court the grounds on which a detention order has been made or the representation made by him against the order of detention, and is to that extent ultra vires and void.
Per KANIA C.J., PATANJALI SASTRI, MAHAJAN, MUKHERJEA and DAS JJ.
(FAZL ALI J. dissenting).
Article 19 of the Consti tution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub cls.
(a) to (e) and (g) in general, and sub cl.
(d) in particular, of cl.
(1) of article 19 may be restricted or abridged; and the constitution al validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in el.
(5) of the said Article.
DAS J. Article 19 (1) postulates a legal capacity to exercise the rights guaranteed by it and if a citizen loses the freedom of his person by reason of lawful detention as a result of a conviction for an offence or otherwise he cannot claim the right s under sub cls.
(a) to (e) and (g) of article 19 (1); likewise if a citizen 's property is compulsorily ac quired under article 31, he cannot claim the right under sub el.
(f) of article 19 (1) with respect to that property.
In short the rights under sub cls.
(a) to (e) and (g) end where lawful detention begins and therefore the validity of a preventive detention Act cannot be judged by Arc.
19 (5).
MAHAJAN J. Whatever be the precise scope of article 19 (1) (d) and Art.19(5) the provisions of article 19(5) do not apply to a law relating to preventive detention, inasmuch as 'there is a special self contained provision in article 22 regulating it.
FAZL ALI.J.
Preventive detention is a direct infringe ment of the right guaranteed in article 19 (1) (d), even if a narrow construction is placed on the said sub clause, and a law relating to preventive detention is therefore subject to such limited judicial review as is permitted by article 19 (5).
Per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALl J. dissenting).
The concept of the right "to move freely throughout the territory of India" referred to in article 19 (1) (d), of the Constitution is entirely differ ent from the concept of the right to "personal liberty" referred to in article 21, and article 19 should not, therefore, be read as controlled by the provisions of article 21.
The view that article 19 guarantees substantive rights and article 21 prescribes the procedure is incorrect.
DAs J. Article 19 protects some of the important attributes of personal liber ty as independent rights and the expression "personal liber ty" is used in article 21 as a compendious term 90 including within Rs meaning all varieties of rights which go to make up the personal liberties of men.
FAZL ALl J. Even if it be assumed that article 19 (1) (d) does not refer to " personal liberty" and that it bears the restricted meaning attributed to it,that is to say, R signi fies merely the right to move from one locality to another, preventive detention must be held to affect this limited right of movement directly and substantially.
One of the objects of preventive detention is to restrain a person detained from moving from place to place so that he may not spread disaffection or indulge in dangerous activities in the places he visits.
The same consideration applies to the cases of persons who are interned or externed.
Hence, externment, interment and certain other forms of restriction on movement have always been treated as kindred matters belonging to the same group or family, and the rule which applies to one must necessarily apply to the others.
Per KANIA C. J ,, PATANJALI SASTRI and DAS 35.
(MAHAJAN 3.
dissenting).
Article 22 does not form a complete code of constitutional safeguards relating to preventive detention.
To the extent that provision is made in article 9.9, it cannot be controlled by article 9,1; but on points of procedure which expressly or by necessary implication are not dealt with by article 22, article 9.1 will apply.
DAS J. article
21 protects substantive rights by requiring a procedure and article 9.9.
lays down the minimum rules of procedure that even the Parliament cannot abrogate or overlook.
MAHAJAN J. article
99. contains a self contained code of constitutional safeguards relating to preventive detention and cannot be examined or controlled by the provisions of article 21.
The principles underlying article 21 are however kept in view in article 22 and there is no conflict between these articles.
MUKHERJEA J. Even assuming that article 22 is not a self contained code relating to preventive detention and that article 21 would apply, it is .not permissible to supplement article 22 by the application of rules of natural justice.
FAZL ALI J. article
22. does not form an exhaustive code by itself relating to preventive detention.
Parliament can make further provi sions and if it has done so article 19 (5) may be applied to see if those provisions have transgressed the bounds of reasonableness.
Per KANIA C.J., MUKHERJEA and DAS JJ.
(FAZL ALI J. dis senting).
In article 9.1 the word 'law" has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice; and "procedure established by law" means procedure established by law made by the State, that is to say, the Union Parliament or the Legislatures of the States.
It is not proper to construe this expression in the light of the meaning given to.the expression "due process of law" in the American Constitution by the Supreme Court of America.
FATANJALI SASTRI cl. "Law" in article 21 does not mean the jus naturale of civil law but means 91 positive or State made law.
"Procedure established by law" does not however mean any procedure which may be prescribed by a competent legislature, but the ordinary well estab lished criminal procedure, i.e., those settled.
usages and normal modes of procedure sanctioned by the Criminal Proce dure Code, which is the general law of criminal proce dure in this country.
The only alternative to this con struction, if a constitutional transgression is to be avoid ed is to interpret the reference to "law" as implying a constitutional 'amendment pro tanto, for it is only a law enacted by the procedure provided for such amendment that could modify or override a fundamental right without contra vening article 13 (2).
FAZL, ALI J.
There is nothing revolutionary in the view that "procedure established by law "must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law, and which have been stated by the American Courts and jurists as consisting in (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure.
These four principles are really different aspects of the same right, namely, the right to be heard before one is condemned.
Hence the words "procedure established by law ", whatever its exact meaning be, must necessarily include the principle that no person shall be condemned without hearing by an impartial tribunal.
Per KANIA C.J., FAZL ALI, PATANJALI SASTRI, MAHAJAN and DAS JJ.
Section 3 of the , does not delegate any legislative power to an executive officer but merely confers on such officer a discretion to enforce the law made by the legislature, and is not there fore invalid on this ground.
The fact that the section does not provide an objective standard for determining whether the requirements of law have been complied with, is not a ground for holding that it is invalid.
FAZL ALI J. Section 3 is however a reasonable provision only for the first step, i.e., for arrest and initial detention and must be followed by some procedure for testing the so called subjective satisfaction, which can be done only by providing a suitable machinery for examining the grounds on which the order of detention is made and considering the representations of the persons detained in relation to those grounds.
Per KANIA C. J., MAHAJAN and DAS JJ.
Section 7 of the said Act is not invalid merely because it does not provide for an oral hearing or an opportunity to lead evidence but only gives right to make a representation.
Right to an oral hearing and right to give evidence are not necessarily implied in the right to make a representation given by article 22.
Per KANIA C.J., and MAHAJAN J.
The provision contained in Sec.
11 that a person may be detained for such period as the 12 A 92 State thinks fit does not contravene article 22 (7) and it is not therefore invalid.
Per KANIA.
C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALI and MAHAJAN JJ.
dissenting).
Article 22 (7) means that Parliament may prescribe either the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without reference to an advisory board.
It is not necessary that the Parliament should prescribe both.
The matters referred to in clauses (a) and (b) of sub see.
(1) of Sec. 12 constitute a sufficient description of such circumstances or classes of cases and Section 12 is not therefore open to the objection that it does not comply with article 22 (7) DAS J. Parliament has in act and substance prescribed both in clauses (a) and (b) of sub sec.
(1) of Sec. 12.
FAZL ALI and MAJAN JJ.
Article 22 (7) Means that both the circumstances and the class or classes of cases (which are two different expressions with different meanings and connotations) should be prescribed, and the prescription of one without the other will not be enough.
The enumeration of the subjects for reasons connected with which a law of preventive detention could be made contained in els.
(a) and (b) of sub see.
(1) of Sec.12 does not amount to prescribing the circumstances under which, or the class or classes of cases in which, a person can be detained for more than three months.
Per KANIA C.J.
While it is not proper to take into consideration the individual opinions of members of Parlia ment or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted.
PATANJAYLI SASTRI J.
In construing the provisions of an Act, speeches made in the course of the debates on the bill should not be taken into consideration.
MUKHERJEA J.
In construing the Constitution it is better to leave out of account the debates in the Constituent Assembly, but a higher value may be placed on the report of the Drafting Committee.
|
minal Appeal No. 830 of 1985.
From the Judgment and Order dated 30.7.85 of the Allahabad High Court in Crl.
Revision No. 1937 of 1983.
M.S. Gujral, A.K. Srivastava and Serva Mitter for the Appellant.
R.C. Verma and A.S. Pundit.for the Respondent.
The appellant, was convicted under Sections 120 B, 419, 420, 468, and 471 of the Penal Code.
lie was sentenced to undergo rigorous imprisonments for different periods under the aforesaid Sections.
The appeal filed on behalf of the appellant was dismissed by the learned additional Sessions Judge, Ghaziabad.
The High Court, on revision application being filed on behalf of the appellant set aside his conviction under Section 120 B, but the conviction and sentence under other Sections mentioned above passed by the trial Court were affirmed.
According to the prosecution case, the appellant, established a firm by the name of Seemak Industrial Corporation at Ghaziabad.
The account in the bank was opened in the name of one Vijai Kumar and the aforesaid Industrial Corporation was registered in the Sales Tax Department.
The appellant applied for loan before the U.P. Small Industries Corporation and got a sum of Rs. 39,352.50, in the name of Seemak Industrial Corporation.
Later it was discovered that the aforesaid Seemak Industrial Corporation, was a fake concern and the appellant had cheated, even the U.P. Small Industries Corporation, in respect of the amount advanced by them.
The Trial Court, the Appellate Court as well as the High Court have gone into details of the materials on record for purpose of holding, that the charges framed against the appellant had been established and as such there was no occasion to interfere with the conviction and sentence passed against him.
So far the present appeal is concerned, leave was granted as early as in the year 1985 by this Court, but it has been listed for hearing after about 8 years.
The learned Counsel.
appearing for the appellant, after some arguments on merit confined his submissions to the question of sentence only.
lie pointed out that offences aforesaid had been committed by the appellant, as early as in the year 1973, more than 20 years from now and as such a compassionate view should be taken of the whole matter especially when the amount in respect of which the offences are alleged to have been committed is not excessive.
He pointed out that the appellant has remained in jail for some time, in pursuance of the order of conviction and sentence and as such he need not be sent to jail again.
An affidavit detailing the mitigating circumstances has also been filed by the appellant before us.
Taking all facts and circumstances into consideration, by our order dated 26th April, 1993 we directed the appellant to first deposit an amount of Rs. 40,000 (the loan amount) with the U.P. Small Industries Corporation Ltd. Pursuant to that order Rs. 40.000 has been deposited with the U.P. Small Industries Corporation Ltd., on 4 5 1993 and original receipt granted by the Manager of the said Corporation was produced before us.
The zerox copy, of the said original receipt has been kept on record and the original returned to the learned counsel for the appellant.
An affidavit has also been filed on behalf 'of the appellant stating about 902 the aforesaid deposit.
In the peculiar facts and circumstances of the case while maintaining the conviction of the appellant, we reduce the sentence of imprisonment under different Sections mentioned above to the period already undergone by him.
The appellant, shall however pay a fine of Rs. 2,000 and in default of payment thereof, he shall undergo rigorous imprisonment for a period of one month.
The appeal is allowed in part.
The deposit of Rs. 40,000 made by the appellant with the U.P. Small Industries Corporation Ltd., shall be adjusted towards the amount advanced by the said Corporation to the appellant.
The Corporation shall of course be at liberty to take steps for realisation of any further sum.
which may be due.
against the appellant.
U.R. Appeal partly allowed.
|
The appellant was charged with cheating the U.P. Industrial Corporation of Rs. 39,352.50 by registering a take concern, and taking in its name.
Three courts concurrently found the charges against him established.
On the question of sentence, it was contended that more than 20 % cars had elapsed; the amount involved was not excessive and other mitigating circumstances were placed (in the record.
Partly allowing the appeal, this Court HELD:1.
The appellant had deposited Rs. 40,000/ (the loan amount) as directed.
(901 G) 2.
In the peculiar facts and circumstances of the case, conviction maintained but sentence of imprisonment reduced to the period already undergone, and a fine of Rs. 2,000/ , or one month R.I. in lieu thereof.
(902 B)
|
ivil Appeal No. 3154 of 1982.
From the Judgment and Order dated 28.9.1981 of the Allahabad High Court in S.A. No. 1874 of 1970.
Satish Chandra, S.N. Singh, T.N. Singh, H.L. Srivastava and Sudama Ojha for the Appellants.
U.R. Lalit and R.D. Upadhyaya for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This appeal is directed against the judgment dated 28 9 1981 of the High Court of Allahabad in Second Appeal No. 1874 of 1970.
167 The plaintiff respondent filed the suit alleging inter alia that before enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred to as "Zamindari Abolition Act", defendants Nos. 3 to 25 were the tenants in chief of the plots in suit and his father Munni Lal was their sub tenant; that Munni Lal died in 1951 leav ing behind four sons including the plaintiff respondent; that remaining three brothers of the plaintiff had separated and consequently the plaintiff became sole tenant; that Munni Lal was recorded occupant in Khasra 1356 Fasli and in cultivatory possession in Khasra 1359 Fasli and consequen tially he acquired adhivasi rights and then sirdari rights, the rights of defendants 3 to 25 extinguished under section 240 A of the Zamindari Abolition Act; that in 1968, however, defendants Nos. 1 and 2 obtained fictitious sale deed from defendants Nos. 3 to 25 in respect of the plots in suit.
They had started interfering with the plaintiff 's possession and, hence, the plaintiff respondent filed the suit for permanent injunction.
Defendants Nos. 1 to 3, 5 to 7, 13 and 14 contested the suit.
They denied the plaintiff 's claim and disputed that the plaintiff 's father, Munni Lal, was the sub tenant or that he acquired adhivasi rights or sirdari rights.
It was further pleaded that the plaintiff or his father was never in possession of the plots in suit.
The suit for permanent injunction was dismissed.
Against the judgment of the trial court, the plaintiff respondent preferred Appeal No. 321 of 1969 which was dis missed by the first appellate court.
The Second Appeal No. 1874 of 1970, filed before the High Court of Allahabad against the judgment of the first appellate court, was allowed on 28 9 1981.
The respondent based his title on three grounds, namely, (i) that his father Munni Lal was recorded occupant in Khasra 1356 Fasli (be ginning from 1.7.1948 and ending with 30.6.1949) and became adhivas under section 20(b)(i) of the Zamindari Abolition Act; (2) that his father Munni Lal was in cultivatory possession of the disputed land it Khasra 1359 Fasli (beginning from 1.7.1951 and ending with 30.6.1952 and consequently he became adhivasi under section 3 of the U.P. Land Reforms (Supplementary) Act, (U.P. Act No. 31 of 1952);and (3) that his father Munni Lal was sub tenant over the disputed land and, there fore, he became an adhivasi and consequently the sirdar under the provisions of the zamindari Abolition Act.
The trial court and the first appellate court recorded finding of 168 facts to the effect that the plaintiff 's father Munni Lal was not in cultivatory possession of 1359 Fasli and there fore he could not get adhivasi right under section 3 of the U.P. Land Reforms (Supplementary) Act, 1952.
Both the courts further observed that the plaintiff 's father was not a recorded occupant within the meaning of section 20(b)(i) of the Zamindari Abolition Act, as the entry of his name in column 6 of the Khasra 1356 Fasli was suspicious, not being supported by Khatauni entry.
It was further held that as his father died in 1951 before the date of vesting i.e. 1.7.1952 (when the zamindari was abolished in U.P. under the provi sions of Zamindari Abolition Act), the plaintiff is not entitled to the benefit of becoming adhivasi under section 20(b)(i) of the Zamindari Abolition Act.
The trial court and the first appellate court also found that no contract or sub tenancy between Munni Lal and the proforma defendants was proved.
The High Court held the view that the approach made by the courts below was wrong.
The question that arose for decision in the suit was whether the appellant 's father was a sub tenant? The learned Single Judge noticed that if Munni Lal was a sub tenant, his heir being the adhivasi and the appellant must, therefore, suc ceed.
The evidence relating to the sub tenancy and conse quent possession was therefore, considered in detail and the learned Judge concluded that Munni Lal was in cultivatory possession of the land in 1356 Fasli as a sub tenant.
His rights as sub tenant devolved on the appellant who continued in possession as such and became adhivasi and rights of defendants 3 to 14 were extinguished under the Zamindari Abolition Act and defendants could not interfere with appel lants possession.
In this view the appellant was granted a decree reversing the decision of the lower courts.
The main contention advanced on behalf of the appellants before us is that the decision having been rendered by the trial court and the first appellate court on the basis of the finding of fact regarding the right claimed and the possession alleged, in the absence of any substantial ques tion of law, there was no jurisdiction of the High Court under section 100 C.P.C. to disturb the finding of a concur rent nature and upset the decision.
The High Court, while exercising its power under section 100 C.P.C., has no juris diction to interfere with the finding of fact recorded by the first appellate court.
Reliance was placed on V. Rarna chandra Ayyar & Anr.
vs Ramalingam Chettiar & Anr., AIR 1963 SC 302.
Section 100(1)(c) refers to a substantial error or defect in the procedure.
The error or defect in the proce dure to which the clause refers is not an error or defect in the appreciation of 169 evidence adduced by the parties on the merits.
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly errone ous, that cannot be said to introduce a substantial error or defect in the procedure.
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure.
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure.
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision as held in Madan Lal vs Gopi, ; The substantial issue in the present suit was whether the respondent was in possession of the disputed land.
The respondent claimed possession under his father as sub tenant and thereafter as sirdar.
In support of his claim respondent relied on the entries in the revenue records and the re ceipts for payment of rent.
The effect of these documents had been wholly ignored by the lower courts on the assump tion that these were fabricated.
The U.P. Zamindari Aboli tion Act came into force on July 1, 1952.
Section 20(b)(i) of the Act provided that every person, recorded as occupant of a land in the Khasra or Khatauni of 1356 Fasli prepared under sections 28 and 33 of the U.P. Land Revenue Act 190 1, be called the adhivasi of the land.
This Court in Amba Prasad vs Abdul Noor Khan & Ors., ; examined the scheme of the section and held that the title to posses sion as adhivasi depends on the entry in the Khasra of 1356 Fasli.
The section eliminates enquiries into possession in accepting the record in the Khasra.
The Court observed at page 808: "The word 'occupant ' is not defined in the Act.
Since khasra records possession and enjoyment the word 'occupant ' must mean a person holding the land in possession or actual enjoyment.
The khasra, however, ma mention the proprietor, the tenant, the sub tenant and other person in actual pos session, as the case may be.
by occupant is meant the person in actual possession it clear that between a proprietor and a tenant the tenant and between a tenant and the sub tenant the latter and 170 between him and a person recorded in the remarks column as "Dawedar qabiz" the dawedar qabiz are the occupants. ' ' In Nath Singh & Ors.
vs The Board of Revenue & Ors., ; in answering the contention that the cor rectness of the entry in the record of Khasra of 1356 Fasli could be gone into and where the respondents are recorded only as sub tenant and not as occupant, they could not get the benefit of section 20(b)(i) of the Act, this Court held as under: "The record of rights for the year 1356F. had not been corrected afterwards.
We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became sub tenants after the decision in favour of the landlord, Ram Dhani Singh.
The last decision of this Court also shows that as between the tenant and the sub tenant the entry in the record of rights in favour of the sub tenant makes him the occupant entitled to the adhivasi rights under section 20 of the Act.
" In this case the Khasra entry for 1356 Fasli Ex 4 showed that the respondent 's father Munni Lal was sub tenant.
As rightly stated by the High Court, it is not for the plain tiff to prove that this entry is correct.
It was for the defendants to show that the entry had been introduced sur reptitiously out of ill will or hostility.
In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the respondent 's father.
The Khasra entry of 1371 Fasli and 1372 show the respondent 's name as person in possession.
It is clear indication that possession of the subtenant continued with the respondent.
The rent receipts of the year 1929 and subsequent years are not required to be proved by the re spondent as pointed out by the learned Judge.
These furnish evidence of possession as sub tenant.
We agree that the lower appellate court was not justified in ignoring these documents.
The High Court was, therefore, well within its powers in appreciating the evidence and arriving at its own conclusion.
The contention that the second appeal abated on account of non filing of substitution application after the death of defendants Nos. 6, 10 and 11 had been reiterated before us.
These defendants were only proforma parties and the High Court was right in holding hat appeal did not abate.
We may refer to The State of Punjab vs 171 Nathu Ram; , where it is held "that ordinari ly the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appel lants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court.
" The Civil Court had jurisdiction to try the suit for injunction when the question of title arose only incidentally.
The objection to jurisdiction of the Civil Court to try the suit on the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one for permanent injunction and the question of title arises only incidentally.
We find no merit in the appeal which is accordingly dismissed.
No order as to costs.
G.N. Appeal dis missed.
|
The plaintiff respondent claimed that before the U.P. Zamindari Abolition and Land Reforms Act, 1950 came into force, his father was a sub tenant under defendants 3 to 25 and after his father 's death, the other 3 sons separated from the plaintiff and consequently he has become the sole tenant.
According to him, his father was recorded occupant of Khasra 1356 Fasli (1.7.1948 to 30.6.1949) and was in cultivatory possession in Khasra 1359 Fasli (1.7.1951 to 30.6.1952) as a result of which he had acquired adhivasi rights and sirdari rights, and the rights of defendants 3 to 25 extinguished under section 240 A of the said Act.
He alleged that in 1968, defendants I and 2 obtained fictitious sale deed from defendants Nos. 3 to 25 in respect of the said land and started interfering with his possession.
He, therefore, filed a suit for permanent injunction.
The suit was contested by some of the defendants who pleaded that neither the plaintiff nor his father was in possession of the said land at any point of time and there was no question of sub tenancy or acquiring of adhivasi/sirdari rights.
The trial court dismissed the suit.
The appeal preferred by the plaintiff respondent was dismissed by the first appellant court.
The trial court as also the first appellate court held that the respondent was not entitled to become an adhivasi under section 20(b)(i) of the Act since his father died in 1951 before the date of vesting i.e. 1.7.1952.
Both the courts also held that his father was not in cultivatory possession of Khasra 1359 Fasli and, therefore, he could not get adhivasi rights under section 3 of the U.P. Land Reforms (Supple 165 mentary) Act, 1952.
It was also held that there was no contract or sub tenancy in the name of his father.
The plaintiff respondent preferred an appeal before the High Court which allowed the appeal and granted a decree reversing the decision of the courts below.
Aggrieved, the appellants have flied the present appeal contending inter alia that since there were concurrent findings of facts by the trial court and the first appellate court, and in the absence of any substantial question of law, the High Court had no jurisdiction under section 100 C.P.C. to disturb the concurrent findings of facts.
Dismissing the appeal, this Court, HELD: 1.
Section 100(1)(c) of the Code of Civil Proce dure refers to a substantial error or defect in the proce dure.
The error or defect In the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits.
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded inconsequence is grossly erro neous, that cannot be said to introduce a substantial error or defect in the procedure.
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure.
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure.
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequent matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision.
[168H; 169A C] Madan Lal vs Gopi, ; relied on.
V. Ramachandra Ayyar & Anr.
vs Ramalingam Chettiar & Anr., AIR 1963 SC 302 referred to.
Section 20(b)(1) of the Act eliminates enquiries into possession in accepting the record in the Khasra.
In the instant case the Khasra entry for 1356 Fasli showed that the appellant 's father was the subtenant.
It is not for the appellant to prove that this entry Is incorrect.
It was for the defendants to show that the entry had been introduced 166 surreptitiously out of ill will of hostility.
In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the appellant 's father.
The Khasra entry of 1371 Fasli and 1372 show the appellant 's name as person in possession.
It is clear indication that possession of the sub tenant con tinued with the appellant.
The rent receipts of the year 1929 and subsequent years are not required to be proved by the appellant as pointed out by the learned Judge.
These furnish evidence of possession as sub tenant.
The lower appellate court was not justified in ignoring these docu ments.
The High Court was, therefore, well within its power in appreciating the evidence and arriving at its own conclu sion.
[170B, E G] Amba Prasad vs Abdul Noor Khan & Ors., ; and Nath Singh & Ors.
vs The Board of Revenue & Ors., ; relied on.
Though the revenue courts had exclusive jurisdiction, the civil court had jurisdiction to try the suit for injunc tion when the question of title arose only incidentally.
[171B] 4.
The High Court was right in holding that the appeal did not abate on account of non filing of substitution application after the death of certain defendants.
[170H] The State of Punjab vs Nathu Ram, ; relied on.
|
Appeal No. 1762 of 68.
(Appeal from the Judgment and Decree dated 18 5 1967 of the Calcutta High Court in Appeal from Original Decree No. 183/56).
980 G.L. Sanghi and Girish Chandra, for the Appellant.
Purushottam Chatterjee and Sukumar Ghose, for the respond ent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by certificate is from the judgment dated April 11, 1968 of the High Court at Calcutta.
The respondent filed this suit against the appellant in the High Court at Calcutta and claimed Rs. 76,691 2 0 with interest or in the alternative Rs. 78,204 8 4.
The respond ent 's case in short is that the respondent delivered to the defendant appellant pursuant to several orders from time to time goods described as Mac Intyre Sleeves and other goods.
The respondent alleged in the plaint that the appellant "wrongfully purported to reject the Mac Intyre Sleeves" supplied by the respondent.
The respondent further alleged that the rejection was unlawful inasmuch as the rejection was after lapse of reasonable time.
The respondent claimed the sum mentioned in the plaint as reasonable price of the goods.
The alternative case of the respondent is that the plaintiff respondent was entitled to the sum for supply of Mac Intyre Sleeves because the same were not supplied gratu itously.
The appellant denied in the written statement that there was any enforceable contract, and, therefore, the respondent was not entitled to sue for price of the goods delivered.
The appellant took the plea bar of the suit that there was no contract in compliance with section 175 of the Gov ernment of India Act, 1935.
The appellant pleaded to.
the alternative case of the respondent by alleging that the goods were lawfully rejected because the goods were found not to be of the correct description and quality.
The appellant further denied that the rejected goods were re tained after lapse of reasonable time without intimating the rejection.
At the trial the respondent found that the claim for the sum of money as price of goods could not be sustained be cause of lack of enforceability of contract.
The respondent therefore sought to make the appellant liable to compensate the respondent by reason of provisions contained in section 70 of the Indian Contract Act.
Counsel for the appellant raised the plea at the trial that there.
was ' no foundation in the plaint for any case under section 70 of the Indian Contract Act.
The three ingredients to support the cause of action under section 70 of the Indian Contract Act are these: First, the goods are to be delivered lawfully or anything has to be done for another person lawfully.
Second, the thing done or the goods delivered is so done or delivered "not intending to do so gratuitously".
Third, the person to whom 'the goods are delivered "enjoys the benefit thereof".
It is only when the three ingredients are pleaded in the plaint that a cause.
of action is constituted under section 70 of the Indian Contract Act.
981 If any plaintiff pleads the three ingredients and proves the three features the defendant is then bound to make compensa tion in respect of or to restore the things so done or delivered.
The allegation in the plaint in the present case was as follows.
"In any event the plaintiff is entitled to the said sum of Rs. 26,248 7 0, and Rs. 50,442 11 0 with interest for the said Mac Intyre Sleeves, Copper Strips and Stay Shackles for the same were not supplied gratuitiously".
The plaint lacked the two other essential features to constitute a cause of action under section 70 of the Indian Contract Act.
These were that the respondent delivered the goods lawfully to the appellant and that the appellant enjoyed the benefits thereof.
The Court should not have allowed the respondent to go to trial in the present case with a Claim under section 70 of the Indian Contract Act in the absence of proper pleadings.
In view of the fact that parties went to trial and issues were raised on claims under section 70 of the Indian Con tract Act and the litigation went through the course of trial and appeal we do not desire to non suit the respondent at this stage.
The trial court held that the goods were not properly rejected.
But the trial court also held that the wordings of the rejection memos negatived any case of enjoyment of benefit.
The trial court said that the documents show that the goods were not utilised or used by the appellant and the appellant disclaimed interest in the goods.
The trial court also found that the respondent accepted the goods.
The findings are inconsistent.
The trial court held that the appellant offered to restore the goods to the respondent but the respondent refused to take them back.
The trial court dismissed the suit.
When the trial court found that the goods were accepted there could be no question of restora tion.
The trial court should have decreed the suit.
The Division Bench on appeal held that the goods were accepted by the appellant.
The Division Bench held that title to the goods passed and if title passed then the whole context of section 70 of the Indian Contract Act would be irrelevant.
The judgment of the Division Bench is con fused.
The Division Bench treated the case of the respond ent to be "a claim for damages for wrongful rejection".
Under the Sale of Goods Act when there is any enforceable contract the seller may claim for price of goods sold or damages for non acceptance.
The present case could not be supported on the footing of any enforceable contract giving rise to damages for non acceptance or wrongful rejection.
The reasoning of the Division 'Bench in allowing the claim is erroneous.
The evidence in the present case as found by the trial court is that the signatures of Rodericks and Francis on the challans indicate acceptance of the goods, and, ,therefore, the rejection is wrongful.
The finding of the trial court that there was acceptance of the goods obviously repels any plea of rejection of the goods.
The error of the trial court was that it found the goods were accepted and yet dismissed the suit on the rea soning that the appellant 982 offered to restore the goods.
The error of the Division Bench was in decreasing the suit not _on the principles of section 70 of the Indian Contract Act but 'on damages for non acceptance of goods on the footing of unenforceable contract for sale of goods.
In view of the fact that there was acceptance of the goods no question of restoration arises.
Counsel for respondent argued that restoration under section 70 of the Indian Contract Act meant that the defendant would have to restore the goods to the plaintiff by delivering the same to the plaintiff.
This contention of the plaintiff respondent is utterly unsound.
As long as there is intimation by the defendant to the plaintiff that the plaintiff can take back the goods the defendant evinces intention of restoration.
In the present case no question of restoration arises be cause of the acceptance of the goods.
The respondent in view of the trial court and the Divi sion Bench of the High Court allowing the respondent to go on with the claim under section 70 of the Indian Contract Act became entitled to compensation for the goods accepted.
The High Court found that the respondent had received a sum of Rs. 7,602 0 0 out of the claim of the claim under sec tion 70 of the Indian contract Act and the respondent has been given a decree for Rs. 69,069 1 0 we order that the parties will pay and bear their own costs in this appeal.
We specify the period of two months for payment of the aforesaid sums of money Rs. 76,671 1 0.
The High Court gave a decree for the sum of Rs. 69,069 1 0.
For the foregoing reasons there will be a decree for Rs. 69.0169 1 0.
The High Court awarded half costs of the trial and full costs of the appeal.
We do not wish to disturb those two orders for costs.
In view of the fact that there was no proper case pleaded to support Appeal dismissed.
|
In a suit for the recovery of price of "Mac Intyre Sleeves, "supplied to the appellant, but alleged to have been wrongfully ' rejected after a considerable time, the respondent/plaintiff sought to make the appellant/defendant liable to compensate by reasons of provisions containing in Section 70 of the Indian Con tract Act.
The trial Court found that the goods were accepted and it dismissed the suit on the reasoning that the appellant offered to restore the goods.
But .on appeal, the Division Bench decreed the suit, not on the principles of Section 70 of the Contract Act, but treating the case of the respondent to be a claim for dam ages for wrongful rejection and for non acceptance of goods on the footing of uninforceable contract for sale of goods".
Dismissing the appeal by certificate the.
Court, HELD: (1) The three.
ingredients to support the cause of action undersection 70 of the Indian Contract Act are: First, the goods are to be delivered lawfully or anything has to be done for another person lawfully.
Second, the thing done.
or the ' goods delivered is so, done or delivered "not intending to do so gratuiously".
Third, the person to whom the goods are delivered "enjoys the benefit thereof".
It is only when the three ingredients are.
pleaded in the plaint that a cause of action is constituted under section 70 of the India Contract Act.
If any plaintiff pleads three ingredients and proves the three features the defendant is then bound to make compensation in respect .of or to re store the things so done or delivered.
[980 G H, 981 A] (2) Courts should not allow the parties to go to trial in the absence of proper pleadings.
In the instant case, the Court should not have allowed the respondent to go to trial with a claim under section 70 of the Indian Contract Act.
[981 B C] (3) When parties went to trial and issues were raised on claims and the litigation also went through the. course of trial and appeal, non suiting for want of proper plead ings at the appellate stage, by the Supreme Court is not desirable.
[981 C] (4) Restoration under section 70 of the Indian Contract Act does not mean restoration of "goods by actual delivery".
Intimation to take back the goods rejected evinces intention of restoration.
[982 B C]
|
Special Leave Petition No. 8862 of 1986 From the Judgment and order dated 26.3.1986 of the Karnataka High Court in C.R.P. 3084 of 1985.
Padmanabha Mahale, K.K. Gupta and Mrs. Leelawati Mahale for the Petitioner.
The order of the Court was delivered by SEN, J.
In this special leave petition the short point involved is whether by reason of sub r.
(2) of r. 92 of order XXI of the Code of Civil Procedure, 1908, the deposit required by r. 89 not having been 736 made within thirty days from the date of sale, the application made by the judgment debtor was not maintainable.
Sub r.
(2) of r. 92 has been amended by section 72 of the Code of Civil Procedure (Amendment) Act, 1976 by adding the words "the deposit required by that rule is made within thirty days from the date of sale", the following ' 'or in cases where the amount deposited under rule 89. within such time as may be fixed by the Court" to prevent any controversy as to the power of the Court to extend the time to make good the deficit.
Unfortunately, the words added speak of the deficiency owing to 'any clerical or arithmetical mistake ' on the part of the depositor.
The amended r. 92(2) now reads: "92(2).
Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be dificient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
" The failure to deposit the amount entails confirmation of sale under O.XXI, r. 91(1) and thereupon the sale becomes absolute.
The limitation prescribed for an application under O.XXI, r. 89 was thirty days from the date of sale under Schedule I, article 166 of the Limitation Act, 1908, now replaced by article 127 of the .
The words "may apply to have the sale set aside on his depositing in Court" etc.
show that not only the application, but also the deposit, should be made within thirty days from the date of sale.
It is not enough to make the application within thirty days.
Nor is it enough to make the deposit within thirty days.
Both the application and the deposit must be made within thirty days from the date of sale.
article 127 of the has now been amended by Act 104 of 1976 and the words 'sixty days ' have now been substituted for the words 'thirty days '.
As a result of the amendment, the limitation for an application to set aside a sale in execution of a decree, including any such application by a judgment debtor under O.XXI, r. 89 or r. 90 is therefore sixty days now.
Such being the law, there is need for an appropriate amendment of sub r.
737 (2) of r. 92 of the Code.
Under O.XXI, r. 89 as it now exists, both the application and the deposit must be made within thirty days of the sale.
The failure to make such deposit within the time allowed at once attracts the consequences set forth in sub r.
(2) of r. 92.
This is an unfortunate state of things and Parliament must enact the necessary change in law.
In the present case, the auction was held on July 26, 1985.
The decree holder brought to sale in execution of a money decree for Rs.21,948.45p., the property of judgment debtor No. 1 comprised of a house and open site appurtenant thereto.
The highest bid of Rs.22,500 offered by the auction purchaser was accepted and the bid was knocked down in his favour.
The executing Court fixed the case for confirmation of sale on September 30, 1985.
In the meanwhile, judgment debtor No. 1 deposited Rs.22,000 on August 29, 1985 towards payment of the decretal amount together with an application under O.XXI, r. 90 read with section 151 of the Code for setting aside the sale.
Again, on September 6, 1985 he made another application purporting to be under O.XXI, r. 89 read with section 151 of the Code and made a deposit of the balance amount.
The auction purchaser objected to the entertainment of the application contending inter alia that the deposit required by r. 89 not having been made within thirty days of the date of sale as required by r. 92(2) of the Code, the sale was liable to be confirmed under sub r.
(1) thereof.
It is undisputed that the judgment debtor has deposited the entire decretal amount together with 5% of the purchase money by way of commission to the petitioner auction purchaser.
The Principal Munsif, Dharwar by his order dated October 4, 1985 overruled the objection raised by the petitioner.
A learned Single Judge (Kulkarni, J.) by his judgment dated March 26, 1986 declined to interfere with the order of the learned Munsif setting aside the sale.
The learned Judge relying upon the decision of the Madras High Court in Thangammal & Ors.
vs K. Dhanalakshmi & Anr., AIR 1981 Mad.
254 held that the provisions of O.XXI, rr. 89 and 92(2) of the Code and that of article 127 of the should receive a harmonious construction.
In that view, the learned Judge held that the judgment debtor No. 1 having deposited the decretal amount together with 5% of the purchase money and having made the application under O.XXI, r. 89 of the Code within sixty days of the sale i.e. within the period as provided by article 127 of the , the sale was liable to be set aside.
The learned Single Judge has brought about the inconsistency between sub r.
(2) of r. 92 of O.XXI of the Code and article 127 of the Limitation 738 Act and suggested that steps should be taken to remove this inconsistency.
We fully endorse the view expressed by the learned Single Judge.
In the result, the special leave petition must fail and is dismissed.
A.P.J. Petition dismissed.
|
The auction of the property of judgment debtor No. 1, in execution of a money decree, was held on July 26, 1985.
The highest bid of Rs.22,000 offered by the auction purchaser was accepted.
The case for confirmation of sale was fixed on September 30, 1985.
In the mean while, judgment debtor No. l deposited the bid amount on August 29, 1985 together with an application under O,XXI,r.90 read with section 151 of the Civil Procedure Code for setting aside the sale.
On September 6, 1985, he made another application under O.XXI r. 89 read with section 151 of the Code and made a deposit of the balance amount.
The objection raised by the auction purchaser that the deposit required by r. 89 not having been made within 30 days of the date of the sale as required by r. 92(2) of the Code, the sale was liable to be con firmed under sub r.
(1) thereof, was overruled by the Principal Munsif.
This order was upheld by the High Court.
Dismissing the SLP, this Court, ^ HELD: 1.
Under O.XXI, r. 89 as it now exists, both the application and the deposit must be made within 30 days of the sale.
The failure to make such deposit within the time allowed at once attracts the consequences set forth under sub r.
(2) of r. 92.
[737 A B] 2.
The limitation prescribed for an application under O.XXI, r. 735 89 was 30 days from the date of sale under Schedule I, article 166 of the Limitation Act, 1908, now replaced by article 127 of the . article 127 has now been amended by Act 104 of 1976 and the words 'sixty days ' have been substituted for the words 'thirty days '.
[736 F G] 3.
As a result of this amendment, the limitation for an application to set aside a sale in execution of the decree including any such application by a judgment debtor under O.XXI, r. 89 or r.90 is, therefore, sixty days now.
[736 G] 4.
Sub r.
(2) of r. 92 of O.XXI of the Code is inconsistent with article 127 of the .
The Parliament must enact the necessary change in law for an appropriate amendment of sub r.
(2) of r. 92 of the Code.
[737 A B] In the instant case, the judgment debtor No. 1 having deposited the decretal amount together with 5% of the purchase money and having made the application under O.XXI, r. 89 within sixty days of the sale i.e. within the period as provided by article 127 of the , the sale was liable to be set aside.
[737 G H] 5.
The provision of O.XXI, rr. 89 and 92(2) of the Code of Civil Procedure and that of article 127 of the , should receive harmonious construction.
[737 F G] Thangammal & Ors.
vs K. Dhanalakshmi & Anr., AIR 1981 Mad.
254, approved.
|
Email: ishso@nic.in
Email: secylaw-dla@nic.in
Email: cs@karnataka.gov.in
This judgment, we desire to begin with what Sara
Slininger from Centralia, Illinois concluded her we ll
“The hijab’s history…is a complex one, influenced
by the intersection of religion and culture over ti me. While
some women no doubt veil themselves because of
pressure put on them by society, others do so by ch oice
for many reasons. The veil appears on the surface t o be a
simple thing. That simplicity is deceiving, as the hijab
represents the beliefs and practices of those who w ear it
or choose not to, and the understandings and
misunderstandings of those who observe it being wor n.
Its complexity lies behind the veil.”
Three of these cases namely W.P.No.2347/2022,
W.P.No.2146/2022 & W.P.No.2880/2022, were referred by
one of us (Krishna S Dixit J.) vide order dated 09. 02.2022 to
consider if a larger Bench could be constituted to hear them.
The Reference Order inter alia observed:
“All these matters essentially relate to proscriptio n
of hijab (headscarf) while prescribing the uniform for
students who profess Islamic faith…The recent
Government Order dated 05.02.2022 which arguably
facilitates enforcement of this rule is also put in challenge.
Whether wearing of hijab is a part of essential rel igious
practice in Islam, is the jugular vein of all these
matters...The said question along with other needs to be
answered in the light of constitutional guarantees
availing to the religious minorities. This Court af ter
hearing the matter for some time is of a considered
opinion that regard being had to enormous public
importance of the questions involved, the batch of these
cases may be heard by a Larger Bench, if Hon’ble th e
Chief Justice so decides in discretion…In the above
circumstances, the Registry is directed to place th e
papers immediately at the hands of Hon’ble the Chie f
Justice for consideration... ”
Accordingly, this Special Bench came to be constitu ted
the very same day vide Notification dated 09.02.202 2 to hear
these petitions, to which other companion cases too joined.
(i) In Writ Petition No. 2347/2022, filed by a
petitioner – girl student on 31.01.2022, the 1 st , 3 rd & 4th
respondents happen to be the State Government & its
officials, and the 2nd respondent happens to be the
Government Pre–University College for Girls, Udupi. The
prayer is for a direction to the respondents to per mit the
petitioner to wear hijab (head – scarf) in the class room, since
wearing it is a part of ‘essential religious practice’ of Islam.
(ii) In Writ Petition No. 2146/2022 filed by a
petitioner–girl student on 29.01.2022, the 1st , 3 rd & 4 th
respondents happen to be the State Government & its officials
and the 2nd respondent happens to be the Government Pre –
University College for Girls, Udupi. The prayer col umn has the
following script:
“1. Issue the WRIT OF MANDAMUS and order to
respondent no 1 and 2 to initiate enquiry against
the Respondent 5 college and Respondent no 6 i.e.
Principal for violating instruction enumerated unde r
Chapter 6 heading of “Important information” of
Guidelines of PU Department for academic year of
2021-22 same at ANNEXURE J for maintaining
uniform in the PU college.,
no 3 conduct enquiry against the Respondent no 6
to 14 for their Hostile approach towards the
petitioners students.,
Respondent no 15 and 16 under which authority
and law they interfering in the administration of
Respondent no 5 school and promoting their
political agenda. And,
4. DECLARE that the status quo referred in the
letter dated 25/01/2022 at ANNEXURE H is with
the consonance to the Department guidelines for the
academic year 2021-22 same at ANNEXURE J …”
(iii) In Writ Petition Nos.2880/2022, 3038/2022 &
4309/2022, petitioner – girl students seek to lay a challenge
to the Government Order dated 05.02.2022. This orde r
purportedly issued under section 133 read with sect ions 7(2)
& (5) of the Karnataka Education Act, 1983 (hereaft er ‘1983
Act’) provides that, the students should compulsori ly adhere
to the dress code/uniform as follows:
a. in government schools, as prescribed by the
government;
b. in private schools, as prescribed by the school
management;
c. in Pre–University colleges that come within the
jurisdiction of the Department of the Pre–
University Education, as prescribed by the
College Development Committee or College
Supervision Committee; and
d. wherever no dress code is prescribed, such
attire that would accord with ‘ equality &
integrity ’ and would not disrupt the ‘ public
order ’.
(iv) In Writ Petition No.3424/2022 (GM-RES-PIL),
filed on 14.02.2022 (when hearing of other cases wa s
half way through), petitioner – Dr.Vinod Kulkarni
happens to be a consulting neuro – psychiatrist,
advocate & social activist. The 1 st and 2 nd respondents
happen to be the Central Government and the 3 rd
respondent happens to be the State Government. The
first prayer is for a direction to the respondents “ to
declare that all the students of various schools an d
colleges in Karnataka and in the country shall atte nd
their institutions by sporting the stipulated unifo rm” (sic ).
Second prayer reads “ To permit Female Muslim students
to sport Hijab provided they wear the stipulated sc hool
uniform also” (sic).
(v) In Writ Petition No.4338/2022 (GM-RES-
PIL), filed on 25.02.2022 (when hearing of other ca ses
was half way through), one Mr. Ghanasham Upadhyay
is the petitioner. The 1 st respondent is the Central
Government, 2 nd & 3 rd respondents happen to be the
State Government & its Principal Secretary, Departm ent
of Primary & Secondary Education; the 4 th & 5 th
respondents happen to be the Central Bureau of
Investigation and National Investigation Agency. Th e gist
of the lengthy and inarticulate prayers are that th e
Central Bureau of Investigation/National Investigat ion
Agency or such other investigating agency should ma ke
a thorough investigation in the nationwide agitatio n
after the issuance of the Government Order dated
05.02.2022 to ascertain the involvement of radical
organizations such as Popular Front of India, Stude nts
Islamic Organization of India, Campus Front of Indi a
and Jamaat -e-Islami ; to hold and declare that wearing of
hijab , burqa or such “ other costumes by male or female
Muslims and that sporting beard is not an integral part
of essential religious practice of Islam” and therefore,
prescription of dress code is permissible. There ar e other
incoherent and inapplicable prayers that do not mer it
mentioning here.
(vi) The State and its officials are represented by
the learned Advocate General. The respondent–Colleg es
and other respondents are represented by their
respective advocates. The State has filed the State ment
of Objections (this is adopted in all other matters ) on
10.02.2022; other respondents have filed their
Statements of Objections, as well. Some petitioners have
filed their Rejoinder to the Statement of Objection s. The
respondents resist the Writ Petitions making submis sion
in justification of the impugned order.
(i) Petitioner – students profess and practice Isla mic
faith. Wearing of hijab (head – scarf) is an ‘essential religious
practice’ in Islam, the same being a Quranic injunction vide
OF INDIA 2. Neither the State Government nor the Schools can
prescribe a dress code/uniform that does not permit the
students to wear hijab . The action of the respondent – schools
in insisting upon the removal of hijab in the educational
institutions is impermissible, as being violative o f the
fundamental right guaranteed under Article 25 of th e
1 (2016) SCC OnLine Ker 41117
2 (2006) SCC OnLine Mad 794
(ii) The impugned Government Order dated
05.02.2022 is structured with a wrong narrative tha t wearing
of hijab is not a part of ‘ essential religious practice’ of Islam
and therefore, prescribing or authorizing the presc ription of
dress code/uniform to the students consistent with the said
narrative, is violative of their fundamental right to freedom of
conscience and the right to practice their religiou s faith
constitutionally guaranteed under Article 25 vide BIJOE
(iii) One’s personal appearance or choice of dressi ng is
a protected zone within the ‘freedom of expression’ vide
INDIA 6; What one wears and how one dresses is a matter of
individual choice protected under ‘ privacy jurisprudence’ vide
Order and the action of the schools to the extent t hat they do
not permit the students to wear hijab in the institutions are
repugnant to these fundamental rights constitutiona lly
availing under Articles 19(1)(a) & 21.
(iv) The action of the State and the schools suffer s
from the violation of ‘doctrine of proportionality’ inasmuch as
in taking the extreme step of banning the hijab within the
campus, the possible alternatives that pass the ‘least
restrictive test’ have not been explored vide MODERN DENTAL
(v) The impugned Government Order suffers from
‘manifest arbitrariness’ in terms of SHAYARA BANO VS.
UNION OF INDIA 10 . The impugned Government Order suffers
from a gross non-application of mind and a misdirec tion in
law since it is founded on a wrong legal premise th at the Apex
Courts in Writ Petition(C) No. 35293/2018, FATHIMA
12 AIR 2003 Bom 75
SCHOOL 13 have held that the wearing of hijab is not a part of
essential religious practice of Islam when contrary is their
demonstrable ratio.
(vi) The impugned Government Order is the result of
acting under dictation and therefore, is vitiated o n this
ground of Administrative Law, going by the admissio n of
learned Advocate General that the draftsmen of this order has
gone too far and the draftsman exceeded the brief v ide
MANOHAR LAL vs. UGRASEN 15 . Even otherwise, the grounds
on which the said government order is structured be ing
unsustainable, it has to go and that supportive gro unds
cannot be supplied de hors the order vide MOHINDER SINGH
(vii) The Government is yet to take a final decisio n with
regard to prescription of uniform in the Pre-Univer sity
Colleges and a High Level Committee has to be const ituted for
that purpose. The Kendriya Vidyalayas under the control of
the Central Government too permit the wearing of hijab (head-
scarf). There is no reason why similar practise sho uld not be
permitted in other institutions.
(viii) The Karnataka Education Act, 1983 or the Rul es
promulgated thereunder do not authorize prescriptio n of any
dress code/uniform at all. Prescribing dress code i n a school
is a matter of ‘ police power’ which does not avail either to the
government or to the schools in the absence of stat utory
enablement. Rule 11 of Karnataka Educational Instit utions
(Classification, Regulation and Prescription of Cur ricula, etc)
Rules, 1995 (hereafter ‘1995 Curricula Rules’) to t he extent it
provides for prescription of uniform is incompetent and
therefore, nothing can be tapped from it.
(ix) The College Betterment (Development) Committee
constituted under Government Circular dated 31.1.20 14 is
only an extra-legal authority and therefore, its pr escription of
dress code/uniform for the students is without juri sdiction.
The prospectus issued by the Education Department p rohibits
prescription of any uniform. The composition & comp lexion of
College Betterment (Development) Committee under the
Government Circular dated 31.1.2014 inter alia compromising
of local Member of Legislative Assembly as its Pres ident and
his nominee as the Vice – President would unjustifi ably
politicize the educational environment and thereby, pollute
the tender minds. The Pre-University institutions a re expected
to be independent and safe spaces.
(x) The College Betterment (Development) Committee
which inter alia comprises of the local Member of Legislative
Assembly vide the Government Circular dated 31.1.20 14,
apart from being unauthorized, is violative of ‘doctrine of
separation of powers’ which is a basic feature of our
also infringes upon of the principle of accountabil ity vide
power to prescribe school uniforms.
(xi) The ground of ‘ public order ’ (sārvajanika
suvyavasthe ) on which the impugned Government Order is
founded is un-understandable; this expression is co nstrued
with reference to ‘ public disorder’ and therefore, the State
If wearing of hijab disrupts the public order, the State should
take action against those responsible for such disr uption and
not ban the wearing of hijab . Such a duty is cast on the State
in view of a positive duty vide GULAM ABBAS vs. STATE OF
OF WEST BENGAL 23 . In addition such a right cannot be
curtailed based on the actions of the disrupters, i .e., the
‘hecklers don’t get the veto’ vide TERMINIELLO vs. CHICAGO 24 ,
view is affirmed by the Apex Court in UNION OF INDIA vs.
K.M.SHANKARAPPA 27 . This duty is made more onerous
because of positive secularism contemplated by the
(xii) Proscribing hijab in the educational institutions
apart from offending women’s autonomy is violative of Article
14 inasmuch as the same amounts to ‘gender–based’
discrimination which Article 15 does not permit. It also
violates right to education since entry of students with hijab
to the institution is interdicted. The government a nd the
schools should promote plurality, not uniformity or
homogeneity but heterogeneity in all aspects of liv es as
opposed to conformity and homogeneity consistent wi th the
constitutional spirit of diversity and inclusivenes s vide
(xiii) The action of the State and the school autho rities is
in derogation of International Conventions that pro vide for
protective discrimination of women’s rights vide UNIVERSAL
RIGHTS OF CHILD (1989) . To provide for a holistic and
comparative view of the ‘principle of reasonable
accommodation’ as facets of ‘ substantive–equality’ under
petitioners referred to the following decisions of foreign
jurisdictions in addition to native ones: MEC FOR
(xiv) In W.P.No.2146/2022, the school teachers have
been acting in derogation of the Brochure of the Ed ucation
33 (2021) SCC OnLine SC 261
37 (2006) SCC OnLine Can SC 6
39 (2016) SCC OnLine Kenya 3023
Department which prohibits prescribing any kind of uniform
inasmuch as they are forcing the students to remove hijab
and therefore, disciplinary action should be taken against
them. The respondents – 15 & 16 have no legal autho rity to
be on the College Betterment (Development) Committee and
therefore, they are liable to be removed by issuing a Writ of
Quo Warranto .
Respondents i.e., State, institutions and teachers per
contra contend that:
(i) The fact matrix emerging from the petition
averments lacks the material particulars as to the wearing of
hijab being in practice at any point of time; no evident iary
material worth mentioning is loaded to the record o f the case,
even in respect of the scanty averments in the peti tion. Since
how long, the students have been wearing hijab invariably has
not been pleaded. At no point of time these student s did wear
any head scarf not only in the class room but also in the
institution. Even otherwise, whatever rights petit ioners claim
under Article 25 of the Constitution, are not absol ute. They
are susceptible to reasonable restriction and regul ation by
law. In any circumstance, the wearing hijab arguably as
being part of ‘essential religious practice’ in Islam cannot be
claimed by the students as a matter of right in all -girl-
institutions like the respondent PU College, Udupi.
(ii) Wearing hijab or head scarf is not a part of
‘essential religious practice’ of Islamic faith; the Holy Quran
does not contain any such injunctions; the Apex Co urt has
laid down the principles for determining what is an ‘essential
LAWYERS ASSOCIATION . Wearing hijab at the most may be a
46 2006 SCC OnLine Mad 794
‘cultural’ practice which has nothing to do with re ligion.
Culture and religion are different from each other.
(iii) The educational institutions of the kind bei ng
‘qualified public places ’, the students have to adhere to the
campus discipline and dress code as lawfully prescr ibed since
years i.e., as early as 2004. The parents have in t he
admission forms of their wards (minor students) hav e
signified their consent to such adherence. All the students
had been accordingly adhering to the same all throu gh. It is
only in the recent past; quite a few students have raked up
this issue after being brainwashed by some fundamen talist
Muslim organizations like Popular Front of India, C ampus
Front of India, Jamaat -e-Islami , and Students Islamic
Organization of India. An FIR is also registered. P olice papers
are furnished to the court in a sealed cover since investigation
is half way through. Otherwise, the students and pa rents of
the Muslim community do not have any issue at all.
Therefore, they cannot now turn around and contend or act to
the contrary.
(iv) The power to prescribe school uniform is inher ent
in the concept of school education itself. There is sufficient
indication of the same in the 1983 Act and the 1995 Curricula
Rules. It is wrong to argue that prescription of un iform is a
‘police power ’ and that unless the Statute gives the same;
there cannot be any prescription of dress code for the
students. The so called ‘ prospectus ’ allegedly issued by the
Education Department prohibiting prescription of
uniform/dress code in the schools does not have any
authenticity nor legal efficacy.
(v) The Government Order dated 05.02.2022 is
compliant with the scheme of the 1983 Act, which pr ovides
for ‘ cultivating a scientific and secular outlook throug h
education’ and this G.O. has been issued under Section 133
read with Sections 7(1)(i), 7(2)(g)(v) of the Act a nd Rule 11 of
the 1995 Curricula Rules; this order only authorize s the
prescription of dress code by the institutions on t heir own and
it as such, does not prescribe any. These Sections and the
Rule intend to give effect to constitutional secula rism and to
the ideals that animate Articles 39(f) & 51(A). The children
have to develop in a healthy manner and in conditio ns of
‘freedom and dignity’ ; the school has to promote the spirit of
harmony and common brotherhood transcending religious,
linguistic, regional or sectional diversities . The practices that
are derogatory to the dignity of women have to be r enounced.
All this would help nation building. This view is r eflected in
the decision of Apex Court in MOHD. AHMED KHAN vs. SHAH
(vi) The Government Order dated 5.02.2022 came to be
issued in the backdrop of social unrest and agitati ons within
the educational institutions and without engineered by
Popular Front of India, Students Islamic Organizati on of
India, Campus Front of India & Jamaat -e-Islami. The action of
the institutions in insisting adherence to uniforms is in the
interest of maintaining ‘peace & tranquility’ . The term ‘ public
order ’ ( sārvajanika suvyavasthe ) employed in the Government
Order has contextual meaning that keeps away from t he same
expression employed in Article 19(2) of the Constit ution.
(vii) The ‘ College Betterment (Development) Committees’
have been established vide Government Circular date d
31.01.2014 consistent with the object of 1983 Act a nd 1995
Curricula Rules. For about eight years or so, it ha s been in
place with not even a little finger being raised by anyone nor
is there any complaint against the composition or f unctioning
of these Committees. This Circular is not put in ch allenge in
any of the Writ Petitions. These autonomous Committ ees have
been given power to prescribe uniforms/dress code v ide SIR
Constitution does not prohibit elected representati ves of the
people being made a part of such committees.
(viii) The right to wear hijab if claimed under Article
19(1)(a), the provisions of Article 25 are not invo cable
inasmuch as the simultaneous claims made under thes e two
provisions are not only mutually exclusive but denu ding of
each other. In addition, be it the freedom of consc ience, be it
the right to practise religion, be it the right to expression or be
it the right to privacy, all they are not absolute rights and
therefore, are susceptible to reasonable restrictio n or
regulation by law, of course subject to the riders prescribed
(ix) Permitting the petitioner – students to wear hijab
(head – scarf) would offend the tenets of human dig nity
48 2018 SCC OnLine Ker 5267
49 2012 SCC OnLine Mad 2607
inasmuch as, the practice robs away the individual choice of
Muslim women; the so called religious practice if c laimed as a
matter of right, the claimant has to prima facie satisfy its
constitutional morality vide K.S PUTTAWAMY supra , INDIAN
the judicial approach to the very idea of essential religious
practice in Islamic faith since the decision in SHAYARA
BANO , supra, which the case of the petitioners overlook s. To
be an essential religious practice that merits prot ection under
Article 25, it has to be shown to be essential to t he religion
concerned, in the sense that if the practice is ren ounced, the
religion in question ceases to be the religion.
(x) Children studying in schools are placed under the
care and supervision of the authorities and teacher s of the
institution; therefore, they have ‘ parental and quasi – parental’
authority over the school children. This apart, sch ools are
‘qualified public places ’ and therefore exclusion of religious
symbols is justified in light of 1995 Curricula Re gulation that
are premised on the objective of secular education, uniformity
ASSCOIATION 54 . What is prescribed in Kendriya Vidyalayas
as school uniform is not relevant for the State to decide on the
question of school uniform/dress code in other inst itutions.
This apart there is absolutely no violation of righ t to
education in any sense.
(xi) Petitioner-students in Writ Petition No.2146 /2022
are absolutely not justified in seeking a disciplin ary enquiry
against some teachers of the respondent college and removal
of some others from their position by issuing a Wri t of Quo
Warranto . As already mentioned above, the so called
prospectus/instructions allegedly issued by the Edu cation
Department prohibiting the dress code in the colleg es cannot
be the basis for the issuance of coercive direction for
refraining the enforcement of dress code. The authe nticity and
efficacy of the prospectus/instructions are not est ablished.
In support of their contention and to provide for a
holistic and comparative view, the respondents have referred
to the following decisions of foreign jurisdictions , in addition
IV. All these cases broadly involving common questions of
law & facts are heard together on day to day basis with
the concurrence of the Bar. There were a few Public
Interest Litigations espousing or opposing the caus es
involved in these cases. However, we decline to gra nt
indulgence in them by separate orders. Similarly, w e
decline to entertain applications for impleadment a nd
intervention in these cases, although we have adver ted
to the written submissions/supplements filed by the
respective applicants.
Having heard the learned counsel appearing for
the parties and having perused the papers on record , we
55 Application No. 44774/98
56 C-804/18 and C-341/19 dated 15 th July 2021
59 Application No. 26625/02
have broadly framed the following questions for
consideration:
1. Whether wearing hijab /head -scarf is a part of
‘essential religious practice’ in Islamic Faith protected
under Article 25 of the Constitution?
2. Whether p rescription of school uniform is not legally
permissible, as being violative of petitioners
Fundamental Rights inter alia guaranteed under
Articles, 19(1)(a), (i.e., freedom of expression ) and 21,
(i.e., privacy ) of the Constitution ?
3. Whether the Government Order dated 05.02.2022
apart from being incompetent is issued without
application of mind and further is manifestly arbit rary
and therefore, violates Articles 14 & 15 of the
Constitution?
4. Whether any case is made ou t in W.P.No.2146/2022
for issuance of a direction for initiating discipli nary
enquiry against respondent Nos.6 to 14 and for
issuance of a Writ of Quo Warranto against
respondent Nos.15 & 16?
Since both the sides in their submissions emphasize d on
Secularism and freedom of conscience & right to rel igion, we
need to concisely treat them in a structured way. S uch a need
is amplified even for adjudging the validity of the Government
Order dated 05.02.2022, which according to the Stat e gives
effect to and operationalizes constitutional Secula rism.
(i) ‘ India, that is Bharat’ (Article 1), since centuries, has
been the sanctuary for several religions, faiths & cultures that
have prosperously co-existed, regardless of the ebb & flow of
political regimes. Chief Justice S.R. Das in IN RE: KERALA
EDUCATION BILL 60 made the following observation lauding
the greatness of our heritage:
“… Throughout the ages endless inundations of men of
diverse creeds, cultures and races - Aryans and non -
Aryans, Dravidians and Chinese, Scythians, Huns,
Pathans and Mughals - have come to this ancient lan d
from distant regions and climes. India has welcomed
them all. They have met and gathered, given and tak en
and got mingled, merged and lost in one body. India 's
tradition has thus been epitomised in the following noble
lines:
"None shall be turned away From the shore of this v ast
sea of humanity that is India" (Poems by Rabindrana th
Tagore)…”
In S.R.BOMMAI , supra at paragraph 25, the Hon’ble Supreme
Court of India observed: “ India can rightly be described as the
world’s most heterogeneous society. It is a country with a rich
heritage. Several races have converged in this sub -
continent. They brought with them their own culture s,
languages, religions and customs. These diversities threw up
their own problems but the early leadership showed wisdom
and sagacity in tackling them by preaching the phil osophy of
accommodation and tolerance…”
(ii) The 42 nd Amendment (1976) introduced the word
‘secular’ to the Preamble when our Constitution already had
such an animating character ab inceptio . Whatever be the
variants of its meaning, secularism has been a Basic Feature
of our polity vide KESAVANANDA , supra even before this
Amendment. The ethos of Indian secularism may not be
approximated to the idea of separation between Church and
State as envisaged under American Constitution post Firs t
Amendment (1791). Our Constitution does not enact K arl
Marx’s structural-functionalist view ‘ Religion is the opium of
masses ’ (1844). H.M.SEERVAI, an acclaimed jurist of yeste r
decades in his magnum opus ‘Constitutional Law of India,
Fourth Edition, Tripathi at page 1259 , writes: ‘India is a
secular but not an anti-religious State, for our Co nstitution
guarantees the freedom of conscience and religion. Articles 27
and 28 emphasize the secular nature of the State…’ Indian
secularism oscillates between s ārva dharma samabhāava and
dharma nirapekshata. The Apex Court in INDIRA NEHRU
GANDHI vs. RAJ NARAIN 61 explained the basic feature of
secularism to mean that the State shall have no religion of its
own and all persons shall be equally entitled to th e freedom of
conscience and the right freely to profess, practic e and
propagate religion. Since ages, India is a secular country. For
India, there is no official religion, inasmuch as i t is not a
theocratic State. The State does not extend patrona ge to any
particular religion and thus, it maintains neutrali ty in the
sense that it does not discriminate anyone on the b asis of
religious identities per se . Ours being a ‘positive secularism’
vide PRAVEEN BHAI THOGADIA supra , is not antithesis of
religious devoutness but comprises in religious tol erance. It is
pertinent to mention here that Article 51A(e) of ou r
Constitution imposes a Fundamental Duty on every ci tizen ‘ to
promote harmony and the spirit of common brotherhoo d
amongst all the people of India transcending religi ous, linguistic
and regional or sectional diversities; to renounce practices
derogatory to the dignity of women ’. It is relevant to mention
here itself that this constitutional duty to transc end the
sectional diversities of religion finds its utteran ce in section
7(2)(v) & (vi) of the 1983 Act which empowers the S tate
61 (1975) Supp. SCC 1
Government to prescribe the curricula that would am ongst
other inculcate the sense of this duty.
(i) Whichever be the society, ‘ you can never separate
social life from religious life ’ said Alladi Krishnaswami Aiyar
during debates on Fundamental Rights in the Advisor y
Committee (April 1947). The judicial pronouncements in
America and Australia coupled with freedom of relig ion
guaranteed in the Constitutions of several other co untries
have substantially shaped the making of inter alia Articles 25
& 26 of our Constitution. Article 25(1) & (2) read as under:
“25. Freedom of conscience and free profession, pra ctice
and propagation of religion
(1) Subject to public order, morality and health an d to the
other provisions of this Part, all persons are equa lly
entitled to freedom of conscience and the right fre ely to
profess, practise and propagate religion
(2) Nothing in this article shall affect the operat ion of any
existing law or prevent the State from making any l aw -
(a) regulating or restricting any economic, financi al,
political or other secular activity which may be as sociated
with religious practice;
(b) providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public ch aracter
to all classes and sections of Hindus.
Explanation I - The wearing and carrying of kirpans shall
be deemed to be included in the profession of the S ikh
religion.
Explanation II - In sub clause (b) of clause refere nce to
Hindus shall be construed as including a reference to
persons professing the Sikh, Jaina or Buddhist reli gion,
and the reference to Hindu religious institutions s hall be
construed accordingly.”
This Article guarantees that every person in India shall have
the freedom of conscience and also the right to pro fess
practise and propagate religion. It is relevant to mention that
unlike Article 29, this article does not mention ‘culture’ as
such, which arguably may share a common border with
religion. We shall be touching the cultural aspect of hijab,
later . We do not propose to discuss about this as such. Th e
introduction of word ‘conscience’ was at the instan ce of Dr.
B.R.Ambedkar, who in his wisdom could visualize per sons
who do not profess any religion or faith, like Chāa rvāakas,
atheists & agnostics. Professor UPENDRA BAXI in ‘ THE
page 149 says :
“…Under assemblage of human rights, individual huma n
beings may choose atheism or agnosticism, or they m ay make
choices to belong to fundamental faith communities.
Conscientious practices of freedom of conscience en able exit
through conversion from traditions of religion acqu ired initially
by the accident of birth or by the revision of choi ce of faith,
which may thus never be made irrevocably once for a ll …”
BIJOE EMMANUEL, supra operationalized the freedom of
conscience intricately mixed with a great measure o f right to
religion. An acclaimed jurist DR. DURGA DAS BASU in his
‘Commentary on the Constitution of India ’, 8 th Edition at page
3459 writes: “ It is next to be noted that the expression ‘freedom
of conscience’ stands in juxtaposition to the words “right freely
to profess, practise and propagate religion”. If th ese two parts
of Art. 25(1) are read together, it would appear, b y the
expression ‘freedom of conscience’ reference is mad e to the
mental process of belief or non-belief, while profe ssion, practice
and propagation refer to external action in pursuan ce of the
mental idea or concept of the person.. .It is also to be noted that
the freedom of conscience or belief is, by its natu re, absolute, it
would become subject to State regulation, in India as in the
U.S.A. as soon as it is externalized i.e., when suc h belief is
reflected into action which must necessarily affect other
people ...”
(ii) There is no definition of religion or conscien ce in
our constitution. What the American Supreme Court i n DAVIS
V. BEASON 62 observed assumes relevance: “... the term religion
has reference to one’s views of his relation to his Creator and to
the obligation they impose of reverence for His Bei ng and
character and of obedience to His will. It is often confounded
with cultus of form or worship of a particular sect , but is
distinguishable from the latter”. WILL DURANT , a great
American historian (1885-1981) in his Magnum Opus ‘ THE
HERITAGE’ at pages 68 & 69 writes:
‘The priest did not create religion, he merely used it, as a
statesman uses the impulses and customs of mankind;
religion arises not out of sacerdotal invention or
chicanery, but out of the persistent wonder, fear,
insecurity, hopefulness and loneliness of men…” The
priest did harm by tolerating superstition and
monopolizing certain forms of knowledge…Religion
supports morality by two means chiefly: myth and ta bu.
Myth creates the supernatural creed through which
celestial sanctions may be given to forms of conduc t
socially (or sacerdotally) desirable; heavenly hope s and
terrors inspire the individual to put up with restr aints
placed upon him by his masters and his group. Man i s
not naturally obedient, gentle, or chaste; and next to that
ancient compulsion which finally generates conscien ce,
nothing so quietly and continuously conduces to the se
uncongenial virtues as the fear of the gods…’ .
Aiyar J. quoted the following observations of Leath em C.J in
“It would be difficult, if not impossible, to devis e a
definition of religion which would satisfy the
adherents of all the many and various religions
which exist, or have existed, in the world. There a re
those who regard religion as consisting principally
in a system of beliefs or statement of doctrine. So
viewed religion may be either true or false. Others
are more inclined to regard religion as prescribing a
code of conduct. So viewed a religion may be good
or bad. There are others who pay greater attention
to religion as involving some prescribed form of
ritual or religious observance. Many religious
conflicts have been concerned with matters of ritua l
and observance…”
In SHIRUR MUTT supra, ‘religion’ has been given the widest
possible meaning. The English word ‘religion’ has d ifferent
shades and colours. It does not fully convey the In dian
concept of religion i.e., ‘dharma’ which has a very wide
meaning, one being ‘moral values or ethics’ on whic h the life
is naturally regulated. The Apex Court referring to the
aforesaid foreign decision observed:
“…We do not think that the above definition can be
regarded as either precise or adequate. Articles 25 and
26 of our Constitution are based for the most part
upon article 44(2) of the Constitution of Eire and we have
great doubt whether a definition of "religion" as g iven
above could have been in the minds of our Constitut ion-
makers when they framed the Constitution. Religion is
certainly a matter of faith with individuals or com munities
and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do
not believe in God or in any Intelligent First Caus e. A
religion undoubtedly has its basis in a system of b eliefs
or doctrines which are regarded by those who profes s
that religion as conducive to their spiritual well being, but
it would not be correct to say that religion is not hing else
but a doctrine of belief. A religion may not only l ay down
a code of ethical rules for its followers to accept , it might
prescribe rituals and observances, ceremonies and m odes
of worship which are regarded as integral parts of
religion, and these forms and observances might ext end
even to matters of food and dress…”
(iii) It is relevant to quote what BERTRAND RUSSELL
wrote: ‘ Religion is a complex phenomenon, having both an
individual and a social aspect …t hroughout history, increase of
civilization has been correlated with decrease of r eligiosity.’
The free exercise of religion under Article 25 is s ubject to
restrictions imposed by the State on the grounds of public
order, morality and health. Further it is made subo rdinate to
other provisions of Part III. Article 25(2)(a) rese rves the power
of State to regulate or restrict any economic, fina ncial,
political and other secular activities which may be associated
with religious practice. Article 25(2)(b) empowers the State to
legislate for social welfare and reform even though by so
doing, it might interfere with religious practice.
H.M.SEERVAI 65 at paragraph 11.35, page 1274, states: “ It has
been rightly held by Justice Venkatarama Aiyar for a very
strong Constitution Bench that Article 25(2) which provides for
social and economic reform is, on a plain reading, not limited to
individual rights. So, by an express provision, the freedom of
religion does not exclude social and economic refor m although
the scope of social reform, would require to be def ined.” This
apart, Article 25(1) deals with rights of individua ls whereas
Article 25(2) is much wider in its content and has reference to
communities. This Article, it is significant to not e, begins with
the expression ‘ Subject to… ’. Limitations imposed on religious
practices on the ground of public order, morality a nd health
having already been saved by the opening words of A rticle
25(1), the saving would cover beliefs and practices even
though considered essential or vital by those profe ssing the
religion. The text & context of this Article juxta posed with
other unmistakably show that the freedom guaranteed by this
provision in terms of sanctity, are placed on compa ratively a
lower pedestal by the Makers of our Constitution qua other
Fundamental Rights conferred in Part III. This broa d view
65 Constitutional Law of India: A Critical Commentary , 4 th Edition
draws support from a catena of decisions of the Ape x Court
The First Amendment to the US Constitution confers
freedoms in absolute terms and the freedoms granted are the
rule and restrictions on those freedoms are the exc eptions
evolved by their courts. However, the Makers of our
Constitution in their wisdom markedly differed from this view.
Article 25 of our Constitution begins with the rest riction and
further incorporates a specific provision i.e., cla use (2) that in
so many words saves the power of State to regulate or restrict
these freedoms. Mr.Justice Douglas of the US Suprem e Court
about the absence of a corresponding provision in t heir
Constitution, saying “ If we had a provision in our Constitution
for ‘reasonable’ regulation of the press such as In dia has
included in hers, there would be room for argument that
censorship in the interest of morality would be per missible ”. In
a similar context, what Chief Justice Hidayatullah, observed
evoking:
“…The American Constitution stated the guarantee in
absolute terms without any qualification. The Judge s try
to give full effect to the guarantee by every argum ent they
can validly use. But the strongest proponent of the
freedom (Justice Douglas) himself recognised in the
Kingsley case that there must be a vital difference in
approach... In spite of the absence of such a provi sion
Judges in America have tried to read the words
'reasonable restrictions' into the First Amendment and
thus to make the rights it grants subject to reason able
regulation …”
Succinctly put, in the United States and Australia, the
freedom of religion was declared in absolute terms and courts
had to evolve exceptions to that freedom, whereas i n India,
Articles 25 & 26 of the Constitution appreciably em body the
limits of that freedom.
ASSOCIATION, supra at paragraphs 209 & 210 about the
scope and content of freedom of religion is illumin ating:
“…Yet, the right to the freedom of religion is not absolute.
For the Constitution has expressly made it subject to
public order, morality and health on one hand and t o the
other provisions of Part III, on the other. The sub jection of
the individual right to the freedom of religion to the other
provisions of the Part is a nuanced departure from the
position occupied by the other rights to freedom
recognized in Articles 14, 15, 19 and 21. While
guaranteeing equality and the equal protection of l aws
in Article 14 and its emanation, in Article 15, whi ch
prohibits discrimination on grounds of religion, ra ce,
caste, sex or place of birth, the Constitution does not
condition these basic norms of equality to the othe r
provisions of Part III. Similar is the case with th e
freedoms guaranteed by Article 19(1) or the right t o life
under Article 21. The subjection of the individual right to
the freedom of religion under Article 25(1) to the other
provisions of Part III was not a matter without
substantive content. Evidently, in the constitution al order
of priorities, the individual right to the freedom of religion
was not intended to prevail over but was subject to the
overriding constitutional postulates of equality, l iberty
and personal freedoms recognised in the other provi sions
of Part III.
Clause (2) of Article 25 protects laws which existe d at the
adoption of the Constitution and the power of the s tate to
enact laws in future, dealing with two categories. The
first of those categories consists of laws regulati ng or
restricting economic, financial, political or other secular
activities which may be associated with religious
practices. Thus, in sub-clause (a) of Article 25 (2 ), the
Constitution has segregated matters of religious p ractice
from secular activities, including those of an econ omic,
financial or political nature. The expression “othe r secular
activity” which follows upon the expression “econom ic,
financial, political” indicates that matters of a s ecular
nature may be regulated or restricted by law. The f act
that these secular activities are associated with o r, in
other words, carried out in conjunction with religi ous
practice, would not put them beyond the pale of
legislative regulation. The second category consist s of
laws providing for (i) social welfare and reform; o r (ii)
throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus. Th e
expression “social welfare and reform” is not confi ned to
matters only of the Hindu religion. However, in mat ters of
temple entry, the Constitution recognised the disab ilities
which Hindu religion had imposed over the centuries
which restricted the rights of access to dalits and to
various groups within Hindu society. The effect of clause
(2) of Article 25 is to protect the ability of the state to
enact laws, and to save existing laws on matters
governed by sub-clauses (a) and (b). Clause (2) of Article
25 is clarificatory of the regulatory power of the state over
matters of public order, morality and health which
already stand recognised in clause (1). Clause 1 ma kes
the right conferred subject to public order, morali ty and
health. Clause 2 does not circumscribe the ambit of the
‘subject to public order, morality or health’ stipu lation in
clause 1. What clause 2 indicates is that the autho rity of
the state to enact laws on the categories is not
trammelled by Article 25…”
(i) Since the question of hijab being a part of essential
religious practice is the bone of contention, it be comes
necessary to briefly state as to what is an essential religious
practice in Indian context and how it is to be ascertained. This
doctrine can plausibly be traced to the Chief Archi tect of our
Constitution, Dr. B.R.Ambedkar and to his famous st atement
in the Constituent Assembly during debates on the
Codification of Hindu Law: “ the religious conception in this
country are so vast that they cover every aspect of life from
birth to death…there is nothing extraordinary in sa ying that we
ought to strive hereafter to limit the definition o f religion in such
a manner that we shall not extend it beyond beliefs and such
rituals as may be connected with ceremonials which are
essentially religious…” [Constituent Assembly Debat es VII:
supra, it has been observed at paragraph 9 as under:
“The protection guaranteed under Articles 25 and 26 of the
Constitution is not confined to matters of doctrine or belief
but extends to acts done in pursuance of religion a nd,
therefore, contains a guarantee for rituals, observ ances,
ceremonies and modes of worship which are essential or
integral part of religion. What constitutes an inte gral or
essential part of religion has to be determined wit h reference
to its doctrines, practices, tenets, historical bac kground, etc.
of the given religion… What is meant by “an essenti al part or
practices of a religion” is now the matter for eluc idation.
Essential part of a religion means the core beliefs upon
which a religion is founded. Essential practice mea ns those
practices that are fundamental to follow a religiou s belief. It
is upon the cornerstone of essential parts or pract ices that
the superstructure of a religion is built, without which a
religion will be no religion. Test to determine whe ther a part
or practice is essential to a religion is to find o ut whether the
nature of the religion will be changed without that part or
practice. If the taking away of that part or practi ce could
result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an
essential or integral part. There cannot be additio ns or
subtractions to such part because it is the very es sence of
that religion and alterations will change its funda mental
character. It is such permanent essential parts whi ch are
protected by the Constitution. Nobody can say that an
essential part or practice of one's religion has ch anged from
a particular date or by an event. Such alterable pa rts or
practices are definitely not the “core” of religion whereupon
the belief is based and religion is founded upon. T hey could
only be treated as mere embellishments to the non-e ssential
(sic essential) part or practices.”
the development of law relating to essential religi ous practice
and the extent of its constitutional patronage cons istent with
the long standing view. Ordinarily, a religious pra ctice in
order to be called an ‘ essential religious practice ’ should have
the following indicia: (i) Not every activity associated with the
religion is essential to such religion. Practice sh ould be
fundamental to religion and it should be from the t ime
immemorial. (ii) Foundation of the practice must pr ecede the
religion itself or should be co-founded at the orig in of the
religion. (iii) Such practice must form the corners tone of religion
itself. If that practice is not observed or followe d, it would result
in the change of religion itself and, (iv) Such pra ctice must be
binding nature of the religion itself and it must b e compelling .
That a practice claimed to be essential to the reli gion has
been carried on since time immemorial or is grounde d in
religious texts per se does not lend to it the constitutional
protection unless it passes the test of essentialit y as is
adjudged by the Courts in their role as the guardia ns of the
Constitution.
(i) March of law regarding essential religious prac tice: Law
is an organic social institution and not just a bla ck letter
section. In order to be ‘ living law of the people’ , it marches
with the ebb and flow of the times, either through legislative
action or judicial process. Constitution being the
Fundamental Law of the Land has to be purposively
construed to meet and cover changing conditions of social &
economic life that would have been unfamiliar to it s Framers.
Since SHAYARA BANO, there has been a paradigm shift in the
approach to the concept of essential religious prac tice, as
rightly pointed by the learned Advocate General. In INDIAN
further when the Apex Court added another dimension to the
concept of essential religious practice, by observi ng at
paragraphs 289 & 291 as under:
“For decades, this Court has witnessed claims resti ng on
the essentiality of a practice that militate agains t the
constitutional protection of dignity and individual freedom
under the Constitution. It is the duty of the court s to
ensure that what is protected is in conformity with
fundamental constitutional values and guarantees an d
accords with constitutional morality. While the
Constitution is solicitous in its protection of rel igious
freedom as well as denominational rights, it must b e
understood that dignity, liberty and equality const itute
the trinity which defines the faith of the Constitu tion.
Together, these three values combine to define a
constitutional order of priorities. Practices or be liefs which
detract from these foundational values cannot claim
legitimacy...
Our Constitution places the individual at the heart of the
discourse on rights. In a constitutional order
characterized by the Rule of Law, the constitutiona l
commitment to egalitarianism and the dignity of eve ry
individual enjoins upon the Court a duty to resolve the
inherent tensions between the constitutional guaran tee of
religious freedom afforded to religious denominatio ns and
constitutional guarantees of dignity and equality a fforded
to individuals. There are a multiplicity of interse cting
constitutional values and interests involved in
determining the essentiality of religious practices . In order
to achieve a balance between competing rights and
interests, the test of essentiality is infused with these
necessary limitations. ”
Thus, a person who seeks refuge under the umbrella of Article
25 of the Constitution has to demonstrate not only essential
religious practice but also its engagement with the
constitutional values that are illustratively menti oned at
paragraph 291 of the said decision. It’s a matter o f concurrent
requirement. It hardly needs to be stated, if essential religious
practice as a threshold requirement is not satisfied, the ca se
does not travel to the domain of those constitution al values.
1. The above having been said, now we need to
concisely discuss about the authentic sources of Is lamic law
inasmuch as Quran and Ahadith are cited by both the sides
in support of their argument & counter argument rel ating to
wearing of hijab . At this juncture, we cannot resist our feel to
reproduce Aiyat 242 of the Quran which says: "It is expected
that you will use your commonsense ". (Quoted by the Apex
Court in SHAH BANO, supra .
at sections 33, 34 & 35 lucidly states:
“33. Sources of Mahomedan Law: There are four
sources of Mahomedan law, namely, (1) the Koran; (2 )
Hadis, that is, precepts, actions and sayings of th e
Prophet Mahomed, not written down during his lifeti me,
but preserved by tradition and handed down by
authorized persons; (3) Ijmaa, that is, a concurren ce of
opinion of the companions of Mahomed and his discip les;
and (4) Qiyas, being analogical deductions derived from a
comparison of the first three sources when they did not
apply to the particular case.”
“34. Interpretation of the Koran: The Courts, in
administering Mahomedan law, should not, as a rule,
attempt to put their own construction on the Koran in
opposition to the express ruling of Mahomedan
commentators of great antiquity and high authority. ”
“35. Precepts of the Prophet: Neither the ancient texts
nor the preceipts of the Prophet Mahomed should be
taken literally so as to deduce from them new rules of
law, especially when such proposed rules do not con duce
to substantial justice… ”
(ii) FYZEE’S TREATISE: Referring to another Islamic
jurist of great repute Asaf A.A. Fyzee 69 , what the Apex Court
at paragraphs 7 & 54 in SHAYARA BANO , supra , observed
evokes interest:
68 Principles of Mahomedan law, 20 th Edition (2013)
69 Outlines of Muhammadan, Law 5 th Edition (2008)
“7. There are four sources for Islamic law- (i) Qur an (ii)
Hadith (iii) Ijma (iv) Qiyas. The learned author ha s rightly
said that the Holy Quran is the “first source of la w”.
According to the learned author, pre-eminence is to be
given to the Quran. That means, sources other than the
Holy Quran are only to supplement what is given in it
and to supply what is not provided for. In other wo rds,
there cannot be any Hadith, Ijma or Qiyas against w hat
is expressly stated in the Quran. Islam cannot be a nti-
Quran...
54. …Indeed, Islam divides all human action into fi ve
kinds, as has been stated by Hidayatullah, J. in hi s
Introduction to Mulla (supra). There it is stated:
“E. Degrees of obedience: Islam divides all actions into
five kinds which figure differently in the sight of God and
in respect of which His Commands are different. Thi s
plays an important part in the lives of Muslims.
(i) First degree: Fard. Whatever is commanded in th e
Koran, Hadis or ijmaa must be obeyed.Wajib. Perhaps a
little less compulsory than Fard but only slightly less
so.(ii) Second degree: Masnun, Mandub and Mustahab:
These are recommended actions.(iii) Third degree: J aiz or
Mubah: These are permissible actions as to which re ligion
is indifferent (iv) Fourth degree: Makruh: That whi ch is
reprobated as unworthy (v) Fifth degree: Haram: Tha t
which is forbidden.”
The Apex Court at paragraph 55 of SHAYARA BANO has
treated the structural hierarchy of binding nature of Islamic
norms starting from Quran and ending with Haram, wh ile
proscribing the obnoxious practice of triple talaq. The
argument of hijab being mandatory under Ahadith, if not
under Quran, shall be treated hereinafter, in the l ight of such
a structure.
(i) At the outset we make it clear that, in these c ases,
our inquiry concerns the nature and practice of wea ring of
hijab amongst Muslim women and therefore, references to the
Holy Quran and other sources of Islamic law shall b e confined
to the same. During the course of hearing, the vers ions of
different authors on this scripture were cited, viz ., Abdullah
Yusuf Ali, Abdul Haleem, Pickthall, Muhammad Hijab , Dr.
Mustafa Khattab, Muhammad Taqi-ud-Din al-Hilali,
Muhammad Muhsin Khan, Dr. Ghali. However, this Cour t
prefers to bank upon the ‘ The Holy Quran: Text, Translation
and Commentary’ by Abdullah Yusuf Ali, (published b y
Goodword Books; 2019 reprint), there being a broad unanimity
at the Bar as to its authenticity & reliability . The speculative
and generalizing mind of this author views the vers es of the
scriptures in their proper perspective. He provides the
unifying principles that underlie. His monumental w ork has a
systematic completeness and perfection of form. It is pertinent
to reproduce Abdullah Yusuf Ali’s ‘Preface to First Edition’ of
his book, which is as under:
“…In translating the Text I have aired no views of my
own, but followed the received commentators. Where they
differed among themselves, I have had to choose wha t
appeared to me to be the most reasonable opinion fr om all
points of view. Where it is a question merely of wo rds, I
have not considered the question important enough t o
discuss in the Notes, but where it is a question of
substance, I hope adequate explanations will be fou nd in
the notes. Where I have departed from the literal
translation in order to express the spirit of the o riginal
better in English, I have explained the literal mea ning in
the Notes… Let me explain the scope of the Notes. I have
made them as short as possible consistently with th e
object I have in view, viz., to give to the English reader,
scholar as well as general reader, a fairly complet e but
concise view of what I understand to be the meaning of
the Text…”
(ii) There is yet another reason as to why we place our
reliance on the commentary of Mr. Abdullah Yusuf Al i. The
Apex court itself in a catena of cases has treated the same as
the authoritative work. In SHAYARA BANO, we find the
following observations at paragraphs 17 & 18:
“17. Muslims believe that the Quran was revealed by God
to the Prophet Muhammad over a period of about 23
years, beginning from 22.12.609, when Muhammad was
40 years old. The revelation continued upto the yea r 632
– the year of his death. Shortly after Muhammad’s d eath,
the Quran was completed by his companions, who had
either written it down, or had memorized parts of i t.
These compilations had differences of perception.
Therefore, Caliph Usman - the third, in the line of caliphs
recorded a standard version of the Quran, now known as
Usman’s codex. This codex is generally treated, as the
original rendering of the Quran.
18. During the course of hearing, references to the Quran
were made from ‘The Holy Quran: Text Translation an d
Commentary’ by Abdullah Yusuf Ali, (published by Ki tab
Bhawan, New Delhi, 14th edition, 2016). Learned cou nsel
representing the rival parties commended, that the text
and translation in this book, being the most reliab le,
could safely be relied upon. The text and the infer ences
are therefore drawn from the above publication…The
Quran is divided into ‘suras’ (chapters). Each ‘sur a’
contains ‘verses’, which are arranged in sections.… ”
The above apart, none at the Bar has disputed the p rofound
scholarship of this writer or the authenticity of h is
commentary. We too find construction of and commen ts on
suras and verses of the scripture illuminative and immensely
appealing to reason & justice.
(i) Learned advocates appearing for the petitioners
vehemently argued that the Quran injuncts Muslim wo men to
wear hijab whilst in public gaze. In support, they heavily
banked upon certain suras from Abdullah Yusuf Ali’s book.
Before we reproduce the relevant suras and verses, we feel it
appropriate to quote what Prophet had appreciably s aid at
sūra (ii) verse 256 in Holy Quran: ‘Let there be no
compulsion in religion…’ What Mr. Abdullah Yusuf Ali in
footnote 300 to this verse, appreciably reasons out , is again
worth quoting: ‘ Compulsion is incompatible with religion
because religion depends upon faith and will, and t hese would
be meaningless if induced by force...’ With this at heart, we are
reproducing the following verses from the scripture , which
were pressed into service at the Bar.
Sūra xxiv (Nūr ):
The environmental and social influences which most
frequently wreck our spiritual ideals have to do wi th sex,
and especially with its misuse, whether in the form of
unregulated behavior, of false charges or scandals, or
breach of the refined conventions of personal or do mestic
privacy. Our complete conquest of all pitfalls in such
matters enables us to rise to the higher regions of Light
and of God-created Nature, about which a mystic doc trine
is suggested. This subject is continued in the nex t Sūra.
Privacy should be respected, and the utmost decorum
should be observed in dress and manners
(xxiv. 27 – 34, and C. 158)
Domestic manners and manners in public or collectiv e life
all contribute to the highest virtues, and are part of our
spiritual duties leading upto God”
(xxiv. 58 – 64, and C. 160) .
“And say to the believing women
That they should lower
Their gaze and guard ∗.
Their modesty; that they
Should not display their
Beauty and ornaments* except
What (must ordinarily) appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
Their beauty except
To their husband, their fathers,
Their husbands’ father, their sons,
Their husbands’ sons,
Their brothers or their brothers’ sons,
Or their sisters’ sons,
∗ References to the footnote attached to these vers es shall be made in
subsequent paragraphs.
Or their women, or the slaves
Whom their right hands
Possess, or male servants
Free from physical needs,
Or small children who
Have no sense of the shame
Of sex; that they
Should strike their feet
In order to draw attention
To their hidden ornaments.
And O ye Believers!
Turn ye all together
Towards God, that ye
May attain Bliss. *” (xxiv. 31, C. – 158)
Sūra xxxiii (Ahzāb)
“Prophet! Tell
Thy wives and daughters,
And the believing women *,
That they should case
Their outer garments over *
Their persons (when abroad):
That is most convenient,
That they should be known *
(As such) and not molested.
And God is Oft – Forgiving, *
Most Merciful.” (xxxiii. 59, C. - 189)
Is hijab Islam-specific?
(ii) Hijab is a veil ordinarily worn by Muslim women, is true .
Its origin in the Arabic verb hajaba , has etymological
similarities with the verb “ to hide” . Hijab nearly translates to
partition, screen or curtain. There are numerous di mensions
of understanding the usage of the hijab : visual, spatial, ethical
and moral. This way, the hijab hides, marks the difference,
protects, and arguably affirms the religious identity of the
Muslim women. This word as such is not employed in Quran,
cannot be disputed, although commentators may have
employed it. Indian jurist Abdullah Yusuf Ali refer ring to sūra
(xxxiii), verse 59, at footnote 3765 in his book st ates: “Jilbāb,
plural Jalābib: an outer garment; a long gown cover ing the
whole body, or a cloak covering the neck as bosom.” . In the
footnote 3760 to Verse 53, he states: “ …In the wording, note
that for Muslim women generally, no screen or hijab
(Purdah) is mentioned, but only a veil to cover the bosom,
and modesty in dress. The screen was a special feat ure
of honor for the Prophet’s household, introduced ab out
five or six years before his death... ” Added, in footnote
3767 to verse 59 of the same sura, he opines: “ This rule was
not absolute: if for any reason it could not be obs erved,
‘God is Oft. Returning, Most Merciful.’…” Thus, there is
sufficient intrinsic material within the scripture itself to
support the view that wearing hijab has been only
recommendatory, if at all it is.
(iii) The Holy Quran does not mandate wearing of hijab
or headgear for Muslim women. Whatever is stated in the
above sūras , we say, is only directory, because of absence of
prescription of penalty or penance for not wearing hijab, the
linguistic structure of verses supports this view. This apparel
at the most is a means to gain access to public pla ces and not
a religious end in itself. It was a measure of wome n
enablement and not a figurative constraint. There i s a
laudable purpose which can be churned out from Yusu f Ali’s
footnotes 2984 , 2985 & 2987 to verses in Sūra xxiv (Nūr ) and
footnotes 3764 & 3765 to verses in Sūra xxxiii (Ahzāb ). They
are reproduced below:
Sūra xxiv (Nūr )
“2984. The need for modesty is the same in
both men and women. But on account of the
differentiation of the sexes in nature, temperament s
and social life, a greater amount of privacy is
required for women than for men, especially in the
matter of dress and uncovering of the bosom.”
“2985. Zinat means both natural beauty and
artificial ornaments. I think both are implied her e
but chiefly the former. The woman is asked ‘not to
make a display of her figure or appear in undress
except to the following classes of people: (1) her
husband, (2) her near relatives who would be living
in the same house, and with whom a certain
amount of negligé is permissible: (3) her women i.e .,
her maid-servants, who would be constantly in
attendance on her; some Commentators include all
believing women; it is not good form in a Muslim
household for women to meet other women, except
when they are properly dressed; (4) slaves, male
and female, as they would be in constant
attendance; but this item would now be blank, with
the abolition of slavery; (5) old or infirm men-
servants; and (6) infants or small children before
they get a sense of sex.
“2987. While all these details of the purity
and the good form of domestic life are being brough t
to our attention, we are clearly reminded that the
chief object we should hold in view is our spiritua l
welfare. All our brief life on this earth is a
probation, and we must make our individual,
domestic, and social life all contribute to our
holiness, so that we can get the real success and
bliss which is the aim of our spiritual endeavor.
Mystics understand the rules of decorum
themselves to typify spiritual truths. Our soul, li ke a
modest maiden, allows not her eyes to stray from
the One True God. And her beauty is not for vulgar
show but for God.”
Sū ra xxxiii (Ahzāb )
“3764. This is for all Muslim women, those of
the Prophet’s household, as well as the others. The
times were those of insecurity (see next verse) and
they were asked to cover themselves with outer
garments when walking abroad. It was never
contemplated that they should be confined to their
houses like prisoners.”
“3765. Jilbāb, plural Jalābib: an outer
garment; a long gown covering the whole body, or a
cloak covering the neck as bosom.”
(iv) The essential part of a religion is primarily to be
ascertained with reference to the doctrine of that religion itself ,
gains support from the following observations in INDIAN
“286. In determining the essentiality of a practice , it is
crucial to consider whether the practice is prescri bed to
be of an obligatory nature within that religion. If a
practice is optional, it has been held that it cann ot be said
to be ‘essential’ to a religion. A practice claimed to be
essential must be such that the nature of the relig ion
would be altered in the absence of that practice. I f there
is a fundamental change in the character of the rel igion,
only then can such a practice be claimed to be an
‘essential’ part of that religion.”
It is very pertinent to reproduce what the Islamic jurist Asaf
A.A. Fyzee, supra at pages 9-11 of his book states:
“…We have the Qur’an which is the very word of God.
Supplementary to it we have Hadith which are the
Traditions of the Prophet- the records of his actio ns and
his sayings- from which we must derive help and
inspiration in arriving at legal decisions. If ther e is
nothing either in the Qur’an or in the Hadith to an swer
the particular question which is before us, we have to
follow the dictates of secular reason in accordance with
certain definite principles. These principles const itute the
basis of sacred law or Shariat as the Muslim doctor s
understand it. And it is these fundamental juristic notions
which we must try to study and analyse before we
approach the study of the Islamic civil law as a wh ole, or
even that small part of it which in India is known as
Muslim law...”
(v) Petitioners pressed into service sūra (xxxiii ), verse
59, in support of their contention that wearing hijab is an
indispensable requirement of Islamic faith. This co ntention is
bit difficult to countenance. It is relevant to ref er to the
historical aspects of this particular verse as vivi dly explained
by Abdullah Yusuf Ali himself at footnote 3766:
“The object was not to restrict the liberty of wome n, but to
protect them from harm and molestation under the
conditions then existing in Medina. In the East and in the
West a distinctive public dress of some sort or ano ther
has always been a badge of honour or distinction, b oth
among men and women. This can be traced back to the
earliest civilizations. Assyrian Law in its palmist days
(say, 7 th century B.C.), enjoined the veiling of married
women and forbade the veiling of slaves and women o f ill
fame: see Cambridge Ancient History, III.107 ”
It needs to be stated that wearing hijab is not religion-specific,
as explained by Sara Slininger from Centralia, Illi nois in her
CULTURAL PRACTICE”. What she writes throws some light on
the socio-cultural practices of wearing hijab in the region,
during the relevant times:
“Islam was not the first culture to practice veilin g their
women. Veiling practices started long before the Is lamic
prophet Muhammad was born. Societies like the
Byzantines, Sassanids, and other cultures in Near a nd
Middle East practiced veiling. There is even some
evidence that indicates that two clans in southwest ern
Arabia practiced veiling in pre-Islamic times, the Banū
Ismā ʿīl and Banū Qa ḥṭān. Veiling was a sign of a
women’s social status within those societies. In
Mesopotamia, the veil was a sign of a woman’s high
status and respectability. Women wore the veil to
distinguish Slininger themselves from slaves and
unchaste women. In some ancient legal traditions, s uch
as in Assyrian law, unchaste or unclean women, such as
harlots and slaves, were prohibited from veiling
themselves. If they were caught illegally veiling, they
were liable to severe penalties. The practice of ve iling
spread throughout the ancient world the same way th at
many other ideas traveled from place to place durin g this
time: invasion.”
(vi) Regard being had to the kind of life condition s
then obtaining in the region concerned, wearing hijab was
recommended as a measure of social security for wom en and
to facilitate their safe access to public domain. A t the most
the practice of wearing this apparel may have somet hing to do
with culture but certainly not with religion. This gains
credence from Yusuf Ali’s Note 3764 to verse 59 whi ch runs
as under:
“…The times were those of insecurity (see next vers e) and
they were asked to cover themselves with outer garm ents
when walking abroad. It was never contemplated that
they should be confined to their houses like prison ers.”
History of mankind is replete with instances of abu se and
oppression of women. The region and the times from which
Islam originated were not an exception. The era bef ore the
introduction of Islam is known as Jahiliya-a time of barbarism
and ignorance. The Quran shows concern for the case s of
‘molestation of innocent women ’ and therefore, it
recommended wearing of this and other apparel as a measure
of social security. May be in the course of time, s ome
elements of religion permeated into this practice a s ordinarily
happens in any religion. However, that per se does not render
the practice predominantly religious and much less essential
to the Islamic faith. This becomes evident from Ali ’s footnote
3768 to verse 60 which concludes with the following profound
line “Alas! We must ask ourselves the question: ‘Are these
conditions present among us today? ’” Thus, it can be
reasonably assumed that the practice of wearing hijab had a
thick nexus to the socio-cultural conditions then prevalent in
the region. The veil was a safe means for the women to leave
the confines of their homes. Ali’s short but leadin g question is
premised on this analysis. What is not religiously made
obligatory therefore cannot be made a quintessentia l aspect of
the religion through public agitations or by the pa ssionate
arguments in courts.
(vii) Petitioners also relied upon verses 4758 & 47 59
(Chapter 12) from Dr.Muhammad Muhsin Khan’s ‘ The
Translation of the Meanings of Sahih Al-Bukhari, Ar abic-
English ’, Volume 6, Darussalam publication, Riyadh, Saudi
Arabia. This verse reads:
“4758. Narrated ‘Aishah’: May Allah bestow His Merc y
on the early emigrant women. When Allah revealed:
“…and to draw their veils all over their Juyubihinn a (i.e.,
their bodies, faces, necks and bosoms)…” (V.24:31) they
tore their Murut (woolen dresses or waist-binding c lothes
or aprons etc.) and covered their heads and faces w ith
those torn Muruts.
4759. Narrated Safiyya bint Shaiba: Aishah used to say:
“When (the Verse): ‘… and to draw their veils all o ver
their Juhubihinna (i.e., their bodies, faces, necks and
bosoms, etc.)…’ (V.24:31) was revealed, (the ladies ) cult
their waist-sheets from their margins and covered t heir
heads and faces with those cut pieces of cloth.”
Firstly, no material is placed by the petitioners t o show the
credentials of the translator namely Dr.Muhammad Mu hsin
Khan. The first page of volume 6 describes him as: “Formerly
Director, University Hospital, Islamic University, Al-Madina, Al-
Munawwara (Kingdom of Saudi Arabia). By this, credentials
required for a commentator cannot be assumed. He ha s held
a prominent position in the field of medicine, is b eside the
point. We found reference to this author in a decis ion of
Jammu & Kashmir High Court in LUBNA MEHRAJ VS.
MEHRAJ-UD-DIN KANTH 70 . Even here, no credentials are
discussed nor is anything stated about the authenti city and
reliability of his version of Ahadith. Secondly, th e text &
context of the verse do not show its obligatory nat ure. Our
attention is not drawn to any other verses in the t ranslation
from which we can otherwise infer its mandatory nat ure.
Whichever be the religion, whatever is stated in th e
scriptures, does not become per se mandatory in a wholesale
way. That is how the concept of essential religious practice, is
coined. If everything were to be essential to the r eligion
logically, this very concept would not have taken b irth. It is on
this premise the Apex Court in SHAYARA BANO, proscribed
the 1400 year old pernicious practice of triple talaq in Islam.
What is made recommendatory by the Holy Quran canno t be
metamorphosed into mandatory dicta by Ahadith which is
treated as supplementary to the scripture. A contra argument
offends the very logic of Islamic jurisprudence and normative
hierarchy of sources. This view gains support from paragraph
42 of SHAYARA BANO which in turn refers to Fyzee’s work.
Therefore, this contention too fails.
Strangely, in support of their version and counter version,
both the petitioners and the respondents drew our a ttention
to two decisions of the Kerala High Court, one deci sion of
Madras and Bombay each. Let us examine what these c ases
were and from which fact matrix, they emanated.
(i) In re AMNAH BINT BASHEER, supra: this judgment
was rendered by a learned Single Judge A.Muhamed
Mustaque J. of Hon’ble Kerala High Court on 26.4.20 16.
Petitioner, the students (minors) professing Islam had an
issue with the dress code prescribed for All India Pre-Medical
Entrance Test, 2016. This prescription by the Centr al Board
of Secondary Education was in the wake of large sca le
malpractices in the entrance test during the previo us years.
At paragraph 29, learned Judge observed:
“Thus, the analysis of the Quranic injunctions and t he
Hadiths would show that it is a farz to cover the h ead
and wear the long sleeved dress except face part an d
exposing the body otherwise is forbidden (haram). W hen
farz is violated by action opposite to farz that ac tion
becomes forbidden (haram). However, there is a
possibility of having different views or opinions f or the
believers of the Islam based on Ijithihad (independ ent
reasoning). This Court is not discarding such views . The
possibility of having different propositions is not a ground
to deny the freedom, if such propositions have some
foundation in the claim …”
Firstly, it was not a case of school uniform as par t of
Curricula as such. Students were taking All India Pre-
Medical Entrance Test, 2016 as a onetime affair and not on
daily basis, unlike in schools. No Rule or Regulati on having
force of law prescribing such a uniform was pressed into
service. Secondly, the measure of ensuring personal
examination of the candidates with the presence of one lady
member prior to they entering the examination hall was a
feasible alternative. This ‘reasonable exception’ c annot be
stretched too wide to swallow the rule itself. That feasibility
evaporates when one comes to regular adherence to s chool
uniform on daily basis. Thirdly, learned Judge hims elf in all
grace states: “ However, there is a possibility of having different
views or opinions for the believers of the Islam ba sed on
Ijithihad (independent reasoning). In formulating our view,
i.e., in variance with this learned Judge’s, we hav e heavily
drawn from the considered opinions of Abdullah Yusu f Ali’s
works that are recognized by the Apex Court as bein g
authoritative vide SHAYARA BANO and in other several
decisions . There is no reference to this learned authors’
commentary in the said judgment. Learned Judge refe rs to
other commentators whose credentials and authority are not
forthcoming. The fact that the Writ Appeal against the same
came to be negatived 71 by a Division Bench, does not make
much difference. Therefore, from this decision, bot h the sides
cannot derive much support for their mutually oppos ing
versions.
(ii) In re FATHIMA THASNEEM supra: the girl students
professing Islam had an issue with the dress code p rescribed
by the management of a school run by a religious mi nority
(Christians) who had protection under Articles 29 & 30 of the
71 (2016) SCC Online Ker 487
Constitution. This apart, learned Judge i.e., A.Muh amed
Mustaque J. was harmonizing the competing interests
protected by law i.e., community rights of the mino rity
educational institution and the individual right of a student.
He held that the former overrides the latter and ne gatived the
challenge, vide order dated 4.12.2018 with the foll owing
observation:
“10. In such view of the matter, I am of the conside red
view that the petitioners cannot seek imposition of their
individual right as against the larger right of the
institution. It is for the institution to decide wh ether the
petitioners can be permitted to attend the classes with the
headscarf and full sleeve shirt. It is purely withi n the
domain of the institution to decide on the same. Th e Court
cannot even direct the institution to consider such a
request. Therefore, the writ petition must fail. Ac cordingly,
the writ petition is dismissed. If the petitioners approach
the institution for Transfer Certificate, the schoo l authority
shall issue Transfer Certificate without making any
remarks. No doubt, if the petitioners are willing t o abide
by the school dress code, they shall be permitted t o
continue in the same school…”
This decision follows up to a particular point the reasoning in
the earlier decision (2016), aforementioned. Neithe r the
petitioners nor the respondent-State can bank upon this
decision, its fact matrix being miles away from tha t of these
petitions. This apart, what we observed about the e arlier
decision substantially holds water for this too.
(iii) In re FATHIMA HUSSAIN, supra: This decision by a
Division Bench of Bombay High Court discussed about
Muslim girl students’ right to wear hijab “…in exclusive girls
section cannot be said to in any manner acting inco nsistent
with the aforesaid verse 31 or violating any injunc tion provided
in Holy Quran. It is not an obligatory overt act enjoined by
Muslim religion that a girl studying in all girl se ction
must wear head-covering. The essence of Muslim religion or
Islam cannot be said to have been interfered with b y directing
petitioner not to wear head-scarf in the school .” These
observations should strike the death knell to Writ Petition
Nos.2146, 2347, 3038/2022 wherein the respondent co llege
happens to be all-girl-institution (not co-educatio n). The
Bench whilst rejecting the petition, at paragraph 8 observed:
“We therefore, do not find any merit in the contenti on of the
learned counsel for the petitioner that direction g iven by the
Principal to the petitioner on 28-11-2001 to not to wear head-
scarf or cover her head while attending school is v iolative of
Article 25 of Constitution of India.” We are at loss to know how
this decision is relevant for the adjudication of t hese petitions.
challenge in this case was to paragraph 1 of the Co de of
Conduct prescribing a dress code for the teachers. The
Division Bench of Madras High Court while dismissin g the
challenge at paragraph 16 observed as under:
“For the foregoing reasons and also in view of the
fact that the teachers are entrusted with not only
teaching subjects prescribed under the syllabus, bu t also
entrusted with the duty of inculcating discipline a mongst
the students, they should set high standards of dis cipline
and should be a role model for the students. We hav e
elaborately referred to the role of teachers in the earlier
portion of the order. Dress code, in our view, is o ne of the
modes to enforce discipline not only amongst the
students, but also amongst the teachers. Such impos ition
of dress code for following uniform discipline cann ot be
the subject matter of litigation that too, at the i nstance of
the teachers, who are vested with the responsibilit y of
inculcating discipline amongst the students. The Co urt
would be very slow to interfere in the matter of di scipline
imposed by the management of the school only on the
ground that it has no statutory background. That ap art,
we have held that the management of the respondent
school had the power to issue circulars in terms of clause
6 of Annexure VIII of the Regulations. In that view of the
matter also, we are unable to accept the contention of the
learned counsel for appellant in questioning the ci rcular
imposing penalty for not adhering to the dress code .”
This case has completely a different fact matrix. E ven the
State could not have banked upon this in structurin g the
impugned Govt. Order dated 5.2.2022. The challenge to the
dress code was by the teacher and not by the studen ts. The
freedom of conscience or right to religion under Ar ticle 25 was
not discussed. This decision is absolutely irreleva nt.
BULANDSHAHR 72 : This decision is cited by the petitioner in
W.P.No.4338/2022 (PIL) who supports the case of the State.
This decision related to a challenge to the prescri ption of
dress code for the lawyers. The Division Bench of A llahabad
High Court whilst rejecting the challenge, observed at
paragraph 20 as under:
“In our opinion the various rules prescribing the d ress of
an Advocate serve a very useful purpose. In the fir st
place, they distinguish an Advocate from a litigant or
other members of the public who may be jostling wit h him
in a Court room. They literally reinforce the
Shakespearian aphorism that the apparel oft proclai ms
the man. When a lawyer is in prescribed dress his
identity can never be mistaken. In the second place , a
uniform prescribed dress worn by the members of the Bar
induces a seriousness of purpose and a sense of dec orum
which are highly conducive to the dispensation of
justice...”
This decision is not much relevant although it give s some idea
as to the justification for prescribing uniform, be it in a
profession or in an educational institution. Beyond this, it is
of no utility to the adjudication of issues that ar e being
debated in these petitions.
72 1973 SCC OnLine All 333
(1) Some of the petitioners vehemently argued that,
regardless of right to religion, the girl students have the
freedom of conscience guaranteed under Article 25 i tself and
that they have been wearing hijab as a matter of conscience
and therefore, interdicting this overt act is offen sive to their
conscience and thus, is violative of their fundamen tal right. In
support, they heavily rely upon BIJOE EMMANUEL supra,
wherein at paragraph 25, it is observed as under:
“We are satisfied, in the present case, that the ex pulsion
of the three children from the school for the reaso n that
because of their conscientiously held religious fai th, they
do not join the singing of the national anthem in t he
morning assembly though they do stand up respectful ly
when the anthem is sung, is a violation of their
fundamental right to freedom of conscience and free ly to
profess, practice and propagate religion .” .
Conscience is by its very nature subjective. Whethe r the
petitioners had the conscience of the kind and how they
developed it are not averred in the petition with m aterial
particulars. Merely stating that wearing hijab is an overt act of
conscience and therefore, asking them to remove hijab would
offend conscience, would not be sufficient for trea ting it as a
ground for granting relief. Freedom of conscience a s already
mentioned above, is in distinction to right to reli gion as was
clarified by Dr. B.R.Ambedkar in the Constituent As sembly
Debates. There is scope for the argument that the f reedom of
conscience and the right to religion are mutually e xclusive.
Even by overt act, in furtherance of conscience, th e matter
does not fall into the domain of right to religion and thus, the
distinction is maintained. No material is placed be fore us for
evaluation and determination of pleaded conscience of the
petitioners. They have not averred anything as to h ow they
associate wearing hijab with their conscience, as an overt act.
There is no evidence that the petitioners chose to wear their
headscarf as a means of conveying any thought or be lief on
their part or as a means of symbolic expression. Pl eadings at
least for urging the ground of conscience are perfu nctory, to
say the least.
(i) Since the petitioners heavily banked upon BIJOE
EMMANUEL, in support of their contention as to freedom of
conscience, we need to examine what were the materi al facts
of the case and the propositions of law emanating t herefrom.
This exercise we have undertaken in the light of wh at Rupert
4th Edition – CLARENDON, at page 39 have said: “ the ratio
decidendi is best approached by a consideration of the
structure of a typical judgment…A Judge generally s ummarizes
the evidence, announcing his findings of fact and r eviews the
arguments that have been addressed to him by counse l for
each of the parties. If a point of law has been rai sed, he often
discusses a number of previous decisions…It is not everything
said by a Judge when giving judgment that constitut es a
precedent…This status is reserved for his pronounce ments on
the law…The dispute is solely concerned with the fa cts…It is
not always easy to distinguish law from fact and th e reasons
which led a Judge to come to a factual conclusion…” What
LORD HALSBURY said more than a century ago in the
celebrated case of QUINN vs. LEATHEM 73 ' is worth noting. He
had craftily articulated that a decision is an auth ority for the
proposition that is laid down in a given fact matri x, and not
for all that which logically follows from what has been so laid
down.
(ii) With the above in mind, let us examine the
material facts of BIJOE EMMANUEL : Three ‘law abiding
children’ being the faithful of Jehovah witnesses, did
respectfully stand up but refused to sing the Natio nal Anthem
in the school prayer. This refusal was founded on t he dicta of
their religion. They were expelled under the instru ctions of
Deputy Inspector of School. These instructions were proven to
have no force of law. They did not prevent the sing ing of
National Anthem nor did they cause any disturbance while
others were singing. Only these facts tailored the skirt, rest
being the frills. The decision turned out to be mor e on the
right to religion than freedom of conscience, altho ugh there is
some reference to the conscience. The court recogni zed the
negative of a fundamental right i.e., the freedom o f speech &
expression guaranteed under Article 19 as including right to
remain silent. What weighed with the court was the fact ‘ the
children were well behaved, they respectfully stood up when
the National Anthem was sung and would continue to do so
respectfully in the future ’ (paragraph 23). Besides, Court found
that their refusal to sing was not confined to Indi an National
Anthem but extended to the Songs of every other cou ntry.
(iii) True it is that the BIJOE EMMANUEL reproduces
the following observation of Davar J. made in JAMSHEDJI
“…If this is the belief of the community--and it is proved
undoubtedly to be the belief of the Zoroastrian
community--a secular judge is bound to accept that belief-
-it is not for him to sit in judgment on that belie f--he has
no right to interfere with the conscience of a dono r who
makes a gift in favour of what he believes to be in
advancement of his religion and for the welfare of his
community or of mankind…”
These observations essentially relate to ‘ the belief of the
Zoroastrian community ’. It very little related to the ‘ freedom of
conscience’ as envisaged under Article 25 of the Constitution
enacted about four decades thereafter. The expressi on
‘conscience of a donor’ is in the light of religious belief much
away from ‘ freedom of conscience’ . After all the meaning of a
word takes its colour with the companion words i.e. , noscitur
a sociis. After all, a word in a judgment cannot be construe d
as a word employed in a Statute. In the absence of
demonstrable conformity to the essentials of a deci sion, the
denomination emerging as a ratio would not be an
operationable entity in every case comprising neigh bourly fact
matrix. What is noticeable is that BIJOE EMMANUEL did not
demarcate the boundaries between ‘freedom of consci ence’
and ‘right to practise religion’ presumably because the overt
act of the students in respectfully standing up whi le National
Anthem was being sung transcended the realm of thei r
conscience and took their case to the domain of rel igious
belief. Thus, BIJOE EMMANUEL is not the best vehicle for
drawing a proposition essentially founded on freedo m of
conscience.
(i) In order to establish their case, claimants hav e to
plead and prove that wearing of hijab is a religious
requirement and it is a part of ‘essential religious practice’ in
Islam in the light of a catena of decision of the A pex Court
that ultimately ended with INDIAN YOUNG LAWYERS
ASSOCIATION. The same has already been summarized by us
above . All these belong to the domain of facts. In NARAYANA
DEEKSHITHULU, it is said: “… What are essential parts of
religion or religious belief or matters of religion and religious
practice is essentially a question of fact to be co nsidered in the
context in which the question has arisen and the ev idence-
factual or legislative or historic-presented in tha t context is
required to be considered and a decision reached …” The
claimants have to plead these facts and produce req uisite
material to prove the same. The respondents are mor e than
justified in contending that the Writ Petitions lac k the
essential averments and that the petitioners have n ot loaded
to the record the evidentiary material to prove the ir case. The
material before us is extremely meager and it is su rprising
that on a matter of this significance, petition ave rments
should be as vague as can be. We have no affidavit before us
sworn to by any Maulana explaining the implications of the
suras quoted by the petitioners’ side. Pleadings of the
petitioners are not much different from those in MOHD. HANIF
QUARESHI , supra which the Apex Court had critized. Since
how long all the petitioners have been wearing hijab is not
specifically pleaded. The plea with regard to weari ng of hijab
before they joined this institution is militantly a bsent. No
explanation is offered for giving an undertaking at the time of
admission to the course that they would abide by sc hool
ASSOCIATION , supra, has stated that matters that are
essential to religious faith or belief; have to be adjudged on
the evidence borne out by record. There is absolute ly no
material placed on record to prima facie show that wearing of
hijab is a part of an essential religious practice in Is lam and
that the petitioners have been wearing hijab from the
beginning. This apart, it can hardly be argued that hijab being
a matter of attire, can be justifiably treated as f undamental to
Islamic faith. It is not that if the alleged practi ce of wearing
hijab is not adhered to, those not wearing hijab become the
sinners, Islam loses its glory and it ceases to be a religion.
Petitioners have miserably failed to meet the thres hold
requirement of pleadings and proof as to wearing hijab is an
inviolable religious practice in Islam and much les s a part of
‘essential religious practice’ .
(i) We are confronted with the question whether the re
is power to prescribe dress code in educational ins titutions.
This is because of passionate submissions of the pe titioners
that there is absolutely no such power in the schem e of 1983
Act or the Rules promulgated thereunder. The idea o f In view of the above discussion, we are of the
considered opinion that wearing of hijab by
Muslim women does not form a part of essential
religious practice in Islamic faith.
schooling is incomplete without teachers, taught an d the
dress code. Collectively they make a singularity. N o
reasonable mind can imagine a school without unifor m. After
all, the concept of school uniform is not of a nasc ent origin. It
is not that, Moghuls or Britishers brought it here for the first
time. It has been there since the ancient gurukul days. Several
Indian scriptures mention samavastr/shubhravesh in
Samskrit, their English near equivalent being unifo rm.
278 makes copious reference to student uniforms. (T his work
is treated by the Apex Court as authoritative vide DEOKI
NANDAN vs. MURLIDHAR 75 ). In England, the first recorded
use of standardized uniform/dress code in instituti ons dates
to back to 1222 i.e., Magna Carta days. ‘ LAW, RELIGIOUS
Hunter-Henin; Mark Hill, a contributor to the book, at
what he pens is pertinent:
‘… The wearing of a prescribed uniform for school chil dren
of all ages is a near-universal feature of its educ ational
system, whether in state schools or in private (fee -paying)
schools. This is not a matter of primary or seconda ry
legislation or of local governmental regulation but rather
reflects a widespread and long-standing social prac tice. It
is exceptional for a school not to have a policy on uniform
for its pupils. The uniform (traditionally black or grey
trousers, jumpers and jackets in the coloured liver y of the
school and ties for boys serves to identify individ uals as
members of a specific institution and to encourage and
promote the corporate, collective ethos of the scho ol. More
subtly, by insisting upon identical clothing (often from a
designated manufacturer) it ensures that all school
children dress the same and appear equal: thus,
differences of social and economic background that would
be evident from the nature and extent of personal
wardrobes are eliminated. It is an effective leveli ng
feature-particularly in comprehensive secondary sch ools
whose catchment areas may include a range of school
children drawn from differing parental income brack ets
and social classes…’
68, edited by The Lawyers Cooperative Publishing Co mpany
states:
Ҥ249. In accord with the general principle that sc hool
authorities may make reasonable rules and regulatio ns
governing the conduct of pupils under their control , it may
be stated generally that school authorities may pre scribe
the kind of dress to be worn by students or make
reasonable regulations as to their personal
appearance…It has been held that so long as student s
are under the control of school authorities, they may be
required to wear a designated uniform, or may be
forbidden to use face powder or cosmetics, or to we ar
transparent hosiery low-necked dresses, or any styl e of
clothing tending toward immodesty in dress…
§251. Several cases have held that school regulati ons
proscribing certain hairstyles were valid, usually on the
basis that a legitimate school interest was served by such
a regulation. Thus, it has been held that a public high
school regulation which bars a student from attendi ng
classes because of the length or appearance of his hair is
not invalid as being unreasonable, and arbitrary as
having no reasonable connection with the successful
operation of the school, since a student’s unusual
hairstyle could result in the distraction of other pupils,
and could disrupt and impede the maintenance of a
proper classroom atmosphere or decorum… ”
(ii) The argument of petitioners that prescribing
school uniforms pertains to the domain of ‘ police power ’ and
therefore, unless the law in so many words confers such
power, there cannot be any prescription, is too far fetched. In
civilized societies, preachers of the education are treated next
to the parents. Pupils are under the supervisory co ntrol of the
teachers. The parents whilst admitting their wards to the
schools, in some measure share their authority with the
teachers. Thus, the authority which the teachers ex ercise over
the students is a shared ‘ parental power ’. The following
observations In T.M.A.PAI FOUNDATION, at paragraph 64,
lend credence to this view:
“An educational institution is established only for the
purpose of imparting education to the students. In such
an institution, it is necessary for all to maintain discipline
and abide by the rules and regulations that have be en
lawfully framed. The teachers are like foster- pare nts
who are required to look after, cultivate and guide the
students in their pursuit of education… ”
It is relevant to state that not even a single ruli ng of a court
nor a sporadic opinion of a jurist nor of an educat ionist was
cited in support of petitioners argument that presc ribing
school uniform partakes the character of ‘ police power’ .
Respondents are justified in tracing this power to the text &
context of sections 7(2) & 133 of the 1983 Act read with Rule
11 of 1995 Curricula Rules. We do not propose to re produce
these provisions that are as clear as gangetic wate rs. This
apart, the Preamble to the 1983 Act mentions inter alia of
“fostering the harmonious development of the mental and
physical faculties of students and cultivating a sc ientific and
secular outlook through education.” Section 7(2)(g)(v) provides
for promoting “ harmony and the spirit of common brotherhood
amongst all the people of India transcending religi ous, linguistic
and regional or sectional diversities to renounce p ractices
derogatory to the dignity of women.” The Apex Court in
MODERN DENTAL COLLEGE , supra, construed the term
‘education’ to include ‘curricula’ vide paragraph 1 23. The
word ‘curricula’ employed in section 7(2) of the Ac t needs to
be broadly construed to include the power to prescr ibe
uniform. Under the scheme of 1983 Act coupled with
international conventions to which India is a party , there is a
duty cast on the State to provide education at leas t up to
particular level and this duty coupled with power i ncludes the
power to prescribe school uniform.
AND DHIRAJLAL at page 98, parental and quasi parental
authority is discussed: “ The old view was that the authority of
a schoolmaster, while it existed, was the same as t hat of a
parent. A parent, when he places his child with a s choolmaster,
delegates to him all his own authority, so far as i t is necessary
for the welfare of the child. The modern view is th at the
schoolmaster has his own independent authority to a ct for the
welfare of the child. This authority is not limited to offences
committed by the pupil upon the premises of the sch ool, but
may extend to acts done by such pupil while on the way to and
from the school…” It is relevant to mention an old English case
in REX vs. NEWPORT (SALOP) 76 which these authors have
summarized as under:
“At a school for boys there was a rule prohibiting s moking
by pupils whether in the school or in public. A pup il after
returning home smoked a cigarette in a public stree t and
next day the schoolmaster administered to him five
strokes with a cane. It was held that the father of the boy
by sending him to the school authorized the schoolm aster
to administer reasonable punishment to the boy for
breach of a school rule, and that the punishment
administered was reasonable.”
Even in the absence of enabling provisions, we are of the view
that the power to prescribe uniform as of necessity inheres in
every school subject to all just exceptions.
(iv) The incidental question as to who should presc ribe
the school uniform also figures for our considerati on in the
light of petitioners’ contention that government ha s no power
in the scheme of 1983 Act. In T.M.A.PAI FOUNDATION, the
Apex Court observed at paragraph 55 as under:
“…There can be no doubt that in seeking affiliation or
recognition, the Board or the university or the aff iliating or
recognizing authority can lay down conditions consi stent
with the requirement to ensure the excellence of
education. It can, for instance, indicate the quali ty of the
teachers by prescribing the minimum qualifications that
they must possess, and the courses of study and
curricula. It can, for the same reasons, also stipu late the
existence of infrastructure sufficient for its grow th, as a
pre-requisite. But the essence of a private educati onal
institution is the autonomy that the institution mu st have
in its management and administration. There,
necessarily, has to be a difference in the administ ration
of private unaided institutions and the government- aided
institutions. Whereas in the latter case, the Gover nment
will have greater say in the administration, includ ing
admissions and fixing of fees, in the case of priva te
unaided institutions, maximum autonomy in the day-t o-
day administration has to be with the private unaid ed
institutions. Bureaucratic or governmental interfer ence in
the administration of such an institution will unde rmine
its independence... ”
Section 133(2) of the 1983 Act vests power in the g overnment
to give direction to any educational institution fo r carrying out
the purposes of the Act or to give effect to any of the
provisions of the Act or the Rules, and that the in stitution be
it governmental, State aided or privately managed, is bound
to obey the same. This section coupled with section 7(2)
clothes the government with power inter alia to prescribe or
caused to be prescribed school uniform. The governm ent vide
Circular dated 31.1.2014 accordingly has issued a d irection.
Significantly, this is not put in challenge and we are not called
upon to adjudge its validity, although some submiss ions were
made de hors the pleadings that to the extent the Circular
includes the local Member of the Legislative Assemb ly and his
nominee respectively as the President and Vice Pres ident of
the College Betterment (Development) Committee, it is
vulnerable for challenge. In furtherance thereof, i t has also
issued a Government Order dated 5.2.2022. We shall be
discussing more about the said Circular and the Ord er, a bit
later. Suffice it to say now that the contention as to absence
of power to prescribe dress code in schools is liab le to be
rejected.
15, 19(1)(a) & 21:
(i) There has been a overwhelming juridical opinion
in all advanced countries that in accord with the g eneral
principle, the school authorities may make reasonab le
regulations governing the conduct of pupils under t heir
control and that they may prescribe the kind of dre ss to be
worn by students or make reasonable regulations as to their
personal appearance, as well. In MILLER vs. GILLS 77 , a rule
that the students of an agricultural high school sh ould wear a
khaki uniform when in attendance at the class and w hilst
visiting public places within 5 miles of the school is not ultra
vires, unreasonable, and void. Similarly, in CHRISTMAS vs. EL
RENO BOARD OF EDUCATION 78 , a regulation prohibiting male
students who wore hair over their eyes, ears or col lars from
participating in a graduation diploma ceremony, whi ch had
no effect on the student’s actual graduation from h igh school,
so that no educational rights were denied, has been held
valid. It is also true that our Constitution protec ts the rights
of school children too against unreasonable regulat ions.
However, the prescription of dress code for the stu dents that
too within the four walls of the class room as dist inguished
from rest of the school premises does not offend
constitutionally protected category of rights, when they are
‘religion-neutral’ and ‘ universally applicable ’ to all the
students. This view gains support from Justice Scal ia’s
uniforms promote harmony & spirit of common brother hood
transcending religious or sectional diversities. Th is apart, it is
impossible to instill the scientific temperament wh ich our
Constitution prescribes as a fundamental duty vide Article
51A(h) into the young minds so long as any proposit ions such
as wearing of hijab or bhagwa are regarded as religiously
sacrosanct and therefore, not open to question. The y
inculcate secular values amongst the students in th eir
impressionable & formative years.
(ii) The school regulations prescribing dress code for
all the students as one homogenous class, serve
constitutional secularism. It is relevant to quote the
observations of Chief Justice Venkatachalaiah, in ISMAIL
“The concept of secularism is one facet of the righ t to
equality woven as the central golden thread in the fabric
depicting the pattern of the scheme in our Constitu tion…
In a pluralist, secular polity law is perhaps the g reatest
integrating force. Secularism is more than a passiv e…It is
a positive concept of equal treatment of all religi ons. What
is material is that it is a constitutional goal and a Basic
Feature of the Constitution.”
It is pertinent to mention that the preamble to the 1983 Act
appreciably states the statutory object being “ fostering the
harmonious development of the mental and physical f aculties
of students and cultivating a scientific and secula r outlook
through education.” This also accords with the Fundamental
Duty constitutionally prescribed under Article 51A( e) in the
same language, as already mentioned above. Petition ers’
argument that ‘ the goal of education is to promote plurality, not
promote uniformity or homogeneity, but heterogeneit y ’ and
therefore, prescription of student uniform offends the
constitutional spirit and ideal, is thoroughly misc onceived.
(iii) Petitioners argued that regardless of their f reedom
of conscience and right to religion, wearing of hijab does
possess cognitive elements of ‘ expression’ protected under
supra and it has also the substance of privacy/autonomy that
are guarded under Article 21 vide K.S.PUTTASWAMY, supra .
Learned advocates appearing for them vociferously s ubmit
that the Muslim students would adhere to the dress code with
hijab of a matching colour as may be prescribed and this
should be permitted by the school by virtue of ‘ reasonable
accommodation’ . If this proposal is not conceded to, then
prescription of any uniform would be violative of t heir rights
availing under these Articles, as not passing the ‘ least
restrictive test ’ and ‘ proportionality test ’, contended they. In
support, they press into service CHINTAMAN RAO and MD.
FARUK, supra . Let us examine this contention. The Apex
Court succinctly considered these tests in INTERNET &
the following observations:
"…While testing the validity of a law imposing a
restriction on the carrying on of a business or a
profession, the Court must, as formulated in Md.
Faruk, attempt an evaluation of (i) its direct and
immediate impact upon of the fundamental rights of
the citizens affected thereby (ii) the larger publi c
interest sought to be ensured in the light of the o bject
sought to be achieved (iii) the necessity to restri ct the
citizens’ freedom (iv) the inherent pernicious natu re of
the act prohibited or its capacity or tendency to b e
harmful to the general public and (v) the possibili ty of
achieving the same object by imposing a less drasti c
restraint... On the question of proportionality, th e
learned Counsel for the petitioners relies upon the
four-pronged test summed up in the opinion of the
majority in Modern Dental College and Research
Centre v. State of Madhya Pradesh. These four tests
are (i) that the measure is designated for a proper
purpose (ii) that the measures are rationally
connected to the fulfilment of the purpose (iii) th at
there are no alternative less invasive measures and
(iv) that there is a proper relation between the
importance of achieving the aim and the importance
of limiting the right…But even by our own standards ,
we are obliged to see if there were less intrusive
measures available and whether RBI has at least
considered these alternatives..."
(iv) All rights have to be viewed in the contextual
conditions which were framed under the Constitution and the
way in which they have evolved in due course. As al ready
mentioned above, the Fundamental Rights have relati ve
content and their efficacy levels depend upon the
circumstances in which they are sought to be exerci sed. To
evaluate the content and effect of restrictions and to adjudge
their reasonableness, the aforesaid tests become ha ndy.
However, the petitions we are treating do not invol ve the right
to freedom of speech & expression or right to priva cy, to such
an extent as to warrant the employment of these tes ts for
evaluation of argued restrictions, in the form of s chool dress
code. The complaint of the petitioners is against t he violation
of essentially ‘derivative rights’ of the kind. The ir grievances
do not go to the core of substantive rights as such but lie in
the penumbra thereof. So, by a sheer constitutional logic, the
protection that otherwise avails to the substantive rights as
such cannot be stretched too far even to cover the derivative
rights of this nature, regardless of the ‘ qualified public places ’
in which they are sought to be exercised. It hardly needs to be
stated that schools are ‘ qualified public places ’ that are
structured predominantly for imparting educational
instructions to the students. Such ‘ qualified spaces ’ by their
very nature repel the assertion of individual right s to the
detriment of their general discipline & decorum. Ev en the
substantive rights themselves metamorphise into a kind of
derivative rights in such places. These illustrate this: the
rights of an under – trial detenue qualitatively an d
quantitatively are inferior to those of a free citi zen. Similarly,
the rights of a serving convict are inferior to tho se of an under
– trial detenue. By no stretch of imagination, it c an be
gainfully argued that prescription of dress code of fends
students’ fundamental right to expression or their autonomy.
In matters like this, there is absolutely no scope for complaint
of manifest arbitrariness or discrimination inter alia under
Articles 14 & 15, when the dress code is equally ap plicable to
all the students, regardless of religion, language, gender or
the like. It is nobody’s case that the dress code i s sectarian.
(v) Petitioners’ contention that ‘ a class room should be
a place for recognition and reflection of diversity of society, a
mirror image of the society (socially & ethically)’ in its deeper
analysis is only a hollow rhetoric, ‘ unity in diversity ’ being the
oft quoted platitude since the days of IN RE KERALA
EDUCATION BILL, supra , wherein paragraph 51 reads: ‘…the
genius of India has been able to find unity in dive rsity by
assimilating the best of all creeds and cultures.’ The counsel
appearing for Respondent Nos.15 & 16 in W.P.No.2146 /2022,
is justified in pressing into service a House of Lo rds decision
supra wherein at paragraph 97, it is observed as under:
“But schools are different. Their task is to educate the
young from all the many and diverse families and
communities in this country in accordance with the
national curriculum. Their task is to help all of t heir pupils
achieve their full potential. This includes growing up to
play whatever part they choose in the society in wh ich
they are living. The school’s task is also to promo te the
ability of people of diverse races, religions and c ultures to
live together in harmony. Fostering a sense of comm unity
and cohesion within the school is an important part of
that. A uniform dress code can play its role in smo othing
over ethnic, religious and social divisions… ”
(vi) It hardly needs to be stated that our Constitu tion
is founded on the principle of ‘ limited government ’. “What is
the most important gift to the common person given by this
Constitution is ‘fundamental rights’ , which may be called
‘human rights’ as well .” It is also equally true that in this
country, the freedom of citizens has been broadenin g
precedent by precedent and the most remarkable feat ure of
this relentless expansion is by the magical wand of judicial
activism. Many new rights with which the Makers of our
Constitution were not familiar, have been shaped by the
constitutional courts. Though the basic human right s are
universal, their regulation as of necessity is also a
constitutional reality. The restriction and regulat ion of rights
be they fundamental or otherwise are a small price which
persons pay for being the members of a civilized co mmunity.
There has to be a sort of balancing of competing in terests i.e.,
the collective rights of the community at large and the
individual rights of its members. True it is that t he Apex
that dressing too is an ‘expression’ protected unde r Article
19(1)(a) and therefore, ordinarily, no restriction can be placed
on one’s personal appearance or choice of apparel. However, it
also specifically mentioned at paragraph 69 that th is right is
“subject to the restrictions contained in Article 19 (2) of the
Constitution. ” The said decision was structured keeping the
‘gender identity’ at its focal point, attire being associated with
such identity. Autonomy and privacy rights have als o
blossomed vide K.S.PUTTASWAMY, supra. We have no quarrel
with the petitioners’ essential proposition that wh at one
desires to wear is a facet of one’s autonomy and th at one’s
attire is one’s expression. But all that is subject to reasonable
regulation.
(vii) Nobody disputes that persons have a host of r ights
that are constitutionally guaranteed in varying deg rees and
they are subject to reasonable restrictions. What i s reasonable
is dictated by a host of qualitative & quantitative factors.
Ordinarily, a positive of the right includes its ne gative. Thus,
right to speech includes right to be silent vide BIJOE
EMMANUEL. However, the negative of a right is not invariably
coextensive with its positive aspect. Precedentiall y speaking,
the right to close down an industry is not coextens ive with its
positive facet i.e., the right to establish industr y under Article
the right to life does not include the right to die under Article
commit suicide being an offence under Section 309 o f Indian
Penal Code . It hardly needs to be stated the content & scope
of a right, in terms of its exercise are circumstan tially
dependent. Ordinarily, liberties of a person stand curtailed
inter alia by his position, placement and the like. The extent of
autonomy is enormous at home, since ordinarily resi dence of
a person is treated as his inviolable castle. Howev er, in
‘qualified public places ’ like schools, courts, war rooms,
defence camps, etc., the freedom of individuals as of
necessity, is curtailed consistent with their disci pline &
decorum and function & purpose. Since wearing hijab as a
facet of expression protected under Article 19(1)(a ) is being
debated, we may profitably advert to the ‘ free speech
jurisprudence ’ in other jurisdictions. The Apex Court in
observed:
"While examining the constitutionality of a law
which is alleged to contravene Article 19(1)(a) of the
Constitution, we cannot, no doubt, be solely guided
by the decisions of the Supreme Court of the United
States of America. But in order to understand the
basic principles of freedom of speech and expressio n
and the need for that freedom in a democratic
country, we may take them into consideration...".
(viii) In US, the Fourteenth Amendment is held to
protect the First Amendment rights of school childr en against
unreasonable rules or regulations vide BURNSIDE vs.
BYARS 84 . Therefore, a prohibition by the school officials, of a
particular expression of opinion is held unsustaina ble where
there is no showing that the exercise of the forbid den right
would materially interfere with the requirements of a school’
positive discipline. However, conduct by a student , in class or
out of it, which for any reason-whether it stems fr om time,
place, or type of behavior-materially disrupts clas s work or
involves substantial disorder or invasion of the ri ghts of
others, is not immunized by the constitutional guar anty of
wherein right to speech & expression is held to hea rt, if school
restrictions are sustainable on the ground of posit ive
discipline & decorum, there is no reason as to why it should
be otherwise in our land. An extreme argument that the
students should be free to choose their attire in t he school
individually, if countenanced, would only breed ind iscipline
that may eventually degenerate into chaos in the ca mpus and
84 363 F 2d 744 (5 th Cir. 1966)
later, in the society at large. This is not desirab le to say the
least. It is too farfetched to argue that the schoo l dress code
militates against the fundamental freedoms guarante ed under
Articles, 14, 15, 19, 21 & 25 of the Constitution a nd therefore,
the same should be outlawed by the stroke of a pen.
The counsel for the petitioners passionately submit ted
that the students should be permitted to wear hijab of
structure & colour that suit to the prescribed dres s code. In
support of this, they bank upon the ‘ principle of reasonable
accommodation ’. They drew our attention to the prevalent
practice of dress codes/uniforms in Kendriya Vidyalayas . We
are not impressed by this argument. Reasons are not far to
seek: firstly, such a proposal if accepted, the sch ool uniform
ceases to be uniform. There shall be two categories of girl
students viz., those who wear the uniform with hijab and
those who do it without. That would establish a sen se of
‘social-separateness’, which is not desirable. It also offends
the feel of uniformity which the dress-code is desi gned to
bring about amongst all the students regardless of their
religion & faiths. As already mentioned above, the statutory
scheme militates against sectarianism of every kind .
Therefore, the accommodation which the petitioners seek
cannot be said to be reasonable. The object of pre scribing
uniform will be defeated if there is non-uniformity in the
matter of uniforms. Youth is an impressionable peri od when
identity and opinion begin to crystallize. Young st udents are
able to readily grasp from their immediate environm ent,
differentiating lines of race, region, religion, la nguage, caste,
place of birth, etc. The aim of the regulation is t o create a
‘safe space’ where such divisive lines should have no place
and the ideals of egalitarianism should be readily apparent to
all students alike. Adherence to dress code is a ma ndatory for
students. Recently, a Division Bench of this Court disposed
off on 28.08.2019, Writ Petition No.13751 OF 2019 ( EDN-
on this premise. What the Kendriya Vidyalayas prescribe as
uniform/dress code is left to the policy of the Cen tral
Government. Ours being a kind of Federal Structure
(Professor K.C. Wheare), the Federal Units, namely the States
need not toe the line of Center.
(x) Petitioners’ heavy reliance on the South Africa n
supra, does not much come to their aid. Constitutional
schemes and socio-political ideologies vary from on e country
to another, regardless of textual similarities. A C onstitution of
a country being the Fundamental Law, is shaped by s everal
streams of forces such as history, religion, cultur e, way of life,
values and a host of such other factors. In a given fact matrix,
how a foreign jurisdiction treats the case cannot b e the sole
model readily availing for adoption in our system w hich
ordinarily treats foreign law & foreign judgments a s matters of
facts. Secondly, the said case involved a nose stud , which is
ocularly insignificantly, apparently being as small as can be.
By no stretch of imagination, that would not in any way affect
the uniformity which the dress code intends to brin g in the
class room. That was an inarticulate factor of the said
judgment. By and large, the first reason supra answers the
Malaysian court decision too 85 . Malaysia being a theistic
Nation has Islam as the State religion and the cour t in its
wisdom treated wearing hijab as being a part of religious
practice. We have a wealth of material with which a view in
respectful variance is formed. Those foreign decisi ons cited by
the other side of spectrum in opposing hijab argument, for the
same reasons do not come to much assistance. In sev eral
countries, wearing of burqa or hijab is prohibited, is of no
assistance to us. Noble thoughts coming from whiche ver
direction are most welcome. Foreign decisions also throw light
on the issues debated, cannot be disputed. However, courts
have to adjudge the causes brought before them esse ntially in
accordance with native law.
(i) The government vide Circular dated 31.1.2014
directed constitution of School Betterment Committe e inter
alia with the object of securing State Aid & its appropr iation
and enhancing the basic facilities & their optimum utilization.
This Committee in every Pre-University College shal l be
headed by the local Member of Legislative Assembly (MLA) as
its President and his nominee as the Vice President . The
Principal of the College shall be the Member Secret ary. Its In view of the above, we are of the considered opin ion
that the prescription of school uniform is only a
reasonable restriction constitutionally permissible which
the students cannot object to.
membership comprises of student representatives, pa rents,
one educationist, a Vice Principal/Senior Professor & a Senior
Lecturer. The requirement of reservation of SC/ST/W omen is
horizontally prescribed. It is submitted at the Bar that these
Committees have been functioning since about eight years or
so with no complaints whatsoever. Petitioners argue d for
Committee’s invalidation on the ground that the pre sence of
local Member of Legislative Assembly and his nomine e would
only infuse politics in the campus and therefore, n ot
desirable. He also submits that even otherwise, the College
Development Committee being extra-legal authority h as no
power to prescribe uniform.
(ii) We are not much inclined to undertake a deeper
discussion on the validity of constitution & functi oning of
School Betterment (Development) Committees since no ne of
the Writ Petitions seeks to lay challenge to Govern ment
Circular of January 2014. Merely because these Comm ittees
are headed by the local Member of Legislative Assem bly, we
cannot hastily jump to the conclusion that their fo rmation is
bad. It is also relevant to mention what the Apex C ourt said in
Professor Wade’s Administrative Law:
“…Apropos to this principle, Prof. Wade states: "th e
principle must be equally true even where the 'bran d' of
invalidity' is plainly visible; for their also the order can
effectively be resisted in law only by obtaining th e
decision of the Court (See: Administrative Law 6th Ed. p.
352). Prof. Wade sums up these principles: The trut h of
the matter is that the court will invalidate an ord er only if
'the right remedy is sought by the right person in the right
proceedings and circumstances. The order may be
hypothetically a nullity, but the Court may refuse to
quash it because of the plain- tiff's lack of stand ing,
because he does not deserve a discretionary remedy,
because he has waived his rights, or for some other legal
reason. In any such case the 'void' order remains e ffective
and is, in reality, valid. It follows that an order may be
void for one purpose and valid for another, and tha t it
may be void against one person but valid against
another." (Ibid p. 352) It will be clear from these
principles, the party aggrieved by the invalidity o f the
order has to approach the Court for relief of decla ration
that the order against him is inoperative and not b inding
upon him. He must approach the Court within the
prescribed period of limitation. If the statutory t ime limit
expires the Court cannot give the declaration sough t
It is nobody’s case that the Government Circular is void ab
initio and consequently, the School Betterment (Developmen t)
Committees are non est . They have been functioning since last
eight years and no complaint is raised about their
performance, nor is any material placed on record t hat
warrants consideration of the question of their val idity despite
absence of pleadings & prayers. It hardly needs to be stated
that schools & hospitals amongst other, are the ele ctoral
considerations and therefore, peoples’ representati ves do
show concern for the same, as a measure of their
performances. That being the position, induction of local
Members of Legislative Assembly in the Committees per se is
not a ground for voiding the subject Circular.
(iii) We have already held that the schools &
institutions have power to prescribe student unifor m. There is
no legal bar for the School Betterment (Development )
Committees to associate with the process of such
prescription. However, there may be some scope for the view
that it is not desirable to have elected representa tives of the
people in the school committees of the kind, one of the
obvious reasons being the possible infusion of ‘ party-politics ’
into the campus. This is not to cast aspersion on a nyone. We
are not unaware of the advantages of the schools as sociating
with the elected representatives. They may fetch fu nds and
such other things helping development of institutio ns. This
apart, no law or ruling is brought to our notice th at interdicts
their induction as the constituent members of such
committees.
(i) The validity of Government Order dated
05.02.2022 had been hotly debated in these petition s.
Petitioners argue that this order could not have be en issued
in purported exercise of power under sections 133 a nd 7(2) of
the 1983 Act read with Rule 11 of the 1995 Curricul a Rules.
The State and other contesting respondents contend to the
contrary, inter alia by invoking sections 142 & 143 of the
1983 Act, as well. This Order per se does not prescribe any
dress code and it only provides for prescription of uniform in
four different types of educational institutions. T he near
English version of the above as submitted by both t he sides is
already stated in the beginning part of the judgmen t.
However, the same is reiterated for the ease of ref erence:
Students should compulsorily adhere to the dress co de/uniform
as follows:
a. in government schools, as prescribed by the
government;
b. in private schools, as prescribed by the school
management;
c. in Pre–University colleges that come within the
jurisdiction of the Department of the Pre–Universit y
Education, as prescribed by the College Development
Committee or College Supervision Committee; and
d. wherever no dress code is prescribed, such attire that
would accord with ‘equality & integrity’ and would not
disrupt the ‘public order’.
(ii) Petitioners firstly argued that this Order suf fers
from material irregularity apparent on its face ina smuch as
the rulings cited therein do not lay down the ratio which the
government wrongly states that they do. This Order refers to
two decisions of the Kerala High Court and one deci sion of
Bombay and Madras High Courts each. We have already
discussed all these decisions supra at paragraph (X ) and
therefore, much need not be discussed here. Regardl ess of the
ratio of these decisions, if the Government Order i s otherwise
sustainable in law, which we believe it does, the c hallenge
thereto has to fail for more than one reason: The s ubject
matter of the Government Order is the prescription of school
uniform. Power to prescribe, we have already held, avails in
the scheme of 1983 Act and the Rules promulgated
thereunder. Section 133(2) of the Act which is broa dly worded
empowers the government to issue any directions to give effect
to the purposes of the Act or to any provision of t he Act or to
any Rule made thereunder. This is a wide conferment of
power which obviously includes the authority to pre scribe
school dress code. It is more so because Rule 11 of 1995
Curricula Rules itself provides for the prescriptio n of school
uniform and its modalities. The Government Order ca n be
construed as the one issued to give effect to this rule itself.
Such an order needs to be construed in the light of the said
rule and the 2014 Circular, since there exists a ki nship inter
se . Therefore, the question as to competence of the
government to issue order of the kind is answered i n the
affirmative.
(iii) Petitioners’ second contention relates to exe rcise of
statutory power by the government that culminated i nto
issuance of the impugned order. There is difference between
existence of power and the exercise of power; exist ence of
power per se does not justify its exercise. The public power
that is coupled with duty needs to be wielded for e ffectuating
the purpose of its conferment. Learned counsel appe aring for
the students argued that the Government Order has t o be
voided since the reasons on which it is structured are ex facie
bad and that new grounds cannot be imported to the body of
the Order for infusing validity thereto vide COMMISSIONER OF
articulated the Administrative Law principle that t he validity
of a statutory order has to be adjudged only on the reasons
stated in the order itself. We have no quarrel with this
principle which has been reiterated in MOHINDER SINGH
GILL, supra. However, we are not sure of its invocation in a
case wherein validity of the impugned order can oth erwise be
sustained on the basis of other intrinsic material. As we have
already mentioned, the Government Order is issued t o give
effect to the purposes of the 1983 Act and to Rule 11 of the
1995 Curricula Rules. That being the position the q uestion of
un-sustainability of some of the reasons on which t he said
Order is constructed, pales into insignificance.
(iv) Petitioners next argued that the Government O rder
cites ‘ sārvajanika suvyavasthe ’ i.e., ‘ public order’ as one of the
reasons for prescribing uniform to the exclusion of hijab;
disruption of public order is not by those who wear this
apparel but by those who oppose it; most of these opposers
wear bhagwa or such other cloth symbolic of religious
overtones. The government should take action agains t the
hooligans disrupting peace, instead of asking the M uslim girl
students to remove their hijab. In support of this contention,
they drew attention of the court to the concept of ‘hecklers
veto’ as discussed in K.M.SHANKARAPPA, supra . They further
argued that ours being a ‘ positive secularism ’, the State
should endeavor to create congenial atmosphere for the
exercise of citizens rights, by taking stern action against those
who obstruct vide PRAVEEN BHAI THOGADIA, supra. Again
we do not have any quarrel with the proposition of law.
However, we are not convinced that the same is invo cable for
invalidating the Government Order, which per se does not
prescribe any uniform but only provides for prescri ption in a
structured way, which we have already upheld in the light of
our specific finding that wearing hijab is not an essential
religious practice and school uniform to its exclusion can be
prescribed. It hardly needs to be stated that the u niform can
exclude any other apparel like bhagwa or blue shawl that may
have the visible religious overtones . The object of prescribing
uniform cannot be better stated than by quoting fro m
Department of Education:
‘A safe and disciplined learning environment is the first
requirement of a good school. Young people who are safe
and secure, who learn basic American values and the
essentials of good citizenship, are better students . In
response to growing levels of violence in our schoo ls,
many parents, teachers, and school officials have c ome to
see school uniforms as one positive and creative wa y to
reduce discipline problems and increase school safe ty.’
(v) We hasten to add that certain terms used in a
Government Order such as ‘ public order’, etc ., cannot be
construed as the ones employed in the Constitution or
Statutes. There is a sea of difference in the textu al structuring
of legislation and in promulgating a statutory orde r as the one
at hands. The draftsmen of the former are ascribed of due
diligence & seriousness in the employment of termin ology
which the government officers at times lack whilst textually
framing the statutory policies. Nowadays, courts do often
come across several Government Orders and Circulars which
have lavish terminologies, at times lending weight to the
challenge. The words used in Government Orders have to be
construed in the generality of their text and with common
sense and with a measure of grace to their linguist ic pitfalls.
The text & context of the Act under which such orde rs are
issued also figure in the mind. The impugned order could
have been well drafted, is true. ‘ There is scope for improvement
even in heaven ’ said Oscar Wilde. We cannot resist ourselves
from quoting what Justice Holmes had said in TOWNE vs.
EISNER 88 , “a word is not a crystal, transparent and
unchanged; it is the skin of a living thought and m ay vary
greatly in color and content according to the circu mstances and
the time in which it is used.” Thus, there is no much scope for
invoking the concept of ‘ law and order’ as discussed in ANITA
and GULAB ABBAS , supra , although the Government Order
gives a loose impression that there is some nexus b etween
wearing of hijab and the ‘ law & order ’ situation.
(vi) Petitioners had also produced some ‘ loose papers ’
without head and tail, which purported to be of a b rochure
issued by the Education Department to the effect th at there
was no requirement of any school uniform and that t he
prescription of one by any institution shall be ill egal. There is
nothing on record for authenticating this version. Those
producing the same have not stated as to who their author is
and what legal authority he possessed to issue the same.
Even otherwise, this purported brochure cannot stan d in the
face of Government Order dated 05.02.2022 whose val idity we
have already considered. Similarly, petitioners had banked
upon the so called research papers allegedly published by
‘Pew Research Centre ’ about r eligious clothing and personal
appearance . They contend that this paper is generated from
the research that studied various religious groups &
communities and that a finding has been recorded: ‘ Most
Hindu, Muslim and Sikh women cover their heads outs ide the
home ’ and therefore, the Government Order which militat es
against this social reality, is arbitrary. We are n ot inclined to
subscribe to this view. No credentials of the resea rchers are
stated nor the representative character of the stat istics
mentioned in the papers are demonstrated. The authe nticity
of the contents is apparently lacking.
(vii) Petitioners contended that the said Governmen t
Order has been hastily issued even when the contemp lated
High Powered Committee was yet to look into the iss ue as to
the desirability of prescription and modules of dre ss codes in
the educational institutions. The contents of Gover nment
Order give this impression, is true. However, that is too feeble
a ground for faltering a policy decision like this. At times,
regard being had to special conditions like social unrest and
public agitations, governments do take certain urge nt
decisions which may appear to be knee-jerk reactions.
However, these are matters of perceptions. May be, such
decisions are at times in variance with their earli er stand.
Even that cannot be faltered when they are dictated by
circumstances. After all, in matters of this kind, the doctrine
of ‘estoppel’ does not readily apply. Whether a particular
decision should be taken at a particular time, is a matter left
to the executive wisdom, and courts cannot run a race of
opinions with the Executive, more particularly when policy
content & considerations that shaped the decision a re not
judicially assessable. The doctrine of ‘separation of powers’
which figures in our constitution as a ‘ basic feature ’ expects
the organs of the State to show due deference to ea ch other’s
opinions. The last contention that the Government O rder is a
product of ‘ acting under dictation ’ and therefore, is bad in law
is bit difficult to countenance. Who acted under wh ose
dictation cannot be adjudged merely on the basis of some
concessional arguments submitted on behalf of the S tate
Government. Such a proposition cannot be readily in voked
inasmuch as invocation would affect the institution al dignity
& efficacy of the government. A strong case has to be made to
invoke such a ground, in terms of pleadings & proof .
In view of the above, we are of the considered opin ion
that the government has power to issue the impugned
Order dated 05.2.2022 and that no case is made out for
its invalidation.
(i) There have been several International Conventio ns
& Conferences in which India is a participant if no t a
are only a few to name. Under our Constitutional
Jurisprudence, owing to Article 51 which provides for
promotion of international peace & security, the In ternational
Conventions of the kind assume a significant role i n
construing the welfare legislations and the statute s which
have kinship to the subject matter of such Conventi ons. In a
sense, these instruments of International Law perme ate into
our domestic law. Throughout, there has been both l egislative
& judicial process to emancipate women from pernici ous
discrimination in all its forms and means. Women re gardless
of religion being equal, if not superior to men, ar e also joining
defence services on permanent commission basis vide Apex
Court decision in C.A.No.9367-9369/2011 between THE
decided on 17.2.2020. Be it business, industry, pro fession,
public & private employments, sports, arts and such other
walks of life, women are breaking the glass ceiling and faring
better than their counterparts.
(ii) It is relevant to quote what Dr. B.R.Ambedkar in
Chapter X, Part 1 titled ‘ Social Stagnation’ wrote:
“…A woman (Muslim) is allowed to see only her
son, brothers, father, uncles, and husband, or any other
near relation who may be admitted to a position of trust.
She cannot even go to the Mosque to pray, and must wear
burka (veil) whenever she has to go out. These burk a
woman walking in the streets is one of the most hid eous
sights one can witness in India…The Muslims have al l
the social evils of the Hindus and something more. That
something more is the compulsory system of purdah f or
Muslim women… Such seclusion cannot have its
deteriorating effect upon the physical constitution of
Muslim women… Being completely secluded from the
outer world, they engage their minds in petty famil y
quarrels with the result that they become narrow an d
restrictive in their outlook… They cannot take part in any
outdoor activity and are weighed down by a slavish
mentality and an inferiority complex…Purdah women i n
particular become helpless, timid…Considering the l arge
number of purdah women amongst Muslims in India, on e
can easily understand the vastness and seriousness of
the problem of purdah…As a consequence of the purda h
system, a segregation of Muslim women is brought ab out
What the Chief Architect of our Constitution observ ed more
than half a century ago about the purdah practice equally
applies to wearing of hijab there is a lot of scope for the
argument that insistence on wearing of purdah , veil, or
headgear in any community may hinder the process of
emancipation of woman in general and Muslim woman i n
particular. That militates against our constitution al spirit of
‘equal opportunity’ of ‘public participation ’ and ‘ positive
secularism ’. Prescription of school dress code to the exclusi on
of hijab, bhagwa, or any other apparel symbolic of religion can
be a step forward in the direction of emancipation and more
particularly, to the access to education. It hardly needs to be
stated that this does not rob off the autonomy of w omen or
their right to education inasmuch as they can wear any
apparel of their choice outside the classroom.
The petitioners in W.P. No.2146/2022, have sought f or a
Writ of Mandamus for initiating a disciplinary enqu iry on the
ground that the respondent Nos.6 to 14 i.e., Princi pal &
teachers of the respondent-college are violating th e
departmental guidelines which prohibit prescription of any
uniform and for their hostile approach. Strangely, petitioners
have also sought for a Writ of Quo Warranto against
respondent Nos. 15 & 16 for their alleged interfere nce in the
administration of 5 th respondent school and for promoting
political agenda. The petition is apparently ill-dr afted and
pleadings lack cogency and coherence that are requi red for
considering the serious prayers of this kind. We ha ve already
commented upon the Departmental Guidelines as havin g no
force of law. Therefore, the question of the said r espondents
violating the same even remotely does not arise. We have also
recorded a finding that the college can prescribe u niform to
the exclusion of hijab or bhagwa or such other religious
symbols, and therefore, the alleged act of the respondents i n
seeking adherence to the school discipline & dress code
cannot be faltered. Absolutely no case is made out for
granting the prayers or any other reliefs on the ba sis of these
pleadings. The law of Quo Warranto is no longer in a fluid
state in our country; the principles governing issu ance of this
writ having been well defined vide UNIVERSITY OF MY SORE
vs. C.D. GOVINDA RAO 89 . For seeking a Writ of this nature,
one has to demonstrate that the post or office whic h the
person concerned holds is a public post or a public office. In
our considered view, the respondent Nos.15 & 16 do not hold
any such position in the respondent-school. Their p lacement
in the College Betterment (Development) Committee d oes not
fill the public character required as a pre-conditi on for the
issuance of Writ of Quo Warranto .
From the submissions made on behalf of the
Respondent – Pre – University College at Udupi and the
material placed on record, we notice that all was w ell with the
dress code since 2004. We are also impressed that e ven
Muslims participate in the festivals that are celeb rated in the
‘ashta mutt sampradāya ’, (Udupi being the place where eight
Mutts are situated). We are dismayed as to how all of a
sudden that too in the middle of the academic term the issue
of hijab is generated and blown out of proportion by the
powers that be. The way, hijab imbroglio unfolded gives scope
for the argument that some ‘unseen hands’ are at work to In view of the above, we are of the considered opin ion
that no case is made out in W.P. No.2146/2022 for
issuance of a direction for initiating disciplinary
enquiry against respondent Nos. 6 to 14. The praye r for
issuance of Writ of Quo Warranto against respondent
Nos. 15 and 16 is rejected being not maintainable.
engineer social unrest and disharmony. Much is not
necessary to specify. We are not commenting on the ongoing
police investigation lest it should be affected. We have perused
and returned copies of the police papers that were furnished
to us in a sealed cover. We expect a speedy & effec tive
investigation into the matter and culprits being br ought to
book, brooking no delay.
(i) One Dr. Vinod Kulkarni has filed PIL in
W.P.No.3424/2022 seeking a Writ of Mandamus to the
Central Government and State Government inter alia ‘to
permit Female Muslim students to sport Hijab provid ed they
wear the stipulated school uniform also ’ ( sic ). The petition
cases. Petition is unsatisfactorily structured on t he basis of
some print & electronic media reports that are not made part
of the paper book. There is another PIL in GHANSHYAM
RES-PIL) inter alia seeking a Writ of Mandamus for
undertaking an investigation by the Central Bureau of
Investigation (CBI), National Investigating Agency (NIA) as to
the involvement of radical Islamic organizations su ch as
Popular Front of India, Students Islamic Organizati on of
India, Campus Front of India and Jamaat -e-Islami and their
funding by some foreign universities to Islamize In dia. There
are other incoherent prayers. This petitioner oppos es the case
of students who desire to wear hijab . Most of the contentions
taken up in these petitions are broadly treated in the
companion Writ Petitions. We are not inclined to en tertain
these two Writ Petitions filed in PIL jurisdiction, both on the
ground of their maintainability & merits. The secon d petition,
it needs to be stated, seeks to expand the paramete rs of the
essential lis involved in all these cases much beyond the
warranted frame of consideration. In W.P.No.3942/20 22 (GM-
STATE OF KARNATAKA decided on 25.02.2022, we have
already held that when the aggrieved parties are ef fectively
prosecuting their personal causes, others cannot in terfere by
invoking PIL jurisdiction. A battery of eminent law yers are
representing the parties on both the sides. Even ot herwise, no
exceptional case is made out for our indulgence.
In the above circumstances, all these petitions bei ng
devoid of merits, are liable to be and accordingly are
dismissed. In view of dismissal of these Writ Petit ions, all
pending applications pale into insignificance and a re
accordingly, disposed off.
Costs made easy.
In view of the above, we are of the considered opin ion
that both the above Writ Petitions filed as Public
Interest Litigations are liable to be rejected, abs olutely
no case having been made out for indulgence.
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The Karnataka High Court on Tuesday upheld a February 5 government order (GO) which effectively empowers colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus [Smt Resham v. State of Karnataka].
A three-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held:
- Hijab is not a part of essential religious practices of Islam;
- Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);
- The government has the power to pass the GO; no case is made out for its invalidation.
The hearing before the Bench had lasted 11 days, before the verdict was reserved on February 25. On the very first day of the hearing, the Court had passed an interim order directing students not to wear hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in colleges which have a prescribed uniform.
The petitioners - Muslim girl students from various colleges in Karnataka - had approached the High Court after they were denied permission to attend classes on account of wearing hijab. Among the grounds cited in the petition were that the freedom of conscience and the right to religion are both guaranteed by the Constitution, despite which the students were singled out arbitrarily for belonging to the Islamic faith.
Read Day 1 arguments here.
Read Day 2 arguments here.
Read Day 3 arguments here.
Read Day 4 arguments here.
Read Day 5 arguments here.
Read Day 6 arguments here.
Read Day 7 arguments here.
Read Day 8 arguments here.
Read Day 9 arguments here.
Read Day 10 arguments here.
Read Day 11 arguments here.
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2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated
27.06.2022 passed by the High Court at Calcutta in Revision Application No. 1328/2022,
by which the High Court has dismissed the said revision application preferred by the
appellant – accused and has confirmed the order passed by the learned Special Court,
West Bengal (MP & MLA case), Bidharnagar dated 4.3.2022 passed in Special Case No.
120 of 2018, the appellant-accused has preferred the present appeal.
3. The facts leading to the present appeal in nutshell are as under:
That the appellant herein was tried earlier for the offences punishable under
Sections 148, 149, 448, 364 & 506 of the Indian Penal Code (IPC) in FIR No. 61/2002
dated 26.09.2002 of Keshpur Police Station. The appellant came to be acquitted by the
learned Sessions Court vide judgment and order of acquittal dated 21.05.2010. That
thereafter on 6.6.2011, after a period of nine years from the date of registration of the first
FIR and one year from the date of acquittal, a second FIR came to be lodged against the
appellant and others alleging inter alia that the appellant and other co-accused had caused
the death of Ajay Acharya, i.e., father of the first informant, the same person that they had
alleged to have kidnapped and were acquitted of.
3.1 It appears that the second FIR was registered on the basis of the discovery of the
skeleton and identification of the clothes and teeth of the skeleton, by the son of the
deceased, 11 years after the alleged incident.
3.2 The appellant-accused approached the High Court seeking quashing of the entire
criminal proceedings emanating out of the second FIR vide order dated 29.04.2016. While
dismissing the said proceedings, the High Court granted liberty to take up all the points of
law at the time of framing of charge. While dismissing the special leave petitions, this Court
granted liberty to the accused – appellant to avail the remedy at the stage of framing of
the charge. Accordingly, a discharge application under Section 227 r/w Section 300(1)
Cr.P.C. was filed by the appellant before the learned trial Court. The learned trial Court
dismissed the said application by observing that such an objection can be raised at the
stage of framing of charge and not discharge. The order passed by the learned trial Court
has been confirmed by the High Court, by the impugned judgment and order. Hence, the
present appeal.
4. It is vehemently submitted by Shri Siddhartha Dave, learned senior counsel
appearing on behalf of the appellant – accused that the courts below have erred in not
considering the application for discharge filed by the appellant at the stage of discharge.
It is submitted that the stage of discharge under Section 227 Cr.P.C. is a stage prior to
charge and it is at this stage alone that the court can consider an application under Section
300 Cr.P.C. It is submitted that once the court rejects the discharge application, it would
proceed to framing of charge under Section 228 Cr.P.C. and the only question before it
would be as to the nature of the offence, and not that the appellant has not committed an
offence, or that he cannot be tried on account of the bar under Section 300 Cr.P.C.
4.1 It is further submitted that the courts below have failed to appreciate that the present
proceedings arise from the discharge proceedings and that the stage of discharge under
Section 227 Cr.P.C. precedes the stage of framing of charge under Section 228 Cr.P.C.
It is submitted that as observed and held by this Court in the case of Ratilal Bhanji
Mithani v. State of Maharashtra, (1979) 2 SCC 179, once the charges are framed, the
accused is disentitled from praying for discharge.
4.2 It is further submitted that it is true that the judgment of acquittal dated 21.05.2010
has been challenged by the State before the High Court, but the same has not been
admitted by the High Court.
4.3 It is further submitted that the appellant has already been acquitted of the offence
of kidnapping. On the basis of the same facts, the appellant is now being sought to be
prosecuted for the offence under Section 302 IPC, without invoking Section 346 IPC, only
to circumvent the bar under Section 300(1) Cr.P.C. It is submitted that the bar under
Section 300(1) Cr.P.C. also applies to prosecution for same facts for any other offence for
which a different charge from the one made against the accused might have been made
under sub-section (1) of Section 221, or for which the accused might have been convicted
under sub-section (2) thereof.
4.4 It is further submitted that in the case of State v. Nalini, (1999) 5 SCC 253, this
Court while discussing the principle of autrefois convict and autrefois acquit held that
Section 300 Cr.P.C. has widened the protective wings by debarring a second trial against
the same accused on the same facts even for a different offence.
4.5 Making above submissions and relying upon the aforesaid decisions, it is prayed to
allow the present appeal and discharge the appellant from the subsequent second FIR
No. 36/2011, in terms of Section 300(1) Cr.P.C.
5. While opposing the present appeal, Shri Sunil Fernandes, learned counsel
appearing on behalf of the respondent – State has vehemently submitted that as such the
order of acquittal in relation to first FIR is the subject matter of appeal before the High
Court. It is submitted that even otherwise in the first FIR the appellant and other co-
accused were tried for the offences under Sections 148, 149, 448, 364 & 506 IPC in FIR
No. 61/2002. It is submitted that at the relevant time, the dead body of the deceased was
not found. It is submitted that the appellant and other coaccused were tried and as such
acquitted for the offence of kidnapping etc. and not for the offence under Section 302 IPC,
as now to be tried pursuant to the subsequent FIR, which was lodged after the discovery
of the skeleton and identification of the clothes and teeth of the skeleton. It is submitted
that therefore, as such, Section 300 Cr.P.C. shall not be attracted at all.
5.1 It is further submitted that earlier the application submitted by the appellant under
Section 482 Cr.P.C. to quash the subsequent criminal proceedings emanating out of the
second FIR came to be dismissed by the High Court and the appellant was relegated to
avail the remedy at the stage of framing of the charge. It is submitted that the very
plea/defence under Section 300 Cr.P.C. was pressed into service but the High Court
refused to quash the criminal proceedings arising of the subsequent second FIR. It is
submitted that thereafter when the accused had filed the discharge application, the
learned trial Court rejected the said application by observing that the appellant-accused is
entitled to raise all the points as mentioned in the petition under Section 300(1) Cr.P.C. at
the time of framing of charge. It is submitted that as such the discharge application under
Section 227 Cr.P.C. is yet to be considered by the learned trial Court.
5.2 Making the above submissions, it is prayed to dismiss the present appeal.
6. We have heard learned counsel for the respective parties at length.
At the outset, it is required to be noted that pursuant to the liberty reserved by the
High Court while dismissing the petition under Section 482 Cr.P.C., the appellant accused
filed an application for discharge under Section 227 r/w Section 300(1) Cr.P.C. Out of the
said application, application under Section 300(1) Cr.P.C. has been dismissed by the
learned trial Court by observing that the appellantaccused shall be entitled to raise all the
points including the applicability of Section 300(1) Cr.P.C. at the time of hearing on framing
of charge. The application under Section 227 Cr.P.C. filed by the accused is yet to be
considered by the learned trial Court. At this stage, Section 227 Cr.P.C. is required to be
referred to, which reads as under:
“227. Discharge – If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reasons for so doing.”
7. On a fair reading of Section 227 Cr.P.C, if, upon consideration of the record of the
case and the documents submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge the accused and record
his reasons for doing so. As per Section 228 Cr.P.C. only thereafter and if, after such
consideration and hearing as aforesaid, the Judge is of the opinion that there is ground
for presuming that the accused has committed an offence, the trial Court shall frame the
charge. Therefore, as rightly submitted by Shri Siddhartha Dave, learned senior counsel
appearing on behalf of the appellant-accused that the stage of discharge under Section
227 Cr.P.C. is a stage prior to framing of the charge (under Section 228 Cr.P.C.) and it is
at that stage alone that the court can consider the application under Section 300 Cr.P.C.
Once the court rejects the discharge application, it would proceed to framing of charge
8. Under the circumstances, the learned trial Court has erred in not considering the
application under Section 300(1) Cr.P.C. at the time of framing of charge and/or prior to
framing of the charge. As observed hereinabove, the trial Court had observed that the
appellant-accused shall be entitled to raise all points as mentioned in his application under
Section 300(1) Cr.P.C. at the time of hearing on framing of charge. However, as observed
hereinabove, such exercise was required to be done at a stage prior to framing of charge
and if ultimately the court comes to the conclusion overruling the objection of Section
300(1) Cr.P.C. and on facts satisfies then it may frame the charge as provided under
Section 228 Cr.P.C. The High Court has not at all appreciated and/or considered the
aforesaid aspect. Therefore, the matter is required to be remanded to the learned trial
Court to consider the plea of the accused on applicability of Section 300(1) Cr.P.C. at the
stage of discharge under Section 227 Cr.P.C., which is a stage prior to framing of the
charge under Section 228 Cr.P.C.
9. Now so far as the prayer on behalf of the appellant to discharge the accused in view
of the bar under Section 300(1) Cr.P.C. is concerned, the same may not be granted at this
stage in view of the earlier order passed by the High Court dismissing the petition under
Section 482 Cr.P.C. to quash the criminal proceedings which were sought to be quashed
on the very ground and the accused was relegated to avail remedy at the time of
discharge. It is to be noted that the earlier order passed by the High Court had attained
finality and even thereafter the appellant-accused had filed the discharge application
under Section 227 r/w Section 300(1) Cr.P.C.
10. In view of the above and for the reasons stated above, the impugned judgment and
order passed by the High Court is hereby quashed and set aside. The matter is remitted
to the learned trial Court to consider the application under Section 300(1) Cr.P.C. filed by
the appellant – accused along with the application for discharge under Section 227
Cr.P.C., which is a stage prior to framing of the charge and thereafter to pass appropriate
orders on framing of the charge under Section 228 Cr.P.C., in case the objection/defence
of the accused under Section 300(1) is overruled and the trial Court is satisfied that there
is sufficient grounds for framing of charge against the accused. The aforesaid exercise
shall be completed within a period of six weeks from the date of receipt of the present
order. Needless to say, that the learned trial Court shall decide the said application in
accordance with law and on its own merits, without being influenced by any of the
observations made by the High Court in the impugned order or by this Court in the present
11. The present appeal stands disposed of with the aforesaid observations.
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The Supreme Court observed that the accused's plea on applicability of Section 300 CrPC has to be considered at the stage of discharge under Section 227 CrPC.
In this case, the accused filed a discharge application under Section 227 r/w Section 300(1) Cr.P.C. before the Trial Court. He contended that he had already been acquitted of the offence of kidnapping and on the basis of the same facts, he is now being sought to be prosecuted for the offence of murder. The same was dismissed on the ground that such an objection can be raised at the stage of framing of charge and not discharge. The Calcutta High Court upheld this order.
In appeal, the accused-appellant contended that the stage of discharge under Section 227 Cr.P.C. is a stage prior to charge and it is at this stage alone that the court can consider an application under Section 300 Cr.P.C. Once the court rejects the discharge application, it would proceed to framing of charge under Section 228 Cr.P.C. and the only question before it would be as to the nature of the offence, and not that the appellant has not committed an offence, or that he cannot be tried on account of the bar under Section 300 Cr.P.C, it was contended.
Agreeing with this contention, the Apex Court bench of Justices CT Ravikumar observed:
"Such exercise was required to be done at a stage prior to framing of charge and if ultimately the court comes to the conclusion overruling the objection of Section 300(1) Cr.P.C. and on facts satisfies then it may frame the charge as provided under Section 228 Cr.P.C. The High Court has not at all appreciated and/or considered the aforesaid aspect."
Allowing the appeal, the bench directed the Trial Court to consider the plea of the accused on applicability of Section 300(1) Cr.P.C. at the stage of discharge under Section 227 Cr.P.C., which is a stage prior to framing of the charge under Section 228 Cr.P.C.
Case details
Chandi Puliya vs State of West Bengal | (SC) 1019 | SLP(Criminal) 9897 of 2022 | 12 December 2022 | Justices MR Shah and CT Ravikumar
Headnotes
Code of Criminal Procedure, 1973 ; Sections 227,228, 300 - - It is at the stage of discharge that the court can consider the application under Section 300 Cr.P.C - Once the court rejects the discharge application, it would proceed to framing of charge under Section 228 Cr.P.C. (Para 7-8)
Code of Criminal Procedure, 1973 ; Sections 227,228 - The stage of discharge under Section 227 Cr.P.C. is a stage prior to framing of the charge (under Section 228 Cr.P.C.) - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. As per Section 228 Cr.P.C. only thereafter and if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, the trial Court shall frame the charge. (Para 7)
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ivil Appeal Nos. 850 of 1973 etc.
From the Judgment and Order dated 3.9.
1970 of the Allahabad High Court in Civil Miscellaneous (ITR) No. 461 of 1961.
With CIVIL APPEAL No. 941 of 1975.
From the Judgment and Order dated 5.5.
1972 of the Allahabad High Court in I.T. Reference No. 236 of 1969.
Raja Ram Agarwal and Mrs. Rani Chhabra for the Appellants.
B.B. Ahuja and Ms. A Subhashini for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
CA.
No. 850 of 1973 This appeal is by certificate and is directed against the judgment of the High Court of Allahabad.
Assessee and five of his brothers constituted a Hindu Joint Family.
The relevant assessment year is 1953 54 corresponding to the accounting period ending on 30th June, 1952.
The Joint Family which owned inter alia a sugar factory at Bijnore.
In 1930 there was partition in the family and the members of the erstwhile Joint Family constituted themselves into a partnership firm which took over the sugar factory and operated the same.
In the year ,1944, Sheo Prasad, one of the brothers who was a partner of the firm instituted a suit in the Lahore High Court for dissolution of the firm.
Partition of the country followed and after the parties shifted over to India a fresh suit was instituted at Bijnore for purposes of partition.
The properties were put in charge of a receiver appointed by the Court.
So far as the sugar factory is concerned, the arrangement was that at five yearly rest an auction was to be held confined to the partners and the highest bidder would be given lease to operate the factory for that period under the receiver.
On 16th July, 1948, Sheo Prasad trans ferred his 1/6th share to Banarsi Dass at a stated valuation of Rs.4,50,000.
On 3rd May, 1950, another brother, Devi Chand, leased out his 1/6th share to Banarsi Dass on an annual payment of Rs.50,000.
On 13th July, 1950, yet another brother, Kanshi Ram, similarly leased out his 1/6th share to Banarsi Dass for a similar sum.
In 1951, Kanshi Ram sued for cancellation of the lease.
On 6th April, 1954, the dispute was compromised and the lease was 104 terminated.
Kanshi Ram undertook to pay to Banarsi Dass at the rate of Rs. 16,000 for the first three years and at the rate of Rs. 10,000 for the subsequent two years.
Devi Chand 's 1/6th share was also returned on mutual arrangement and he agreed to pay a sum of Rs.39,000 and odd annually to Banarsi Dass for the lease period.
During the assessment proceedings, the nature of these receipts came to be debat ed the assessee maintained that these were in the nature of capital receipt lieu of the lease hold interest and the Income tax Officer maintained that those were revenue re ceipts.
In due course, the Tribunal ultimately upheld the view of the Revenue.
One more question that arose was the admissibility of a claim of expenditure being payment of interest on a loan taken for purchase of shares in the sugar factory.
The Income tax Officer had allowed the claim of Rs.75,211.
The Appellate Assistant Commissioner gave notice to the assessee and disallowed the same.
The Appellate Tribunal reversed the finding of the Appellate Assistant Commissioner in regard to the admissibility of the claim.
Thus the assessee as also the Revenue applied to the Tribunal to refer the case to the High Court.
As far as relevant, the following questions were referred for the opinion of the High Court under section 66(1) of the Act at the instance of the assessee.
Whether on the facts and in the circum stances of the case, the sums of Rs. 16,000 and Rs.39,262 received from Kanshi Ram and Devi Chand respectively were assessable as income of the assessee? 2.
Whether on the facts and in the circum stances of the case, depreciation is allowable on the 1/6th share in S.B. Sugar Mills, Bij nore which the assessee had acquired from Seth Sheo Prasad? So far as the first question is concerned, the High Court referred to the arrangement entered into by the parties as also the terms of compromise and referred to certain deci sions and came to the conclusion that the sum of Rs. 16,000 received as a part of the total sum of Rs.68,000 constituted an assessable receipt.
On the same reasoning, the High Court held that the amount of Rs.39,262 received from Devi Chand was also liable to tax.
So far as the other question is concerned, the High Court held: "The question, however, remains whether the assessee is 105 entitled to claim depreciation on the ground that it has acquired 1/6th share in the S.B. Sugar Mills.
It is to be noted that the asses see does not claim to be full owner of the property.
All that the assessee claims is 1/6th share in S.B. Sugar Mills." "The assessee claims allowance under clause (vi) of subsection (2) of section 10 of the Indian Income tax Act of 1922.
Clause (vi) is: 'In respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee . . " "In order to qualify for an allowance under clause (vi), the assessee has to make out that the building, machinery, plant or furniture is the property of the assessee.
Mr. Shanti Bhushan appearing for the assessee urged that clause (vi) is attracted even where an asses see owns a fractional share in the machinery.
On the other hand, Mr. Brij Lal Gupta appear ing for the Department urged that ownership of a fractional share in machinery does not attract clause (vi).
The point is not free from difficulty.
" The High Court ultimately came to hold: "In order to qualify for an allowance under clause (vi), the claimant must make out that the machinery is the property of the assessee.
That test is not satisfied by the present assessee.
The assessee does not claim to be the full owner of the machinery in question.
All that is claimed for the assessee is 1/6th share in the machinery.
Such a fractional share will not suffice for granting an allow ance for depreciation under section 10(2)(vi) of the Act.
" We have heard learned counsel for the assessee appellant at length.
He has referred to several authorities in support of the assessee 's stand of admissibility of the claim ' on both scores.
According to him, the proper test to be adopted should have been to find out whether the arrangement consti tuted an apparatus to earn profit.
whether the arrangement was one in course of business activity, and whether what was received constituted a part of the circulating capital or was a part of the fixed asset.
We have considered the sub missions of 106 the learned counsel for the appellant but are not in a position to accept the same.
There is hardly scope to doubt that the benefit of section 10(2)(vi) of the Act would be admissible only where the assessee is the owner of the property.
It too is not admissible in respect of a fraction al claim.
Similarly, we are of the view, in agreement with the High Court.
that the amounts which the assessee received under the compromise or by amicable arrangement was in the nature of profits to be received by the assessee for the interest held in the business and, therefore, constituted taxable income.
No other point was canvassed before us.
This appeal has to fail and is hereby dismissed.
Parties are directed to bear their own costs throughout.
A. No. 233 of 1976 This appeal between the parties is also by certificate granted by the Allahabad High Court and relates to the assessment year 1955 56 for the accounting period ending on 30th June, 1954.
Leave has been confined to two questions as would appear from the order granting the certificate, namely, as to whether one of the instalments received by the assessee out of the said amount of Rs.68,000, as referred to above, in respect of an earlier assessment year constituted a taxable receipt.
The second question relates to acquisition of the 1,6th share under a deed of exchange from Devi Chand under the exchange deed dated 16th July, 1948, which indicated that the valuation of that interest was shown to be Rs.4,50,000 and depreciation was claimed in regard to it.
Both the questions raised here are covered by our aforesaid judgment.
The appeal of the assessee has therefore to fail.
The appeal is accordingly dismissed.
Parties are directed to bear their own costs.
C.A. No. 1101 of 1975.
The relevant assessment year in this case is 1954 55 corresponding to the accounting period ending June 30, 1953.
Three questions survive for consideration: One relating to the receipt of Rs. 16,000 and Rs.42,957 in the same manner as already indicated, and the other depreciation in regard to the 1/6th share, said to have been valued at Rs.4,50,000.
Both the questions have to be answered against the assessee for the reasons already indicated.
In this case, there is a third question which is relevant, namely, whether in the facts and circumstances of the case.
the unabsorbed carried forward loss of Rs.78,084 was liable to be set off against the share of the rent received by the assessee from the Receiver.
Dealing with this question, the High Court ob served:.
107 "During the previous year relevant to the assessment year 1953 54, the assessee had suffered a loss in sugar business.
After setting off the loss against other heads of income there remained an unabsorbed loss of Rs.78,084.
In the assessment year in dispute the assessee claimed that the unabsorbed loss of the preceding year should be brought for ward and set off against its share in lease money received from the Receiver in respect of S.B. Sugar Mills.
This claim of the assessee has been disallowed and the question arises as to whether the assessee was entitled to carry forward and set off the loss as claimed by it.
" The High Court referred to section 24 of the Income tax Act of 1922 and indicated that two conditions had to be ful filled before the claim of set off of carried forward loss could be admitted, firstly, the income against which the loss has to be set off should be income from business and secondly, the business should be same in which the loss was suffered.
The High Court referred to certain decisions including the one of this Court in and ultimately negatived the claim of the assessee by saying that the question would not arise because the letting out of the sugar mill was not the business of the assessee.
In fact the receiver was appointed for dissolution of the firm and the main reason.
as found by the High Court.
for allowing the sugar factory to work was to dispose it of as a running mill so that proper price would be fetched.
Having heard learned counsel for the parties, we are satisfied that there is no merit in the assessee 's stand and the same has got to be dismissed.
The appeal is accordingly dismissed.
Parties are directed to bear their own costs throughout.
C.A. No. 941 of 1975 This appeal is by certificate from the judgment of the Allahabad High Court.
The assessee is the sugar mill which during the relevant assessment year 1960 61 corresponding to the accounting period ending 30th June, 1959, was in the hands of a Court Receiver.
The sugar mill was being assessed as an Association of Persons.
Banarsi Dass.
a partner, had 1/6th share therein.
He had acquired under a deed of ex change dated 16th July, 1948 1/6th share of Sheo Prasad in exchange of shares held by Banarsi Dass in Lord Krishna Sugar Mills valued at Rs.4,50.000.
In this assessment year, the receiver claimed that for the purposes of computing the depreciation allowance, the written down value of the busi ness assets be enhanced so as to reflect the sum of Rs.4,50,000 in place of 1/6th share representing the share of 108 Sheo Prasad.
Similar claim had been raised by Banarsi Dass in his own assessment.
The Income tax Officer rejected the claim and such rejection has been upheld throughout.
We have already turned down the claim of Banarsi Dass.
This claim has, therefore, to be rejected.
We may additionally point out that under the scheme of the Act, it is the assessee who alone is entitled to maintain such claim of depreciation and it would indeed be difficult, within the framework of the scheme contained in the statute, to maintain a separate value of the part of the asset to work out depreciation.
The book value as shown must be applicable to the entire assets of the firm including the 1/6th share which Sheo Prasad had given to Banarsi Dass.
The claim has rightly been rejected in the forums below including the High Court.
The appeal has no merit and is dismissed.
Parties will bear their own costs.
P.S.S. Appeals dis missed.
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'A ', a partner in a firm running a sugar factory, insti tuted a suit for its dissolution in 1948 and a Receiver was appointed by the Court.
The arrangement arrived at for the factory was that it would be leased out for a term of five years to the highest bidder from amongst the six partners.
In July, 1948, 'A ' transferred his 1/6th share to the appel lant for Rs.4,50,000.
The appellant had taken a loan against shares of that value held by him in another sugar mill for purchase of the share.
In May, 1950, another partner 'B ' leased out his 1/6th share to the appellant on an annual payment of Rs.50,000.
In July, 1950 yet another partner 'C ' leased out his 1/6th share to the appellant for a similar sum.
In 1951 'C ' sued for cancellation of the lease.
In April, 1954 the dispute was compromised and the lease termi nated. 'C ' undertook to pay the appellant at the rate of Rs. 16,000 for the first three years and at the rate of Rs. I0,000 for the subsequent two years. 'B 's 1/6th share was also returned on mutual arrangement and he agreed to pay the appellant a sum of Rs.39,000 and odd annually.
During the assessment proceedings for the year 1953 54 the nature of these receipts came to be considered.
The assessee appellant maintained that these were in the nature of capital receipts in lieu of the lease hold interest.
The assessee also claimed depreciation on the 1/6th share in the sugar mill that he had acquired from 'A '.
Similar questions also arose for the assessment years 1954 55 and 1955 56.
The assessee had suffered a loss in the sugar business in the assessment year 1953 54, a part of which remained unab sorbed, and claimed set off of that unabsorbed loss against the share of the rent received by him from the Receiver in the assessment year 1954 55.
Since the sugar mill was being assessed as an association of persons, for the assessment year 1960 61 102 the Receiver claimed that for the purpose of computing depreciation allowance, the written down value of the busi ness assets be enhanced so as to reflect the sum of Rs.4,50,000 in place of 16th share representing the share of 'A '.
The Revenue negatived the assessee 's contentions, which view was upheld by the High Court.
Dismissing the appeals by certificate, the Court, HELD: 1.
The amounts the assessee received under the compromise or by amicable arrangement from other partners were in the nature of profits to be received by the assessee for the interest held in the business and, therefore, con stituted taxable income.
[106B] 2.
The benefit of section 10(2)(vi) of the Income tax Act, 1922 would be admissible only where the assessee is the owner of the property.
It too is not admissible in respect of a fractional claim.
[106A] In the instant case, all that is claimed for the asses see is 1/6th share in the machinery.
Such a fractional share does not suffice for granting an allowance for depreciation under section 10(2)(vi) of the Act.
[105F] 3.
Two conditions had to be fulfilled under section 24 of the Incometax Act, 1922 before the claim for set off of carried forward loss could be admitted, firstly, the income against which the loss has to be set off should be income from business and secondly, the business should be same in which the loss was suffered.
[107C] In the instant case, the letting out of the sugar mill was not the business of the assessee.
The Receiver was appointed for dissolution of the firm and the main reason for allowing the sugar factory to work was to dispose it of as a running mill so that proper price could be fetched.
[107DE] 4.
Under the scheme of 1922 Act, it is the assessee who alone is entitled to maintain claim of depreciation.
Within the framework of that scheme it is difficult to maintain separate value of a part of the asset to work out deprecia tion.
The book value, as shown must in the instant case, therefore, be applicable to the entire assets of the firm including the 1/6th share which 'A ' had given to the appel lant.
The claim of the Receiver for depreciation cannot, therefore, be sustained.
[108B] 103
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vil Appeals Nos.
596 597 (NL) of 1986.
From the Judgment and Order dated 19.12.1985 of the Madras High Court in W.A. No. 1235/83 & W.A. No. 72 of 1984.
15 M.K. Ramamurthi, K.S. Jankiraman and Jitender Sharma for the Appellant.
T.S. Gopalan, P.N. Ramalingam and A.T.M. Sampath (NP) for the Respondents.
The Judgment of Court was delivered by RANGANATH MISRA, J. These are two ap.
peals by special leave at the instance of the Union representing the workmen and challenge is to the reversing decision of the Division Bench of the High Court in two writ appeals one filed by the employer Company and the other by the workmen through their union.
The State Government of Tamil Nadu by order dated 11.5.1981 made a reference under section 10(1)(d) of the Indus trial Disputes Act, 1947, (hereafter 'Act ' for short) to the Industrial Tribunal of the following disputes: "Whether the non employment of the following workers is justified; if not, to what relief are they entitled? To compute the relief, if any awarded in terms of money, if it could be so computed.
" A list of 186 workmen was appended to the reference.
The Union itself had come into existence on 1st of October, 1980.
It had written to the Company on 14.10.1980 that despite several years of service rendered by casual employ ees they were not being confirmed and were deprived of benefit and facilities applicable to permanent workmen.
Before the Tribunal the employer and the workmen filed their respective statements.
On 25.11.1981, on behalf of the workmen an amendment was sought which the Tribunal allowed.
The Company challenged the amendment by filing a writ peti tion before the High Court but the High Court was of the view that the propriety of the amendment could be assailed, if necessary, while challenging the award itself passed in due course.
The Tribunal held that 181 casual employees should be re employed with full back wages and 50 other casual employees should also be re employed but without back wages.
This direction was given on the ground that the requirement of section 25F of the Act had not been satisfied before termination which amounted to retrenchment.
16 The Company assailed the award by filing a writ petition before the High Court.
A learned Single Judge held that the relief of reinstatement with back wages should have been confined to 131 casual employees as they alone had worked for 240 days and set aside the award in respect of 50 others on the ground that they had not completed 240 days of serv ice.
Two writ appeals were filed before the Division Bench of the High Court Writ Appeal No. 1235 of 1983 by the Company challenging the affirming part of the award and Writ Appeal No. 72 of 1984 by the Union of the workmen negativing relief to fifty workmen.
The Division Bench went into the matter at great length.
It found that until the amendment had been made the workmen had a different claim from what was ultimately pressed before the Tribunal.
The Division Bench further found that there was great variation in the number of workmen for whom relief was claimed.
It took note of the fact that the Compa ny 's counter statement was filed on 1st of August, 1981, and till that date, the respective stands of the Union and the Company were clearly different.
The case of the Union until then was that there was non employment of employees on and from 13.10.1980 inasmuch as work to the casual employees was refused on that date; the Company 's case was that on 13.10.1980, 130 casual employees out of the list attached to the reference had actually worked and most of them had also worked on 14th and 15th of October, 1980.
On the 25th of November, 198 1, and amendment of the original claim state ment was sought by saying: "There were certain omissions and clerical cum typographical mistakes with regard to the narration of events and circum stances leading to the raising of dispute relating to the non employment of 186 workmen mentioned in the Annexure of the terms of reference and covered by this dispute.
" The amended statement proceeded to state: "On 15th October, 1980, the management told the workers who had worked on that day that their services were terminated and would not be permitted to work from 16th October, 1980.
A number of these workers were prevented entry at the gate on 16.10.1980.
The Union had decided to raise a dispute in respect of all these cases along with the earlier cases of non employment also.
" 17 The Division Bench found that an entirely new case was thus sought to be introduced changing the case of non em ployment on and from 13.10.1980, to non employment in the months of July, August, September and October, 1980, and a specific case of non employment on and from 16.10.1980.
After discussing at great length the oral and documentary evidence and the submissions advanced in the appeals the Division Bench summarised the position thus: "This whole litigation gives us an impression that though there may be a legitimate grievance of non confirmation of casual workers who have put in long terms of employment, the union seems to be wholly responsible for the situation in which the casual workers in dispute have found themselves in, a blatantly false case of non employment and termination of 141 persons was put up.
It was only at later stages that the union found that such a case cannot be successfully proved and indeed was false to the knowledge of the union and a case of termination on 16.10.
1980 was sought to be introduced by amending only a part of the claim statement.
As a result of this amendment, an inconsistency crept in the claim statement itself.
It is rather unfortunate that the Tribunal, by a very superficial approach, merely accepted the evidence that 131 persons were terminated when the evidence, as indicated above, not only runs counter to the initial statement, but is wholly insufficient and inadequate to prove that there was termination on the part of the company.
Merely telling a casual worker that there is no work is consistent with the status of casual workers and the compelling circumstances of the removal of the cards or a positive statement that no work would be given at all to the casual workers, is lacking in the instant case.
In our view, the award of the Tribunal is clearly vitiated because the Tribunal has not even considered the inconsistency in the stand taken by the union and the evidence has not been considered at all by the Tribunal.
We are, therefore, con strained in this case to take the view that it is not proved that the company terminated the employment of any of the employees who were casual workers, and the finding to the contra recorded by the Tribunal and confirmed by the learned Single Judge must be set aside." Thereafter the Division Bench examined the tenability of the 18 stand of the Union in its appeal and came to hold that the plea of retrenchment had not been established.
Thus, the appeal by the Company was allowed and the appeal of the workmen was dismissed.
That is how two appeals have been brought before this Court out of one and the same award.
We have heard counsel for the parties.
Written submis sions have also been filed in support of their respective stands.
We are inclined to take the view that the Division Bench has adopted too strict an approach in dealing with the matter.
It is true that the stand taken by the Union that work had not been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two follow ing days.
The Union had mixed up its claim of confirmation with stoppage of work leading to retrenchment.
The Union obviously realised its mistake when the Company filed its counter statement making a definite assertion that bulk of the workmen had worked on 13th, 14th and 15th of October, 1980.
The Tribunal did examine the question of confirmation on the basis of days of work put in by the workmen.
It came to find that 131 persons out of the list of 186 appended to the reference had as a fact worked for 240 days.
The number of 186 was reduced to 181 on account of duplication or death.
The remaining 50, according to the Tribunal, had not completed 240 days of work and were, therefore, not entitled to confirmation.
We are of the view that in the facts and circumstances appearing on the record it was not appropriate for the Division Bench to dismiss the claim of the workmen altogether.
While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the mate rial on the record and decide as to which part of the claim was tenable.
The finding of the Tribunal that 131 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribu nal.
Quantum of evidence or appreciation thereof for record ing findings of fact would not come within the purview of High Court 's extraordinary jurisdiction under article 226 of the Constitution.
The finding of fact that workmen out of the list appended to the reference had completed 240 days or work should, therefore, not have been disturbed by the Division Bench of the High Court.
The Tribunal had given the relief on the basis that the statutory requirement of section 25F of the Act had not been complied with.
As the 19 Division Bench found, and we find no justification to take a different view, the case of termination of employment had indeed not been made out.
On that footing a direction for reinstatement with full back wages ought not to have been given.
We are, therefore, inclined to mould the relief available to the workmen.
The claim of the confirmation of 131 workmen as found by the Tribunal and upheld by the learned Single Judge of the High Court shall be restored.
Relief of back wages in the facts and circumstances would, however, not be granted except to the extent it has been covered by two interim orders of this Court dated 14.12.1986 and 5.5. 1988.
Such payments as have been made shall not be recovered.
Parties are directed to bear their respective costs through out.
Appeals allowed.
|
Under the , the State Government referred to the Industrial Tribunal the question whether the nonemployment of certain workmen in the appel lant Company was justified, and if not what was the relief to which they were entitled.
The employer and the workmen filed their respective statements before the Tribunal and the workmen sought an amendment which the Tribunal allowed.
The employer challenged the amendment by way of a writ petition before the High Court.
The High Court took the view that the amendment could be assailed while challenging the award itself.
The award was made and the employer assailed the same in a writ petition filed before the High Court.
The High Court confined the relief to 131 casual employees who have worked for more than 240 days and set aside the award in respect of 50 others since they did not complete 240 days of service.
Aggrieved, both the employer and the workmen filed appeals before the Division Bench.
The Division Bench found that until the amendment was made, the workmen had a different claim from what was ultimately pressed before the Tribunal, that there was great variation in the number of workmen for whom relief was claimed, and came to the conclusion that it was not proved that the employer terminated the services of any of the casual workers.
Thus, the appeal of the employer was allowed and that of the workmen dismissed.
Aggrieved, the workmen have filed these appeals by Special Leave.
14 Allowing the appeals in part, this Court, HELD: 1.
The stand taken by the Union that work had not been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two following days.
The Union had mixed up its claim of confirmation with stop page of work leading to retrenchment.
The Union obviously realised its mistake when the Company filed its Counter statement making a difinite assertion that bulk of the workmen had worked on 13th, 14th and 15th of October, 1980.
The Tribunal did examine the question of confirmation on the basis of days of work put in by the workmen, It found that 131 persons out of the 186 worked for 240 days.
The number of 186 was reduced to 181 on account of duplication or death.
The remaining 50, according to the Tribunal, had not completed 240 days of work and were, therefore, not entitled to confirmation.
[18C D] 2.
While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the material on record and decide as to which part of the claim was tenable.
The finding of the Tribunal that 13 1 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribunal.
The Tribunal rightly gave the relief on the basis that Section 25F of the industrial Disputes Act had not been complied with.
[18E H] 3.
The claim of confirmation of 131 workmen as found by the Tribunal and upheld by the Single Judge of the High Court shall be restored.
Relief of back wages in the facts and circumstances would, however, not be granted except to the extent it has been covered by two interim orders of this Court dated 14.2.1986 and 5.5.1988.
Such payments as have been made shall not be recovered.
[19B C] 4.
Quantum of evidence of appreciation thereof for recording findings of fact would not come within the purview of High Court 's extraordinary jurisdiction under article 226 of the Constitution.
|
iminal Appeal No '400 of 1993.
From the Judgment land order dated 3.6.
1992 of the Punjab and Haryana High Court in Criminal Revision No. 443 of 1990.
P. Chadambaram, Mukul Rohtagi, Ms. Bina Gupta and Ms. Monika Mohil for the Appellants.
N.N. Goswamy, Y.D. Mahajan and N.D. Garg for the Respondent.
The Judgments of the Court were delivered by K. RAMASWAMYJ: Special leave granted.
The appellant, accused No. 2 in p.
(CBI) No. 40/2, dated February 18, 1985, F.I.R. No. RC No. 2 to 4/1983 dated March 4,1983 and P.S. SPE/CBI/CTU (E) I/New Delhi, Dist.
Delhi and four other namely, V.P. Anand, Baldev Raj Sharma, Bansi La] and Ranjit KumarMarwah are accused in the said case.
It is the prosecution case that the accused hatched a conspiracy at Chandigarh to cheat Punjab National Bank for short 'PNB '.
In furtherance thereof V.P. Anand floated three New Link Enterprises and M/s. Moonlight Industries in the name of Baldev Raj Sharms, his employee and M/s. Guru Nanak Industries in the name of Bansi Lal, yet another employee.
He opened current accounts in their respective names in the P.N.B. at Chandigarh.
In furtherance of the conspiracy and in confabulation with V.P. Anand, the appellant, Ajay Aggarwal, a non resident Indian at Dubai who is running M/s. Sales International, Dubai, agreed to and got credit facility by way of Foreign Letters of Credit Nos.
4069 p, 4070 p and 4084 p, issued proforma invoices of the said concern and addresses to PNB through Guru Nanak Industries and New Link Enterprises.
Ranjit Marwah, the 5th accused, Manager of P.N.B., In charge, of foreign exchange department confabulated with the accused, issued Foreign Letter of Credit in violation of import policy.
The Bills of Lading were addressed to PNB at Chandigarh.
The cable confirmation of P.N.B. was sent to M/ s Sales International by P.N.B., Chandigarh for confirmation of discrepancy.
The appellant had confirmed correctness thereof in the name of V.P. Anand.
Placing reliance thereon authority letter was issued by P.N.B., Chandigarh and cables were sent subsequent thereto to remit the amounts to Emirates National Bank Ltd. through Irving Trust Company.
V.P. Anand was present on September 16, 1981 at Dubai and at his instance the Emirats National Bank, Dubai informed the 551 P.N.B., Chandigarh that the discrepancy in the document adeptable to V.P. Anand and claimed to have inspected the goods on board in vessel, M.V. Atefeh.
On receipt of the information from the Sales International, Dubai, full amount in US Dollars 4, 39,200 was credited against all the three Letters of Credit on discount basis.
During investigation it was found that Vessel M.V. Atefeh was a nonexistent one and three Foreicn Letters of Credit were fabricated on the basis of false and forged shipping documents submitted by the appellant, Ajay Aggarwal to the Emirates National Bank, Dubai.
Thus the P.N. B. was cheated of an amount of Rs. 40,30,329.
Accordingly charge sheet was laid against the appellant.
and others for offences punishable under sections 120B read with Sections 420 (Cheating), 468 (Forgery) and 471 using as genuine (Forged documents), I.P.C.
The Chief Judicial Magistrate, Chandigarh by his order dated January 11, 1990 discharged all, the accused of the offences on the ground that conspiracy and the acts done in furtherance thereof had taken place outside India and, therefore the sanction under section 188 Criminal Procedure Code, 1973 for short the 'Code ' is mandatory.
Since no such sanction was produced the prosecution is not maintainable.
On revision, the High Court of Punjab and Haryana in Criminal Revision No. 443 of 1990 by order dated June 3, 1992 held, that the conspiracy had taken place at Chandigarh.
The overt acts committed in pursuance of that conspiracy at Dubai constituted offences under sections 420, 467 and 471, I.P.C., are all triable at Chandigarh without previous sanction of the central Govt.
The order of discharge, therefore, was set aside and the appellant and other accused were directed to be present through their counsel in person in the Trial Court on July 17,1992 to enable the court to take further proceedings in accordance with law.
This appeal has been filed by the appellant alone under article 136 of the constitution.
Sri Chidambaram, learned Senior counsel contended that the appellant was not a privy to the conspiracy.
He was an N.I.R. businessman at Dubai.
He never visited Chandigarh.
Even assuming for the sake of argument that conspiracy had taken place and all act committed in furtherance thereof were also at Dubai.
The transaction through, bank is only bank to bank transaction.
Even assuming that some of the offences were committed in India since as per the prosecution case itself that part of the conspiracy and related offences were committed at Dubai, by operation of Section 188 read with the proviso thereto with a non obstanti clause, absence of sanction by the Central Govt.
knocks of the bottom of the jurisdiction of the courts in India to take cognisance of or to enquire into of try the accused.
He placed strong reliance on 1.
Fakhrulla khan and Ors.
vs Emperor AIR 1935 Mad. 326, In re M.L. Verghese AIR 1947 MAD.
352, kailash Sharma vs State [1973] Crl.
Law Journal 1021 and K. Satwant Singh vs State of Punjab ; Sri Goswami, the learned senior counsel for the respondents contended that the conspiracy to cheat.
PNB was hatched at Chandigarh.
All the accused committed 552 overt acts in furtherance.
All the accused committed overt acts in furtherance on the conspiracy at Chandigarh and, therefore, the sanction of the Central Govt.
is not necessary.
The High Court had rightly recorded those findings.
There is no need to obtain sanction under section 188 of the Code.
The diverse contentions give rise to the primary question whether the sanction of the Central Govt.
as required under proviso to section 188 of the Code is necessary.
Section 188 of the Code reads thus "Offence committed outside India when an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence asif it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except.
with the previous sanction of the Central Government".
Section 3, IPC prescribes punishment of offences committed beyond, but which by law may be tried with, India, It provided that any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.
Section 4 extends its territorial operation postulating that IPC shall apply to any offence committed by (1) any citizen of India in any place without any beyond India; (2) any person on any ship or aircraft registered in India wherever it may be.
Explanation in this section the word offence ' includes every act committed outside India which, if committed in India, would be punishable under this Code. 553 Illustration A, who is a citizen of India, commits a Murder in Uganda.
He can be tried and convicted of murder in any place in India in which he may be found.
The Code of Criminal Procedure extends to whole of India except the State of Jammu & Kashmir and except chapters 8, 10 and 11, the other provisions of the Code shall not apply to the State of Nagaland and to the tribal area.
However, the State Govt. has been empowered, by a notification, to apply all other provisions of the Code or any of them to the whole or part of the State of Nagaland and such other tribal areas, with supplemental, incidental or consequential modifications, as may be specified in the notification.
Therefore, the Code also has territorial operation.
The Code is to consolidate and amend the law relating to criminal procedure.
Section 188 was suitably amended pursuant to the recommendation made by the Law Commission.
Chapter VIII deals with jurisdiction of the courts in inquiries and trials.
Section 177 postulates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed but exceptions have been engrafted in subsequent sections in the Chapter.
Section 179 provides venue for trial or enquiry at the place where the act is done or consequences ensued.
So inquiry or trial may be had by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
Section 188 by fiction dealt offences conumitted by a citizen of India or a foreigner outside India or on high seas or elsewhere or on any ship or aircraft registered in India.
Such person was directed to be dealt with, in respect of such offences, as if be had committed at any place within India at which he may be found.
But the proviso thereto puts and embargo that notwithstanding anything in any of the preceding sections of this Chapter have been done such offences shall not be inquired into or tried in India except with the previous sanction of the Central Govt.
Judicial power of a State extends to the punishment of all offences against the municipal laws of the State by whomsoever committed within the territory.
It also has the power to punish all such offences wherever committed by its citizen.
The general principle of international law is that every person be it a citizen or foreigner who is found within a foreign State is subjected to, and is punishable by, its law.
Otherwise the criminal law could not be administered according to any civilised system of jurisprudence.
Sections 177 to 186 deal with the venue or the place of the enquiry or trial of crimes.
Section 177 reiterates the well established common law rule that the proper and ordinary situs for the trial of a crime is the area of jurisdiction in which the acts occurred and are alleged to constitute the crime.
But this rule is subject to several well recognised exceptions and some of those exceptions have been engrafted in subsequent sections in the chapter of the Code.
554 Therefore, the provisions in Chapter VIII are elastic and not peremptory.
In consequence there with Sections 218 to 223 of the code would also deal with exceptions engrafted in the Code.
Therefore, they do permit enquiry or trial of a particular offence along with other offences at a common trial in one court so that the court having jurisdiction to try an offence gets jurisdiction to try other offence committed or consequences thereof has ensued.
The procedure is hand maid to substantive justice, namely, to bring the offenders to justice to meet out punishment under IPC or special law as the case may be, in accordance with the procedure prescribed under the Code or special procedure under that Act constituting the offence.
The question is whether prior sanction of the Central Govt.
Is necessary for the offence of 'conspiracy under proviso to section 188 of the Code to take cognizance of an offence punishable under section 120 B etc.
I.P.C. or to proceed with trial.
In Chapter VA, conspiracy was brought on statute by the Amendment Act, 1913 (8 of 1913).
Section 120 A of the I.P.C. defines 'conspiracy ' to mean that when two or more persons agree to do, or cause to be done an ilegal act, or an act which is not illegal by illegal means such an agreement is designated as "criminal conspiracy".
No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof.
Section 120 B of the I.P.C. prescribes punishment for criminal conspiracy.
It is not necessary that each conspirator must know all the details or the scheme nor be a participant at every stage.
It is necessary that they should agree for design or object of the conspiracy.
Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected , and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.
It is immaterial whether this is found in the ultimate objects.
The common law definition of criminal conspiracy was stated first by Lord Denman in jones case that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy vs Reg and the House of Lords in unanimous decision reiterated in Quinn vs Leathem ; at 528) as under: A conspiracy consists not merely in the intention of two or more, but in the agreement.
of two or more to do ,in unlawful act, or to do a lawful act by unlawful means.
So long as such a design rests in intention only it is not indictable, When two agree to carry it into 555 effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable of for a criminal object or for the use of criminal means".
This Court in B. G. Barsay vs The State of Bombay [1962] 2 SCR at 229, held "The (list of the offence is an agreement to break the law.
The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done.
So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act.
It may comprise the commission of a number of acts.
Under section 43 of the Indian Penal Code, an act would be illegal if fit is an offence or if it is prohibited by law".
In Yashpal vs State of Punjab the rule was laid as follows "The very agreement, concert or league is the ingredient of the offence.
It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co participators in the main object of the conspiracy.
There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested.
There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators.
In achieving the goal several offences may be committed by some of the conspirators even unknown to the others.
The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over shooting by some of the conspirators".
In Mohammed Usman.
Mohammad Hussain Manivar & Anr.
vs State of Maharashtra ; , it was held that for an offence under section 120B IPC, the prosecution need not necessarily prove that the conspirators expressly 556 agreed to do or cause to be done the illegal act.
the agreement may be proved by necessary implication.
In Noor Mohammed Yusuf Momin vs State of Maharashtra ; , it was held that section 120 B IPC makes the criminal conspiracy as a substantive offence which offence postulates an agreement between two or more persons to do or cause to be done an act by illegal means.
If the offence itself is to commit an offence, no further steps are needed to be proved to carry the agreement into effect.
In R. K. Dalmia & Anr.
vs The Delhi Administration It 963] 1 SCR 253, it was further held that it is not necessary that each member of a conspiracy must know all the details of the conspiracy.
In Shivanarayan Laxminarayan & Ors.
State of Mahrashtra & Ors. , this court emphasized that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same.
The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.
The question then is whether conspiracy is continuing offence.
Conspiracy to commit crime it self is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.
Yet, in our considered view, the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive.
Being a continuing offence, if any acts or omissions which constitutes an offence, are done in India or outside its territory the conspirators continuing to be parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain sanction of the Central Govt.
all of them need not be present in India nor continue to remain in India.
In lennart Schussler & Anr.
vs Director of Enforcement & Anr. ; , a Constitution Bench of this Court was to consider the question of conspiracy in the setting of the facts, stated thus "A. 2 was the Managing Director of the Rayala Corporation Ltd. Which manufactures Halda Typewriters.
A. 1 was an Export Manager of ASSAB.
A. 1 and A.2 conspired that A.2 would purchase material on behalf of his Company from ASSAB instead of M/s Atvidaberos, which provided raw material.
A.2 was to over invoice the value of the goods by 40 per cent of true value and that he should be paid the difference of 40 per cent on account of the aforesaid over invoicing by crediting it to A.2 's personal account at Stockholm in a Swedish Bank and requested A. 1 to help him in opening the account in Swenska Handles Banken, Sweden and to have further 557 deposits to his personal account from ASSAB.
A. 1 agreed to act as requested by A.2 and A.2 made arrangements with ASSAB to intimate to A. 1 the various amounts credited to A.2 's account and asked A. 1 to keep a watch over the correctness of the account and ' to further intimate to him the account position from time to time through unofficial channels and whenever A. 1 come to India.
A. 1 agreed to comply with this request.
This agreement was entered into between the parties in the year 1963 at Stockholm and again in Madras in the year 1965.
The question was whether Sec.
120 B of the Indian Penal Code was attracted to these facts".
Per majority, Jaganmohan Reddy, J. held that the gist of the offence defined in section 120 A IPC, which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or legal act by illegal means, subject, however, to the proviso that where the agreement is not an agreement to commit an offence, the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement.
There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means.
in furtherance of the conspiracy, certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act.
The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established.
It was contended in that regard that several acts which constitute to make an offence under section 120 B may be split up in parts and the criminal liability of A. 1 must only be judged with regard to the part played by him.
He merely agreed to help A.2 to open an account in the Swedish Bank, having the amounts lying to the credit of A.2 with Atvidaberg to that account and to help A.2 by keeping a watch over the account.
Therefore, it does not amount to a criminal conspiracy.
While negating the argument, this court held thus: "It appears to us that this is not a justifiable contention, because what has to be seen is whether the agreement between A. 1 and A.2 is a conspiracy to do or continue to do something which is illegal and, if it is, it is immaterial whether the agreement to do any of the acts in furtherance of the commission of the offence do not strictly amount to an offence.
the entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve".
558 Thus, this court, though not in the context of jurisdictional issue, held that the agreement not illegal at its inception would become illegal by subsequent conduct and an agreement to do an illegal act or to do a legal act by illegal means, must be viewed as a whole and not in isolation.
It was also implied that the agreement shall continuing till the object is achieved.
The agreement does not get terminated by merely entering into an agreement but it continues to subsist till the object is either achieved or terminated or abandoned.
In Abdul Kader vs State AIR 1964 Bombay 133, a conspiracy was formed in South Africa by appellants to cheat persons by dishonestly inducing them to deliver money in the Indian currency by using forced documents and the acts of cheating were committed in India.
When the accused were charged with the offence of conspiracy, it was contended that the conspiracy was entered into and was completed in South Africa and, therefore, the Indian Courts had no jurisdiction to try the accused for the offence of conspiracy.
The Division Bench held that though the conspiracy was entered in a foreign country and was completed as soon as the agreement was made, yet it was treated to be a continuous offence and the persons continued to be parties to the conspiracy when they committed acts in India.
Accordingly, it was held that the Indian Courts had jurisdiction to try the offence of conspiracy.
In U.S. vs Kissal ; , Holmes, J. held that conspiracy is a continuous offence and stated "is a perversion of natural thought and of natural language to call such continuous co operation of a cinema to graphic series of distinct conspiracies rather than to call it a single one. a conspiracy is a partnership in criminal purposes.
That as such it may have continuation in time.
is shown by the rule that overt act by one partner may be the act of all without any new agreement specifically directed to that act".
In Ford vs U. section ; at 620 to 622, Tuft, C.J. held that conspiracy is a continuing offence.
In Director of public Prosecutions vs Door and Ors.
1973 Appeal Cases 807 (H.L.), the five respondents hatched a plan abroad, i.e. Belgium and Morocco and worked out the details to import cannabis into the United States via England, In pursuance thereof two vans with cannabis concealed in them were shipped from Morocco to Southampton; the other van was traced at Liverspool, from where the vans were to have been shipped to America and the cannabis in it was found.
They were charged among other offences with conspiracy to import dangerous drugs.
At the trial, the respondents contended that the Courts in England had no jurisdiction to try them on the count of conspiracy since the conspiracy had been entered into abroad.
While rejecting the contention, Lord Wilberforce held (at page 817) "The present case involves international elements the accused are 559 aliens and the conspiracy was initiated abroad but there can be no question here of any breach of any rules of international law if the) are prosecuted in this country.
Under the objective territorial principle ( use the terminology of the Harward Research in Inter national Law) or the principle of University (For the prevention of the trade in narcotics falls within this description)or both, the courts of this country have a clear right, if not a duty, to prosecute in accordance with our municipal law.
The position as it is under the international law it not, however, determinative of the question whether, unde r our municipal law, the acts committed amount to a crime.
That has to be decided on different principles.
If conspiracy to import drugs were a statutory offence, the question whether foreign conspiracies were included would be decided upon the terms of the statute.
Since it is (if at all) a common law offence, this question must be decided upon principle and authority In my opinion, the key to a decision for or against the offence charged can be found in an answer to the question why the common law treats certain actions as crimes.
And one answer must certainly be because the actions in question are a threat to the Queen 's peace or as we would now perhaps say, to society.
Judged by this test, there is every reason for, and none that I can see against, the prosecution.
Con spiracies are intended to be carried into effect, and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought is because criminal action organised and executed, in concert is more dangerous than an individual breach of law.
Why, then, restrain from prosecution where the relevant concert was, initially, formed outside the United Kingoom?.
The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant; the attack upon the laws of this country is identical wherever the conspirators happened to commit; the "conspiracy" is a complex formed indeed, but not separately completed, at the first meeting of the plotters".
Viscount Dilhorne at page 823 laid the rule that: "a conspiracy does not end with the making of the agreement.
It will continue so long as there are two or more parties to it intending to carry out the design.
It would be highly unreal to say that the conspiracy to carry out the Gunpower plot was completed when the conspirators met and agreed to the plot at Catesby".
561 in my view, be considered contrary to the rules of international comity for the forces of law and order in England to protect the Queen 's peace by arresting them and putting them in trial for conspiracy whether they are British subjects or foreigners and whether or not conspiracy is a crime under the law of the country in which the conspiracy was born".
At page 835 it was held that the respondents conspired together in England notwithstanding the fact that they were abroad when they entered into the agreement which was the essence of the conspiracy.
That agreement was and remained a continuing agreement and they continued to conspire until the offence they were conspiring to commit was in fact committed.
Accordingly, it was held that the conspiracy, though entered into abroad, was committed in England and the courts in England and jurisdiction.
The ratio emphasizes that acts done in furtherance of continuing conspiracy constitute part of the cause of action and performance of it gives jurisdiction for English Courts to try the accused.
In Trecy vs Director of Public Prosecutions 1971 Appeal Cases 537 at 563 to ,(H. L.).
the facts of the case were that the appellant therein posted in the Isle of Wright a letter written by him and addressed to Mrs. X in West Germany demanding money with menaces.
The letter was received by Mrs. X in West Germany.
The appellant was charged with black mail indictable section 21 of the Theft Act, 1968.
While denying the offence, it was contended that the courts in England were devoted of jurisdiction.
Over ruling the said objection, Lord Diplock at page 562 observed: "The State is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by determining by threat of punishment conducted by other persons which is calculated to hand to those interests.
Comity gives no right to a State to insist that any person may with immunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state.
It may be under no obligation in comity to punish those acts itself, but it has no ground from complaint in international law if the State in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts".
Prof. Williams, Glanville in his article "Venue and the Ambit of Criminal Law at 528 stated thus: 562 "Sometimes the problem of determining the place of the crime is assisted by the doctrine of the continuing crime.
Some crimes are regarded as being of a continuing nature, and they may accordingly be prosecuted in any jurisdiction in which they are partly committed the partial commission being, in the eye of the law, a total commission '.
In the context of conspiracy under the caption inchoate crimes" It was stated: "The general principle seems to be that jurisdiction over an inchoate crime appertains to the State that would have had jurisdiction had the crime been consummated".
Commenting upon the ratio laid down in Board of Trade vs Owen [1957] Appeal Cases 602, he stated at page 534 thus "The seems to follow owen as logical corollary that our courts will assume jurisdiction to punish a conspiracy entered into abroad to commit a crime here.
Although the general principle is that crime committed abroad do not become punishable here merely because their evil effects occur here, there may be an exception for inchoate crimes aimed against persons in this country.
Since conspiracy is the widest and vaguest of the inchoate crimes, it seems clearly that the rule for conspiracy must apply to more limited crimes of incitement and attempt also".
At page 535 he further stated that "the rule of inchoate crimes is therefore an exception from the general principle of territorial jurisdiction.
The crime is wholly committed in the State A, yet is justiciable also in State B".
At page 535 he elucidated that "certain exceptions are recognised or suggested".
Lord Tucker in own 's case (supra) illustrated that a conspiracy D 2 England to violate the laws of a foreign country might be justiciable here if the preferments the conspiracy charged would produce a public mischief within the State or injure a person here by causing him damage, abroad".
At page 536 be stated that "as another exception from the rule in Board of, Trade vs Owen (supra it seems from the earlier decision that a conspiracy entered into here will be punishable if the conspirators contem plates that the illegality may be performed either within British jurisdiction or abroad even though, in the event, the illegality is performed abroad".
His statement of law now receives acceptance by House of Lords in Doot 's case.
563 In Halsbury 's Law of England, third edition, vol.
10, page 327, para 602, while dealing with continuing offence it was stated as under: "A criminal enterprise may consist of continuing act which is done in more places than one or of a series of acts which are done in several places.
In such cases, though there is one criminal enterprise, there may be several crimes, and a crime is committed in each place where a complete criminal act is performed although the act may be only a part of the enterprise".
It was further elucidated in para 603 that: "What constitutes a complete criminal act is determined by the nature of the crime.
Thus, as regards continuing acts, in the case of sending by post or otherwise a libellous or threatening letter, or a letter to provoke a breach of the peace, a crime is committed, both where the letter is posted or otherwise sent, and also where it is received, and the venue may be laid in either place.
Archbold in Criminal Pleadings, Evidence and Practice, 42nd edition (1985) Chapter 23, in para 28 32 at p. 2281, Wright on Conspiracies and Agreements at pages 73 74, Smith on Crimes at page 239 and Russel on Crime, 12th edition, page 613 stated that conspiracy is a continuing offence and liable to prosecution at the place of making the agreement and also in the country where the acts are committed.
Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy.
If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement.
The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means.
Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into.
It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy.
Each act constitutes separate offence punishable, independent of the conspiracy.
The law had developed several or different models or technics to broach the scope of conspiracy.
One such model is that of a chain, where each party performs even without knowledge of other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy.
An illustration, of a single conspiracy, its parts bound together as links in a chain, is 564 the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the (,lobe.
In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics.
The smugglers knew that the middlemen must sell to retailers , and the retailers knew that the middlemen must buy of importers of someone or another.
Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers, and those at the other end knew that it had not begun with their settlers.
The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole.
It should also be considered as a spoke in the hub.
There is a rim to bind all the spokes to gather in a single conspiracy.
It is not material that a rim is found only when there is proof that each spoke was aware of one another 's existence but that all promoted in furtherance of some single illegal objective.
The traditional concept of single agreement can also accommodate the situation where a well defined group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the first instance.
Take for instance that three persons hatched a conspiracy in country 'A ' to kill 'D ' in country 'B ' with explosive substance.
As far as conspiracy is concerned, it is complete in country 'A ' one of them pursuant thereto carried the explosive substance and hands it over to third one in the country 'B ' who implants at a place where 'D ' frequents and got exploded with remote control. 'D ' may be killed or escape or may be diffused.
The conspiracy continues till it is executed in country 'B ' or frustrated.
Therefore, it is a continuing act and all are liable for conspiracy in country 'B ' though first two are liable to murder with aid of section 120 B and the last one is liable under section 302 or 307 IPC, as the case may be.
Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner.
In the comity of International Law, in these days, committing offences on international scale is a common feature.
The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefoes convict or acquit would extend to such offences.
The comity of nations are duty bound to apprehend the conspirators as soon as they set their feet on the country territorial limits and nip the offence in the bud.
A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts.
So long aits performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity.
A crime is complete as soon as the agreement is made, but it is not a thing of the moment.
It does not end with the making of the 565 agreement.
It will continue so long as there are two or more parties to it intending to carry into effect the design.
Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so.
The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa.
In K. Satwant Singh vs The State of Punjab ; , a Constitution Bench of this Court was to consider as to when section 188 of the Code would be applicable to a case.
The facts therein was that the appellant had cheated the Govt.
of Burma whose office was at Shimla punishable under section 420 IPC.
The accused contended that the part of the act was done at Kohlapur where payment was to be made and on that basis the court at Shimla had no jurisdiction to try the offence without prior sanction of the political agent.
Considering that question this court held that if the offence of cheating was committed outside British India, the sanction would be necessary but on facts it was held that: "It seems to us, on the facts established in this case, that no part of the offence of cheating was committed by the appellant outside British India.
His false representation to the Govt.
of Burma that money was due to him was at a place in British India which induced that govt.
to order payment of his claims.
In fact, he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore.
The delivery of the property of the Govt.
of Burma, namely, the money, was made at Lahore, a place in Brithsh India, an d we cannot regard, in the circumstances of the present case, the posting of the cheques at Kohlapur either as delivery of property to the appellant at Kohlapur or payment of his claims at Kohlapur.
The entire argument founded on the provisions of section 188 of the Code, therefore, fails.
Far from helping the appellant the ratio establishes that if an offence was committed in India the need to obtain sanction under section 188 is obviated.
In Purshottamdas Dalmia vs Stale of West Bengal ; , this court, when the appellant was charged with offences punishable under sections 120B, 466 and 477, the appellant contended that offence of conspiracy was entered into at Calcutta the offences of using the forged documents was committed at Madras.
Therefore, the court at Calcutta had no jurisdiction to try the offence under section 471 read with section 466, EPC, even though committed in pursuance of the conspiracy and in course of the same transaction.
This court held that the desirability of trying the offences of alit 566 he overt acts committed in pursuance of a conspiracy together is obvious and sections 177 and 239 of the Code leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction.
In LN.
Mukherjee vs The State of Madras ; , it was further held that the court having jurisdiction to try the offences committed in pursuance of the conspiracy, has also the jurisdiction to try the offence of criminal conspiracy, even though it was committed outside its territorial jurisdiction.
This view was further reiterated in R.K. Dalmia vs Delhi Administration ; at 273 and Banwari Lal Jhunjhunwala and Ors.
vs Union of India and Anr.
1963] supp.
2 SCR 338.
Therein it was held that the court trying an accused for offence of conspiracy is competent to try him for offences committed in pursuance of that conspiracy irrespective of the fact whether or not overt acts have been committed within its territorial jurisdiction.
The charges framed therein under section 409 read with sections 120B, 420, IPC and section 5(1) (D) read with section 5(2) of the Prevention of Corruption Act were upheld.
Thus we hold that sanction under section 188 is not a condition precedent to take cognizance of the offence.
If need be it could be obtained before trial begins.
Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellant 's case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh; and in consequence thereof other offences had been ensued.
Since the.
offences have been committed during the continuing course of transaction culminated in cheating P.N.B. at Chandigarh, the need to obtain sanction for various offences under proviso to section 188 is obviated.
Therefore, there is no need to obtain sanction from Central Govt.
The case may be different if the offences were committed out side India and are completed in themselves without conspiracy.
Perhaps that question may be different for which we express no opinion on the facts of this case.
The ratio in Fakhruila Khan has no application to the facts in this case.
Therein the accused were charged for offences under section 420, 419, 467 and 468 and the offences were committed in native State, Mysore.
As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction.
Equally in Verghese 's case the offences charged under section 409, IPC had also, been taken place outside British India.
Therefore, it was held that the sanction under s, 188 was necessary.
The ratio in Kailash Sharma 's case is not good at law.
The appeal is accordingly dismissed.
R.M. SAHAI J.
While agreeing with Brother Ramaswamy, J., I propose to add a few words.
Prosecution of the appellant under Section 120B read with Section 420 and 471 of the Indian Penal Code (in brief 'IPC ') was assailed for 567 absence of sanction under Section 188 of the Criminal Procedure Code (in brief 'Cr. P. C. ').
Two submissions were advanced, one that even though criminal conspiracy was itself an offence but if another offence was committed in pursuance of it outside India then sanction was necessary; second an offence is constituted of a number of ingredients and even if one of them was committed outside the country Section 188 of the Cr.
P.C. was attracted.
Language of the section is plain and simple.
It operates where an offence is committed by a citizen of India outside the country.
Requirements are, therefore, one commission of an offence; second by an Indian citizen; and third that it should have been committed outside the country.
Out of the three there is no dispute that the appellant is an Indian citizen.
But so far the other two are concerned the allegations in the complaint are that the conspiracy to forge and cheat the bank was hatched by the appellant and others in India.
Whether it was so or not, cannot be gone into at this stage.
What is the claim then? Two fold one the appellant was in Dubai at the relevant time when the offence is alleged to have been committed.
Second, since the bills of lading and exchange were prepared and were submitted to the Emirates National Bank at Dubai and the Payment too was received at Emirates National Bank in Dubai, the alleged offence of forgery and cheating were committed outside India.
Is that so? Can the offence of conspiracy or cheating or forgery on these allegations be said to have been committed outside the country? Substantive law of extra territory in respect of criminal offences is provided for by Section 4 of the IPC and the procedure to inquire and try it is contained the Section 188 Cr.
P.C. Effect of these sections is that an offence committed by an Indian citizen, outside the country is deemed to have been committed in India.
Proviso to Section 188 Cr.
P.C. however provides the safeguard for the NRI to guard against any unwarranted harassment by directing, "that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
" Since the proviso begins with a non obstinate clause its observance is mandatory.
But is would come into play only if the principal clause is applicable, namely, it is established that an offence as defined in clause 'n ' of Section 2 of the Cr.
P.C. has been committed and it has been committed outside the country.
What has to be examined at this stage is if the claim of the appellant that the offence under Section 120B read with Section 420 and Section 471 of the IPC were committed outside the country.
An offence is defined in the Cr.
P.C. to mean an 568 act or omission made punishable by any law for the time being in force.
None of the offences for which the appellant has been charged has residence as one of its ingredients.
The jurisdiction to inquire or try vests under Section 177 in the Court in whose local jurisdiction the offence is committed.
It is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction.
When two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy under Section 120A of the IPC.
The ingredients of the offence is agreement and not the residence.
meeting of minds of more than two persons is the primary requirement.
Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sitting in India to do an illegal act in India the offence of conspiracy came into being when agreement was reached between the two.
The two minds met when talks oral or in writing took place in India.
Therefore, the offence of conspiracy cannot be said to have been committed outside the country.
In Mobarik Ali Ahmed vs The State of Bombay. ; this court while dealing with the question of jurisdiction of the Courts to try an offence of cheating committed by a foreign national held that the offence of cheating took place only when representation was made by the accused sitting in Karachi to the complaints sitting in Bombay.
The argument founded on corporeal presence was rejected and it was observed: "What is, therefore, to be seen is whether there is any reason to think that a foreigner not corporeally present at the time of the commission of the commission of the offence does not fall within the range of persons punishable therefor under the Code.
It appears to us that the answer must be in the negative unless there is any recognised legal principle on which such exclusion can be founded or the language of the Code compels such a construction".
If a foreign national is amenable to jurisdiction under Section 179 of the Cr.
P.C. a NRI cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present.
Preparation of bill of lading at Dubai or payment at Dubai were not isolated acts.
They were part of chain activities between the appellant and his associates with whom he entered into agreement to cheat the bank at Chandigarh.
Any isolated act or omission committed at Dubai was insufficient to constitute an offence.
The illegal act of dishonestly inducing the bank at Chandigarh was committed not by preparation of bill at Dubai but its presentation in pursuance of agreement to cheat.
The submission thus founded was on residence or on preparation of bills of lading or encashment at Dubai are of no consequence.
569 Nor is there any merit in the submission that even part of the offence would attract Section 189 as the section operates when offence is committed outside India.
An offence is committed when all the ingredients are satisfied.
The section having used the word offence it cannot be understood as part of the offence.
Section 179 Cr.
P.C. empowers a court to try an offence either at a place where the offence is committed or the consequences ensue.
On the allegations in the complaint the act or omissions were committed in India.
In any case the consequence of conspiracy, cheating and forging having taken place at Chandigarh the offence was not committed outside the country therefore the provisions of Sec.
188 Cr.
P.C. were not attracted.
ORDER For reasons given by us in our concurring but separate orders the appeal fails and is dismissed.
Parties shall bear their own costs.
Appeal dismissed.
|
The prosecution case was that the appellant, a non resident Indian at Dubai, hatched a conspiracy along with four others to cheat the Bank at Chandigarh.
in furtherance of the conspiracy, the appellant got credit facility by way of Foreign Letters of Credit and issued proforma invoices of his concern and addressed to the Bank through the establishments of other accused.
The Manager of the Bank, another accused, in confabulation with 544 the appellant and other accused, being in charge of foreign exchange department, issued Foreign letter of Credit in violation of import policy.
The Bills of Lading were addressed to the Bank.
The cable confirmation of the Bank was sent to appellant 's concern at Dubai for confirmation of discrepancy.
The appellant confirmed correctness thereof.
Placing reliance thereon, authority letter was issued by the Bank and cables were sent subsequent thereto to remit the amount .
to the Dubai Bank through one Irving Trust Company, At the instance of accused Anand, The Dubai Bank informed the Bankat Chandigarh that the discrepancy in the document adaptable to accused Anand and claimed to have inspected the goods on board in the vessel.
On receipt of the information from the appellant 's concern at Dubai, full amount is US Dollars 4,39,200 was credited against all the three Letters of Credit on discount basis.
The investigation established that the vessel was a non existent one and three Foreign Letters of Credit were fabricated on the basis of false and forged shipping documents submitted by the appellant to the Dubai Bank.
Thus the Bank at Chandigarh was cheated of an amount of Rs. 40,30,329.
The accused were charge sheeted under section read with sections 420, 468, and 471, IPC.
The Trial Court discharged all the accused of the offenses on the ground that conspiracy and the acts done in furtherance thereof had taken place outside India and as no sanction under section 188, Code of Criminal Procedure 1973 was produced, the prosecution was not maintainable.
The High Court in revision held that the conspiracy took place at Chandigarh and the overt acts committed In pursuance of that conspiracy at Dubai constituted offences under sections 420,467 and 471 IPC., and they were triable at Chandigarh without previous sanction of the Central Govt.
The High Court setting aside the order of discharge of the trial Court, directed to continue further proceedings in accordance with law.
That order of the High Court was challenged under this appeal under Article 136 of the Constitution.
The appellant contended that he was not a privy to the conspiracy and the conspiracy did not take place at Chandigarh; and that even assuming that some of the offences were committed in India, by operation of section 188 read with the proviso thereto with a non obstanti clause, absence of sanction by the 545 Central Govt.
barred the jurisdiction of the Courts in India to take cognisance of or to enquire into or try the accused.
The respondents submitted that the conspiracy to cheat the Bank was hatched at Chandigarh; that all the accused committed over acts in furtherance of the conspiracy at Chandigarh and therefore, the sanction of the Central Govt.
was not necessary.
Dismissing the appeal, this Court, HELD: Per K. Ramaswarmy, J. 1.01.
Judicial power of a State extends to the punishment of all offences against the municipal laws of the State by whomsoever committed within the territory.
It also has the power to punish all such offences wherever committed by its citizen.
The general principle of international law is that every person be it a citizen or foreigner who is found within a foreign State is subjected to, and is punishable by, its law.
Otherwise the criminal law could not be administered according to any civilised system of jurisprudence.
(553F) 1.02.
Conspiracy may he considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner.
In the comity of International Law, in these days, commiting offences on international scale is a common feature.
The offence of conspiracy would be a useful weapon and there would exist no contact in municipal laws and the doctrine of autrefois convict or acquit would extend to such offences.
The comity of nations are duty bound to apprehend the conspirators as soon as they set their feet on the country territorial limits and nip the offence in the bud.
(564 F G) 2.01.
Section 120 A of the I.P.C. defines 'conspiracy ' to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means such an agreement is designated as criminal conspiracy".
No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof.
(557 C) 546 2.02.
Section 120 B of the I.P.C. prescribes punishment for criminal conspiracy.
It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every state.
It is necessary that they should agree for design or object of the conspiracy.
Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.
It is immaterial whether this is found in the ultimate objects.
(554 E) 2.03.
Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.
(556 D) 2.04.
The agreement does not come to an end with it .
making, but would endure till it is accomplished or abandoned or proved abortive.
Being a continuing offence, if any acts or omissions which constitute an offence are done in India or outside its territory the conspirators continuing to be parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain sanction of the Central Govt.
All of them need not he present in India nor continue to remain in India.
(556 E) 2.05.
An agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy.
If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement.
The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to de that illegal act or legal act by illegal means.
Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into.
It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy.
Each act constitutes separate offence punishable, independent of the conspiracy.
(563 F G) "Jones 'Case, 1832 B & A D 345; Mulcahy vs Reg., (1868) L.R. ; Quinn vs Leathem, ; at 528; B.G. Barsay.
vs The State of Bombay, ; Yashpal vs The State of Punjab, ; Mohammed Usman, Mohamned Hussain Manivar & Anr.v.
State of Maharashtra, [1981] 3SCR 68;Noor 547 Mohammad Yasuf Monin vs State of Maharashtra, ; ; R.K. Dalmia & Anr.
vs The Delhi Administration, ; ; Shivanarayan Laxminarayan & Ors.
vs State of Maharashtra & Ors.
and Lennari Schussler & Anr.
vs Director of Enforcement & Anr., 1197012SCR 760, referred to. 2.06.
A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of facts.
So long as it ; performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity A crime is complete as soon as the agreement is made, but it is not a thing of the moment It does not end with the making of the agreement.
It will continue so long as there are two or more parties to it intending to carry into effect the design.
Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so.
The conspiracy designed or agreed abroad will have the same effect as in India,.
when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa.
(564 H, 565 A) Abdul Kader vs State.
AIR 1964 Bombay 133; U.S. vs Kissal, ; ; Ford vs U.S., ; at 620 to 622; Director of Public Prosecutions vs Doot and Ors., (1973) Appeal Cases 807 (H.L); Treacy vs Director of Public Prosecutions, (1971) Appeal Cases 537 at 563 (H.L.) and Board of Trade vs Owen.
(1957) Appeal Cases 602, referred to.
Prof. Williams, Glanville: "Vanue and the Ambit of Criminal Law", at 528; Halsbury 's Law of England, third edition Vol.
page 327, Para 6O2; Archobold:Criminal pleadings.
Evidence and Practice 42nd edition, [1985] Chapter 23, In para 28 32 at page 2281; Writ: Conspiracies and Agreements, at pages 73 74; Smith: Crimes, at page 239 and Russel; Crime, 12th edition, page 613, referred to. 2.07.
Sanction under section 188 is not a condition precedent to take cognizance of the offence.
If need be it could he obtained before trial begins.
Conspiracy was initially hatcher at Chandigarh and though its elf is a completed offence, being continuing offence, even accepting appellant 's case that he was at Dubai and part of conspiracy and overt acts in furtherance 548 thereof had taken place at Dubai and partly at Chandigar and in consequence thereof other offences had been ensued.
Since the offences have been committed during the continuing course of transaction culminates in cheating P.N.B. at Chandigarh, the need to obtain sanction for various officer under proviso to section 188 is obviated.
Therefore, there is no need to obtain sanction from Central Govt.
The case may he different if the offences were committed out side India and are completed in themselves without conspiracy.
(566 D E) K. Satwant Singh vs The State of Punjab, ; ; In Re M. L Verghese, AIR 1947 Mad. 352; T. Fakhulla Khan and Ors.
vs Emperor, AIR 1935 Mad. 326; Kailash Sharma vs State, 1973 Crl.
law journal 1021, distinguished.
Purshottamdas Dalmia vs State of Bengal, ; ; L.N. Mukherjee vs The State of Madras, ; ; R.K. Dalmia vs Delhi Administration ; at 273; Banwari Lal Jhunjhunwala and Ors vs Union of India and Anr., [1963] Supp. 2 SCR 338, referred to.
Per R.M. Sahai, J. (Concurring) 1.1.
Language of the section 188, Code of Criminal Procedure is plain and simple.
It operates where an offence is committed by a citizen of India outside the country.
Requirements are, therefore, one commission of an offence; second by an Indian citizen; and third that it should have been committed outside the country.
(567 D) 1.2.
Substantive law of extra territory in respect of criminal offences is provided for by Section 4 of the IPC and the procedure to inquire and try it is contained in Section 1 88 Cr.
P.C. Effect of these sections is that an offence committed by an Indian citizen outside the country is deemed to have been committed in India.
(567 E) 1.3.
Since the proviso to Section 188, Cr.
P.C. begin .
with a non obstinate clause its observance is mandatory.
But it would come into play only if the principal clause is applicable, namely, it is established that an offence as defined in dause 'n 'of Section 2 of the Cr.
P.C. has been committed and it has been committed outside the country.
(567 G) 549 1.4.
What has to be examined at this stage is if the claim of the appellant that the offence under Section 120B read with Section 420 and Section 471 of the IPC were committed outside the country.
An offence is deemed in the Cr.
P.C. to mean an Act or omission made punishable by any law for the time being in force.
None of the offences for which the appellant has been charged has residence as one of its ingredients.
(567 H, 568 A) 1.5.
The jurisdiction to inquire or try vests under Section 177 in the Court in whose local jurisdiction the offence is committed.
It is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction.
When two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy under Section 120A of the IPC.
The ingredients of the offence is agreement and not the residence.
Meeting of minds of more than two persons is the primary requirement Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sifting in India to do an illegal act in India the offence of conspiracy came into being when agreement was reached between the two.
The two minds met when talks oral or in writing took place in India.
Therefore, the offence of conspiracy cannot be said to have been committed outside the country.
(568 B C) 1.6.
If a foreign national is amenable to jurisdiction under Section 179 of the Cr.
P.C. a NRI cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present (568 F) Mobarik Ali Ahmed vs The State of Bombay, ; , referred to.
An offence is committed when all the ingredients are satisfied.
The section having used the word 'offence ' it cannot be understood as part of the offence.
Section 179 Cr.
P.C. empowers a court to try an offence either at a place where the offence is committed or the consequences ensue.
On the allegations in the complaint the act or omissions were committed in India.
In any case the consequence of conspiracy, cheating and forging having taken place at Chandigarh the offence was not committed outside the country therefore the provisions of Sec.
188 Cr.
P.C. were not attracted.
(569 B)
|
Civil Appeal No. 2307 of 1969 (Appeal by Special leave from the Award dated the 1st April 1969 of the Addl.
Industrial Tribunal, Delhi in I. D. No. 83 of 1968) and Civil Appeals Nos.
1857 1859/70.
(Appeals by Special Leave from the Judgment and order dated the 17th November 1969 of the Addl.
Labour Court, Madras in claim Petition Nos.
627 and 629 of 1968).
M. K. Ramamurthi and Jitendra Sharma and Janardan Sharma, for the appellants in both the appeals.
371 section N. Andley, (Rameshwar Nath and B. R. Mehta in CAs 1857 A 59/70) for respondents in both the appeals.
The Judgment of the Court was delivered by UNTWALIA, J.
As the main question for determination in these appeals by special leave is common, they have been heard together and are being disposed of by this judgment.
Civil Appeal No. 2307 of 1969 The respondent company in this appeal has its Head office at Bombay.
It manufactures tyres at its Bombay factory and sells the tyres and other accessories in the markets throughout the country.
The company has a Distribution office at Nicholson Road, Delhi.
There was a strike in the Bombay factory from 3rd March, 1967 to 16th May, 1967 and again from 4th October, 1967.
As a result of the strike there was a short supply of tyres etc.
to the Distribution office.
In the Delhi office, there were 30 employees at the relevant time.
17 workmen out of 30 were laid off by the management as per their notice dated the 3rd February, 1968, which was to the following effect: "Management is unable to give employment to the following workmen due to much reduced production in the company 's factory resulting from strike in one of the factory departments.
These workmen are, therefore, laid off in accordance with law with effect from 5th February, 1968." The lay off of the 17 workmen whose names were mentioned in the notice was recalled by the management on the 22nd April, 1968.
The workmen were not given their wages or compensation for the period of lay off.
An industrial dispute was raised and referred by the Delhi Administration on the 17th April, 1968 even when the layoff was in operation.
The reference was in the following terms: "Whether the action of the management to 'lay off ' 17 workmen with effect from 5th Feb. 1968 is illegal and/or unjustified, and if so, to what relief are these workmen entitled? The Presiding officer of the Additional Industrial Tribunal, Delhi has held that the workmen are not entitled to any lay off compensation.
Hence this is an appeal by their Union.
We were informed at the Bar that some of the workmen out of the batch of 17 have settled their disputes with the management and their cases were not represented by the Union in this appeal.
Hence this judgment will not affect the compromise or the settlement arrived at between the management and some of the workmen.
The question which for our determination is whether the management had a right to lay off their workmen and whether the workmen are entitled to claim wages or compensation.
372 The simple dictionary meaning according to the Concise oxford Dictionary of the term 'lay off ' is "period during which a workman is temporarily discharged.
" The term 'lay off ' has been well known in the industrial arena.
Disputes were often raised in relation to the 'lay off ' of the workmen in various industries.
Sometime compensation was awarded for the period of lay off but many a time when the lay off was found to be justified workmen were not found entitled to any wages or compensation.
In Gaya Cotton & Jute Mills Ltd. vs Gaya Cotton & Jute Mills Labour Union(l) the standing order of the company provided that the company could under certain circumstances "stop any machine or machines or department or departments, wholly or partially for any period or periods without notice or without compensation in lieu of notice." In such a situation for the closure of the factory for a certain period, no claim for compensation was allowed by the Labour Appellate Tribunal of India.
We are aware of the distinction betwen a lay off and a closure.
But just to point out the history of the law we have referred to this case.
Then came an amendment in the hereinafter referred to as the Act by Act 43 of 1953.
In section 2 clause (kkk) was added to say: "lay off" (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break down of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched Explanation Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid off for that day within the meaning of this clause: Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid off only for one half of that day: Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day. '" (1) [1952] II Labour Law Journal, 37.
373 By the same Amending Act, Chapter VA was introduced in the Act to provide for lay off and retrenchment compensation.
Section 25A excluded the Industrial Establishment in which less than 50 workmen on an average per working day had been employed in the preceding calendar month from the application of Sections 25C to 25E. Section 25 C provides for the right of laid off workmen for compensation and broadly speaking compensation allowable is 50% of the total of the basic wages and dearness allowance that would have been payable 13 to the workman had he not been laid off.
It would be noticed that the sections dealing with the matters of lay off in Chapter VA are not applicable to certain types of Industrial Establishments.
The respondent is one such Establishment because it employed only 30 workmen at its Delhi office at the relevant time.
In such a situation the question beset with difficulty of solution is whether the laid off workmen were entitled to any compensation, if so, what '? We shall now read section 25 J.
It says: "(1) The provisions of this Chapter shall have effect not withstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employment (Standing orders) Act, 1946: Provided that where under the provisions of any other Act or Rules, orders or notifications issued thereunder or under any standing orders or under any award, contract of service or otherwise, a workman is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the workman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to layoff and retrenchment shall be determined in accordance with the provisions of this Chapter.
" The effect of the provisions aforesaid is that for the period of lay off in an Industrial Establishment to which the said provisions apply, compensation will have to be paid in accordance with section 25C.
But if a workman is entitled to benefits which are more favourable to him than those provided in the Act, he shall continue to be entitled to the more favourable benefits.
The rights and liabilities of employers and workmen in so far as it relate to lay off and retrenchment, except as provided in section 25J, have got to be determined in accordance with the provisions of Chapter VA.
The ticklish question which does not admit of an easy answer is as to the source of the power of management to lay off a workman.
The employer has a right to terminate the services of a workman.
Therefore, his power to retrench presents no difficulty as retrenchment means the termination by the employer of the service of a workman for any reason whatsoever as mentioned in clause (oo) of section 2 of the 374 Act.
But lay off means the failure, refusal or inability of employer on account of contingencies mentioned in clause (kkk) to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment.
It has been called a temporary discharge of the workman or a temporary suspension of his contract of service.
Strictly speaking, it is not so.
It is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment.
Mr. section N. Andley submitted with reference to the explanation and the provisions appended to clause (kkk) that the power to lay off a workman is inherent in the definition.
We do not find any words in the definition clause to indicate the conferment of any power on the employer to lay off a workman.
His failure or inability to give employment by itself militates against the theory of conferment of power.
The power to lay off for the failure or inability to give employment has to be searched somewhere else.
No section in the Act confers this power.
There are two small matters which present some difficulty in the solution of the problem.
In explanation (1) appended to sub section ( 2) of section 25B the words used are: "he has been laid off under an agreement or as permitted by standing order made under the Industrial Employment (Standing orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment.
" indicating that a workman can be laid off under the also.
But it is strange to find that no section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to lay off a workman.
Clause (ii) of section 25E says: "No compensation shall be paid to a workman who has been laid off If he does not present himself for work at the establishment at the appointed time during normal working hours at least once a day." This indicates that there is neither a temporary discharge of the work man nor a temporary suspension of his contract of service.
Under the general law of Master and Servants an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice.
Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in clause (kkk) of section 2 is not a temporary discharge of the work man.
Such a power, therefore, must be found out from the terms of contract of service or the Standing orders governing the establishment.
In the instant case the number of workmen being only 30, there were no Standing orders certified under the Industrial employment (Standing orders) Act, 1946.
Nor was there any term of contract of service conferring any such right of lay off.
In such a situation the conclusion seems to be inescapable that the workmen were laid off without any authority of law or the power in the management under the contract of service.
In Industrial Establishments where there is a power in the management to lay off a workman and to which the 375 provisions of Chapter VA apply, the question of payment of compensation will be governed and determined by the said provisions.
Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay off compensation.
This case, therefore, goes out of Chapter VA.
Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under section 10(l) of the Act, it is open to the Tribunal or the Court to award a lesser sum finding the justifiability of the lay off.
` In The Management of Hotel Imperial, New Delhi & others vs Hotel Workers ' Union(l) in a case of suspension of a workman it was said by Wanchoo, J. as he then was, delivering the judgment on behalf of the Court at page 482: "Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work.
he will have to pay wages during the so called period of suspension.
Where, however.
there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that ` the servant is not bound to render service and the master is not bound to pay.
" The same principle was reiterated in V. P. Gindroniya vs State of Madhya Pradesh & Ors.(2) We have referred to the suspension cases because in our opinion the principles governing the case of lay off are very akin to those applicable to a suspension case.
In Veiyra (M. A.) vs Fernandez (C. P.) and another(3) a Bench of the Bombay High Court opined that under the general law the employer was free to dispense with the services of a workman but under the he was under an obligation to lay him off; that being so, the action of lay off by the employer could not .
be questioned as being ultra vires.
We do not think that the view expressed by the Bomby High Court is correct.
There is an important decision of this Court in Workmen of Dewan Tea Estate and ors.
vs The Management(4) on which reliance was placed heavily by Mr. M. K. Ramamurti appearing for the appellant and also by Mr. Andley for the respondent.
One of the question for consideration was whether section 25C of the Act recognises the common law right of the management to declare a lay off for reasons other than those specified in the relevant clause of the Standing order.
While considering this question, Gajendragadkar, J. as he then was.
said at page 554: "The question which we are concerned with at this stage is whether it can be said that s.25C recognises a common law (1) ; (2) [1970] 3 S.C.R. 448.
(3) [1956] I Labour Law Journal, 547.
(4) []964] S S.C.R. 548.
376 right of the industrial employer to lay off his workmen.
This question must, in our opinion, be answered in the negative.
When the laying off of the workmen is referred to in section 25C, it is the laying off as defined by section 2 (kkk) and so, workmen who can claim the benefit of section 25C must be workmen who are laid off and laid off for reasons contemplated by section 2 (kkk); that is all that section 25C means.
Then follows a sentence which was pressed into service by the respondent.
It says: "If any case is not covered by the Standing orders, it will necessarily be governed by the provisions of the Act, and layoff would be permissible only where one or the other of the factors mentioned by section 2 (kkk) is present, and for such lay off compensation would be awarded under section 25C." In our opinion, in the context, the sentence aforesaid means that if the power of lay off is there in the Standing orders but the grounds of lay off are not covered by them, rather, are governed by the provisions of the Act, then lay off would be permissible only on one or the other of the factors mentioned in clause (kkk).
Subsequent discussions at pages 558 and 559 lend ample support to the appellant 's argument that there is no provision in the Act specifically providing that an employer would be entitled to lay off his workmen for the reasons prescribed by section 2 (kkk).
Mr. Andley placed strong reliance upon the decision of this Court in Sanjhi Jeevraj Ghewar Chand & Ors.
vs Secretary, Madras Chillies, Grains Kirana Merchants Workers ' Union & Anr.(l) The statute under consideration in this case was the and it was held that the Act was intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus of the persons to whom it should apply.
The Bonus Act was not to apply to certain Establishments.
Argument before the Court was that bonus was payable de hors the Act in such establishment also.
This argument was repe11ed and in that connection it was observed at page 381: "It will be noticed that though the confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus.
Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for ,.
investigation and settlement of disputes raised thereunder.
There was, therefore, no question of Parliament having to delete or modify item S in the Third Schedule to or any such provision in any corresponding Act or its having to exclude any right to bonus thereunder by any categorical exclusion in the present case." And finally it was held at page 385: "Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the (1) [1969] I S.C.C. 366.
377 object of the Act and its scheme, it is not possible to accept A the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through Industrial adjudication under the or other corresponding law.
" In a case of compensation for lay off the position is quite distinct and different.
If the term of contract of service or the statutory terms engrafted in the Standing orders do not give the power of lay off to the employer, the employer will be bound to pay compensation for the period of lay off which ordinarily and generally would be equal to the full wages of the concerned workmen.
If, however, the terms of r employment confer a right of lay off on the management, then, in the case of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein.
But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of the employment.
In Kanhaiya Lal Gupta vs Ajeet Kumar Dey and others(l) a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer has no right to lay off a workman without paying him wages.
A learned single Judge of the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co. Ltd. vs Additional District Judge, Rohtak and others.
(2) The majority view of the Bombay High Court in K. T. Rolling Mills Private Ltd. and another vs M. R. Meher and other(8) that it is not open to the Industrial Tribunal under the Act to award lay off compensation to workmen employed in an 'Industrial Establishment ' to which section 25 C does not apply, is not correct.
The source of the power of the employer to lay off workmen does not seem to have been canvassed or discussed by the Bombay High Court in the said judgment.
In the case of the Delhi office of the respondent the Tribunal has held that the lay off was justified.
It was open to the Tribunal to award a lesser amount of compensation than the full wages.
Instead of sending back the case to the Tribunal, we direct that 75% the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay off.
As we have said above this will not cover the case of those workmen who have settled or compromised their disputes with the management.
Civil Appeals 1857 1859 (NL) of 1970 In these appeals the facts are identical to those in the other appeal.
There were only 33 employees in the Madras office of the respondent company.
Certain workmen were laid off for identical reasons from the (1) [1967] II Labour Law Journal, 761.
(2) [1972] 1 Labour Law Journal, 284.
(3) A.I.R. 1963 Bombay, 146.
378 5th February, 1968.
The lay off was lifted on the 29th April, 1968.
The concerned workmen filed petitions under section 33C (2) of the Act for computation of their wages for the period of lay off.
Holding that the lay off was justified and valid the Presiding officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay off.
Hence these appeals.
In a reference under section 10 (1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance.
But no such power exists in the Labour Court under section 33C (2) of the Act.
only the money due has got to be quantified.
If the lay off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C (2) of the Act, while, in the reference some compensation could be allowed.
Similarly on the view expressed above that the respondent company had no power to lay off any workmen, there is no escape from the position that the entire sum payable to the laid off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay off.
For the reasons stated above all the appeals are allowed.
In Civil Appeal No. 2307/1969 in place of the order of the Tribunal, an order is made on the lines indicated above.
And in Civil Appeals 1857 to 1859/1970 the orders of the Labour Court are set aside and the cases of the appellants are remitted back to that Court for computation and quantification of the sums payable to the concerned workmen for the period of lay off.
There will be no order as to costs in any of the appeals.
S.R Appeals allowed: Orders in CA 2307/69 modified : CAs 1857 1859/70 remitted hock to the Tribunal.
|
The respondent company manufacturing tyres in Bombay, due to the general strike in its factory between the period 3rd March 1967 and 16th May 1967 and again from 4th October 1967 and due to the consequent short supply of tyres had to lay off 17 out of its 30 workmen in the Delhi distribution office and also some out of its 33 workmen in its Madras distribution office.
The workmen in the Delhi and Madras offices were called back to duty on 22nd April 1968 and 29th April 1968 respectively.
The workmen were not given their wages or compensation for the period of lay off.
An industrial dispute was raised and referred to the tribunal by the Delhi Administration even when the lay off was in operation.
The Presiding officer of the Additional Industrial Tribunal, Delhi held that the workmen were not entitled to any layoff compensation.
The workmen in Madras filed petitions under section 33C(2) of the for computation of their wages for the period of their lay off.
The Presiding officer of the Additional Labour Court, Madras, holding that the lay off was justified, dismissed their applications.
on appeal to this Court by special leave, ^ HELD: (I) The simple dictionary meaning according to the concise oxford Dictionary of the term "lay ofF ' is "period during which a workman is temporarily discharged".
Lay off means the failure, refusal or inability of employer on account of contingencies mentioned in cl.
(kkk) of section 2 of the , to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment.
It has been called a temporary discharge of the workmen or a temporary suspension of his contract of service.
Strictly speaking, it is not so.
It is merely a fact of temporary unemployment of the workman in the work of the lndustrial Establihment.
Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in cl.
(kkk) of section 2 is not a temporary discharge of the workman.
[372A, 374A, B, G] Gaya Cotton & Jute Mills Ltd. vs Gaya Cotton & lute Mills Labour Union [1952] II Labour Law Journal 37, referred to.
(2)(i) That the power to lay off a workman is inherent in the definition in cl.
(kkk) of section 2 is not correct, since no words in the definition clause to indicate the conferment of any power on the employer to lay off a workman can be found.
His failure or inability to give employment, by itself militates against the theory of conferment of power.
No section in Chapter VA in express language or by necessary implication confers any power, even on the management of the Industrial Establishment to which the relevant provisions are applicable, to lay off a workman.
There is no provision in the Act specifically providing that an employer would be entitled to lay off his workmen 370 for the reasons prescribed by section 2 (kkk).
Such a power, therefore, must be found out from the terms of contract of service or the Standing orders governing the Establishment.
[374 B G] (ii) In the instant case, the number of workmen being only 3, there being no Standing orders certified under the Industrial Employment (Standing orders) Act (Act 20 of 1946), 1946, and there being no contract of service conferring any such right of lay off, the inescapable conclusion is that the workmen were laid off without any authority of law or the power in the management under the contract of service.
[374 G H] The Management of Hotel Imperial New Delhi & others vs Hotel Workers Union ; and V. P. Gindroniya vs State of Madhya Pradesh & ors.
[1970] 3 S.C.R. 448, referred to.
Veiyra (MA ) Fernandez (CP.) and another [1956] 1 Labour Law Journal.
547, reversed.
Workmen of Dewan Tea Estate and ors.
vs The Management [19641 S S.C.R. 548, applied.
Sanghi Jeevaraj Ghewar Chand & ors vs Secretary Madras Challies Grains Kirana Merchants Workers Union and Anr. , distinguished.
(3) If the terms of a contract of service or the statutory terms engrafted in the Standing orders do not give the power to lay off to the employer, the employer would be bound to pay compensation for the period of lay off which ordinarily and general would be equal to the full wages of the concerned V workman.
If, however, the terms of employment confer a right of lay off on the management then in the case of an Industrial Establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein.
But compensation or no compensation will be payable in the case of an Industrial Establishment to which the provisions of Chapter VA do not apply and it will be so as per the terms of employment.
[377 B D] Kanhaiya Lal Gupta vs Ajeet Kumar Dey and others [1967] II Labour Law Journal.
761 and Steel and General Mills Co. Ltd v Additional District judge Rohtak and others [1972] 1 Labour Law Journal, 2847 approved.
K. T Rolling Mills Private Ltd. and another vs M R Meher and others A.I.R. 1963 Bombay 146.
reversed.
(4) In a reference under section 10(l) of the Act.
it is open to the tribunal or court to award compensation which may not be equal to the full amount of basic wages and dearness allowance.
But no such power exists in the Labour Court under section 33C(2) of the Act.
Only the money due has to be quantified.
If the lay off could be held to be in accordance with the terms of contract of service.
no compensation at all could be allowed under section 33C(2) of the Act, while in the reference some compensation could be allowed.
[378 B Cl [In the instant case as regards the workmen in the Delhi case.
the court held 75% of the basic wages and dearness allowance would be the adequate compensation for the lay off period.]
|
Civil Appeal No. 793 of 1966.
Appeal by special leave from the judgment and order dated August 21, 1964 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 353 of 1963.
M.N. Phadke, Naunit Lal and B.P. Singh, for the appellant.
D.D. Verma and Ganpat Rai, for respondent No. 1.
The Judgment of the Court was delivered by Shelat, J.
This appeal, by special leave, is directed against the order of the High Court of Bombay (Nagpur Bench) which set aside the orders of the Assistant Commissioner of Labour and the Industrial Court, Nagpur and remanded the case to the Assistant Commissioner.
The appellant firm conducts a number of bidi factories at various places in Vidharba including the one at Kamptee.
Its head office is also situate there.
The factory at Kamptee and the head office have always been treated as separate entities though owned by the same firm.
Consequently, the head office was registered under the Central Provinces & Berar Shops and Establishment Act, 1947 and the factory at Kamptee was registered under the Factories Act.
The factory has also its own standing orders certified under the Central Provinces & Berar Industrial Disputes Settlement Act, 1947.
Respondent 1 was originally employed in the factory at Kamptee.
Two or three years thereafter he was directed to work at the head office and worked therein for about six years prior to the impugned order of dismissal passed against him by the munim of the head office.
Aggrieved by the order he flied 274 an application under section 16 of the C.P. & Berar Industrial Disputes Settlement Act alleging that the said order was incompetent and illegal.
The appellant firm contended that at the material time Respondent 1 was employed as a clerk in the head office, that the head office was a separate entity, that the dismissal order had not been passed 'by the appellant firm as the owner of the said factory, that the firm, as such owner, was wrongly impleaded and that the application was misconceived.
The Assistant Commissioner dismissed the application holding that Respondent 1 at the material time was not the employee in the factory, but was employed in the firm 's head office.
He relied on the fact that the head office and the factory had separate rules, that Respondent 1 used to sign his attendance in the register of the head office, that he was being paid his salary by the head office, and lastly, that his name was not on the muster roll of the factory.
He also found that whereas the staff of the head office was governed by the C.P. & Berar Shops & Establishments Act, the factory was governed by the C.P. & Berar Industrial Disputes Settlement Act.
Against the dismissal of his ,application, Respondent 1 filed a revision application before the Industrial Court, Nagpur.
The Industrial dismissed the application holding that the only question raised before it was whether Respondent 1 was the employee of the head office and that that being purely a question of fact, he could not interfere with the finding of fact arrived at by the Assistant Commissioner.
Respondent 1 thereafter filed a writ petition in the High Court challenging the said orders.
The High Court held that it was possible in law for an employer to have various establishments where different kinds of work would be done, in which case an employee in one establishment would be liable to be transferred to another establishment.
But the High Court observed that unless it was established that the employment of Respondent 1 in the factory was legally terminated it could not be assumed, merely because he was directed to work in the head office, that his employment was changed and the head office was substituted as his employer in place of the said factory.
As the order passed by the Assistant Commissioner was not clear on this question, the High Court remanded the case for disposal according to law.
Mr. Phadke for the appellants, raised the following contentions against the High Court 's order: (1) that the High Court made out a new case for Respondent 1, in that Respondent 1 had never challenged the validity of the order of dismissal on the ground that there was no change of employment, and that therefore, the head office was incompetent to order his dismissal, (2) that the facts of the case justified the conclusion that Respondent 1 had ceased to be the employee of the factory, and (3) that in any event he must be held to have given an implied consent to 275 his being treated as the employee of the head office.
In support of these contentions he relied upon the fact that Respondent 1 had worked at the.
head office for the last six years without any protest, that his name was on the attendance register of the head office, that it was the head office which paid his salary, and lastly, that he worked in the head office under the direction and control of the munim of that office.
As to the first contention, it would not be correct to say that the High Court made out a new case for the first time for Respondent 1 which was not pleaded by him before the Assistant Commissioner.
In para 1 of his application he had expressly averred that about three years after his employment in the factory he had been ordered to work in the head office.
In reply to the application the appellants conceded that though Respondent 1 was first employed in the factory and had worked there for about three years, he had thereafter been transferred to and been working as a clerk in the head office.
There was, however, no averment in that reply that the contract of service of Respondent 1 with the said factory was at any time put an end to or that when he was directed to work in the head office a fresh contract of service was entered into.
between.
him and the head office.
The Assistant Commissioner in his said order held that the head office and the factory were two separate establishments registered under two different Acts, and, therefore, subject to different provisions of law.
He further held that since Respondent 1 was not actually working in the factory and his name did not figure in the factory 's muster roll and was not paid his wages by the factory, the applicant could not be said to be an employee of the said factory.
In his revision application before the Industrial Court, Respondent 1 made an express plea that when he was directed to work in the head office, he had received no notice from the factory that his services were terminated there or that he had henceforth become the employee of the head office.
It is clear from these pleadings that it was not for the first time in the High Court that Respondent 1 contended as to the incompetence of the head office to take disciplinary action against him and to pass the order of dismissal.
The first contention of Mr. Phadke, therefore, cannot be accepted.
As regards the second and the third contentions, there is no dispute that though the head office and the said factory belong to the same proprietors, they were always treated as two distinct entities registered under two different Acts, that Respondent 1 was employed first in the factory where he worked for 2 or 3 years and was thereafter ordered to work at the head office where admittedly he worked for about six years before the impugned order terminating his services was passed.
The question, therefore, which the Assistant Commissioner and the Industrial Court had to decide, in view of the pleadings of the parties, was whether 276 Respondent 1 had ceased to be the employee of the factory and was in the employment of the head office at the time when the impugned order was passed, or whether his services were simply lent to the head office and he continued all along to be the employee of the factory ? The general rule in respect of relationship of master and servant is that a subsisting contract of service with one master is a bar to service with any other master unless the contract otherwise provides or the master consents.
A contract of employment involving personal service is incapable of transfer.
Thus, where a businessman joins a partnership firm and takes his personal staff with him into the firm, his staff cannot be made the staff of the firm without the consent of the other partners.
Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd.(1).
In certain cases, however, it is.
possible to say that an employee has different .employers, as when the employer, in pursuance of a contract between him and a third party, lends or hires out the services of his employee to that third party for a particular work.
Such an arrangement, however, does not effect a transfer of the contract of service between the employer and his employee, but only amounts to a transfer of the benefit of his services.
Century Insurance Co. Ltd. vs Northern Ireland Road Transport Board(").
In such cases where a third party engages another person 's employee it is the general employer who is normally liable for the tortuous acts committed by the employee and his liability is not affected by the existence of a contract between him and the third party under which the services of the employee are lent or hired out for a temporary period to such third party.
In order to absolve the employer from the liability and to make the person who.
temporarily engages the employee or hires his services it is necessary to prove that the relationship of master and servant was temporarily constituted between such third party and the employee, and that it existed at the time when the tortuous act was committed by the employee.
There is, however, a presumption against there being such a transfer of an employee as to make the hirer or the person on whose behalf the employee is temporarily working and a heavy burden rests on the party seeking to establish that the relationship of master and servant has been constituted pro hac vice between the temporary employer and the employee of.
Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd.(1).
In cases where an employer has hired out or lent the services of his employee for a specific work and such an employee has caused damage to another person by his tortuous act, the question often arises as to who of the two, i.e. the employer or the person to whom such services are hired out or lent, is ; at 17.
(2) ; 277 vicariously responsible for such damage.
In cases commonly known as cranes and carriage cases, courts in England evolved the rule of the employee being temporarily the employee of such third party to impose the responsibility on him if it was established that in the matter of the act, in the performance of which the tortuous act was committed, such third party had exercised control and direction over the performance of the act in question and the manner in which it was to be performed.
The classic case commonly cited and in which this rule was applied is Quarman V. Burnett (1) of.
also Jones vs Scullard(2) where Lord Russel applied the test of the power to, direct and control the act in performance of which damage was caused to another person.
The position in law is, therefore, clear that except in the case of a statutory provision to the contrary, a right to the service of an employee cannot be the subject matter of a transfer by an employer to a third party without the employee 's consent.
Thus, in Nokes vs Doncaster Amalgamated Collieries, Ltd. (3) where an order was made under section 154 of the Companies Act, 1929 transferring all the assets and liabilities of a company to another company.
Viscount Simon held that such an order did not mean that contracts of service between the appellant and the transferer company also stood transferred.
The principle that even in cases where the services of an employee are lent to a third party temporarily for a particular work, the employee still remains the employee of the employer is illustrated in Denham vs Midland Employees Mutual Assurance Ltd.(4).
There Eastwoods Ltd. employed Le Grands to make test borings on their property.
Le Grands provided two skilled drillers with plant and tackle to carry out the borings and Eastwoods Ltd. agreed to provide one of the labourers, one Clegg to assist those skilled men free of charge to Le Grands.
While the said work .was being carried out, Clegg was killed in circumstances in which Le Grands were liable to pay damages to his widow on the ground that his death was caused on account of the negligence of Le Grands or their servants.
Le Grands sought to be indemnified by their insurers against their said liability.
They were covered by two policies, one with the Midland Employers Mutual Assurance Ltd. in respect of their liability to the employees and the other with Lloyds in respect of their liability to the public in general.
The policy issued by the Midland Employers Mutual Assurance Ltd. provided that if any person "under a contract of service" with the insured were to sustain any personal injury by accident caused during the period of employment, and if the insured became liable to pay damages for such injury the association would indemnify the insured against all sums for which he would be so liable.
The policy issued by the Lloyds indemnified Le Grands for any sums for which they might become liable to (1) ; (2) (3) [1940] 3 All England Law Reports 549.
(4) [1955] 2 Q.B.437.
278 pay in respect of death or accidental bodily injury to persons and loss or damage to.
property arising in or out of the business of borings carried out by Le Grands.
The question was whether at the time of his death Clegg was the servant of Le Grands and under "a contract of service" with them as provided in their policy with the Midland Assurance Ltd. Dealing with that question, Denning, L.J. observed that the difficulty which surrounded such a subject arose because of the concept that a servant of a general employer may be transferred to a temporary employer so as to become for the time being his .servant.
Such a concept was, he said, a very useful device to place liability on the shoulders of the one who should properly bear it, but did not affect the contract of service itself.
No contract of service can be transferred from one employer to another without the servant 's consent and such consent is not to be raised by operation of law but only by the real consent in fact of the man express or implied.
He further observed: "In none of the transfer cases which has been cited to us had the consent of the man been sought or obtained.
The general employer has simply told him to go and do some particular work for the temporary employer and he has gone.
The supposed transfer, when it takes place, is nothing more than a device a very convenient and just device, mark you to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation.
It only applies when the servant is transferred so completely that the temporary employer has the right to.
dictate, not only what the servant is to do, but also how he is to do it.
" Applying these principles to the facts before him, he observed that he had no doubt that if a third person had been injured by the negligence of Clegg in the course of his work, Le Grands and not Eastwoods would be liable to such third person.
also, when Clegg himself was killed, Le Grands were liable to his widow on the same footing that they were his masters and not merely invitors.
These results were achieved in law by holding that Clegg became the temporary servant of Le Grands.
He further observed that there was no harm in thus describing him so long as it was remembered that it was a device designed to cast liability on the temporary employer.
However, on the question whether Clegg was "under a contract of service" with Le Grands, he held that he was not, for his contract of service was with Eastwoods.
They had selected him and paid his wages and they alone could suspend or dismiss him.
Clegg was never asked to consent to a transfer of the contract of service and he never did so.
If he was not paid his wages or if he was wrongfully dismissed from 279 the work, he could sue Eastwoods for the breach of contract and no one else.
If he failed to turn up for work, Eastwoods alone 'could sue him.
He could, therefore, see no trace of a contract of service with Le Grands except the artificial transfer raised by law so as to make Le Grands liable to others for his faults or liable to him for their own faults and that the artificial transfer so raised cannot be said to be a contract of service within the said policy of assurance.
Le Grands, therefore, were not entitled to 'be indemnified by the Midland Assurance Company under the employers ' liability policy but were entitled to be indemnified by Lloyds under their public liability policy.
A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be affected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party.
Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer.
Therefore, when an employer orders him to do a certain work for another person the employee still continues to be in his employment.
The only thing that happens in such a case is that he carries out the orders of his master.
The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired.
It may be that such third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer.
That does not preclude the employee from claiming his wages from the employer.
The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done.
But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer.
The right of dismissal vests in the employer.
Such being the position in law, it is of the utmost importance in the present case that the appellants at no time took the plea that the contract of employment with the factory was ever terminated or that the respondent gave his consent, express or implied, to his contract of service being transferred to the head office, or that there was a fresh contract of employment so brought about between him and the head office.
Unless, therefore, it is held from the circumstances relied upon by Mr. Phadke that there was a transfer of the contract of service or that Respondent 1 gave his consent, express or implied, to such a transfer, Respondent 1 would continue to be the servant of the factory.
Since the case has been remanded to the Assistant Commissioner, we refrain from making any observations as regards the effect of the admissions 280 said to have been made by Respondent 1 and relied on by the Assistant Commissioner.
Mr. Phadke, however, relied on Jestamani Gulabrai Dholkia vs The Scindia Steam Navigation Company(1) in support of his contention that there was a transfer of the contract of employment and that it was not a mere transfer of the benefit of the services of Respondent 1.
In that case the appellants were originally in the service of the Scindia Steam Navigation Company.
In 1937 Air Services of India Ltd. was incorporated.
In 1943, the Scindias purchased the ASI and by 1946 ASI became a full fledged subsidiary of the Scindias.
Between 1946 to 1951 the Scindias transferred several of their employees including the appellants to the ASI.
The Scindias had a number of such subsidiary companies and it was usual for them to transfer their employees to such companies and also to recall them whenever necessary.
In 1953, the Government of India decided to nationalise the airlines operating in India with effect from June 1953.
On April 6, 1953 the appellants wrote to the Scindias to recall them to their original posts but the Scindias refused to do so as they were not in a position to absorb them.
They pointed out that a Bill, called the Air Corporation Bill, 1953, was pending before Parliament, that under cl. 20 thereof persons working with ASI on the appointed day would become the employees of the Corporation, that under that clause they had the option to resign if they did not wish to join the Corporation and that if the appellants exercised that option.
the Scindias would treat them as having resigned from their service.
The Act was passed on May 28, of the Act provided that every employee of an existing air company employed by such company prior to July 1, 1952 and still in its employment immediately before the appointed day, shall, in so far as such employee is employed in connection with the undertaking which has vested in the Corporation by virtue of the Act, become, as from the appointed date, the employee of the Corporation in which the undertaking has vested.
On june 8, 1953 the appellants made a demand that if the Corporation were to retrench any persons from the staff loaned to ASI within the first five years, the Scindias should take them back.
The Scindias refused.
None of the appellants had exercised the option provided by section 20 (1 ).
On August 1, 1953 ASI became vested in the Corporation and section 20( 1 ) came into force as from that date.
The appellants contended inter alia that the contract of service between them and the Scindias was not transferable.
The contention was rejected on the ground that by reason of section 20(1) the contract of service of the appellants stood transferred to the Corporation and that though the appellants were not originally recruited by ASI and were transferred by the Scindias to the said company, (1) ; 281 they were the employees of ASI and were such employees on the appointed day and since they had not exercised the option under section 20( 1 ) they became the employees of the Corporation by operation of that provision.
The Scindias, therefore, were no longer concerned with them.
It is true that the appellants were transferred to ASI on condition that they would receive the same remuneration and other benefits as they were getting in the Scindias and further that it was possible to contend that Scindias alone could dismiss them.
But the learned Judges explained that these were special terms applicable to the appellants.
But in spite of them they still had become the employees of the ASI and were such employees on the appointed day.
It seems that this conclusion was reached on the footing that since ASI was the subsidiary company of the Scindias like several other subsidiary companies, and it was.
usual for the Scindias to transfer any of their employees to such subsidiary companies, the appellants on their transfer were deemed to have consented to become the employees of ASI in spite of the right of the Scindias to recall them whenever necessary and further that the appellants continued to be and were the employees of the ASI on the appointed day and were, therefore, governed by section 20(1 ) if the Act.
It is clear that this was a case of employees becoming the employees of the Corporation by virtue if the operation of a statute.
The decision, therefore, is not an authority for the proposition that an employer can transfer his employee to a third party without the consent of such employee or ' without terminating the contract of employment with him.
That being the position, the case of Jestamani vs The Scindia Steam Navigation(x) cannot assist Mr. Phadke.
In our view the High Court was, right in setting aside the order of the Assistant Commissioner and the Industrial Court on the ground that unless a finding was reached on the facts of the case that the contract of service with the said factory came to an end and a fresh contract with the head office came into being Respondent 1 continued to be in the employment of the factory and the head office, therefore, was not competent to dismiss him.
The appeal, therefore, fails and is dismissed with costs.
G.C. Appeal dismissed.
|
The appellant firm had a number of factories including one at Kamptee in Vidharba.
Its head office was also situated there,.
The factory at Kamptee and the head office were treated as separate establishment.
the factory being registered under the Factories Act and the Head Office under the C.P. and Berar Shops and Establishments Act, 1947.
Respondent No. 1 was originally employed at the aforesaid factory but later he was directed to work at the head office.
When the Head Office dismissed him from service he challenged the order of dismissal by an application under section 16 of the C.P. & Berar Industrial Disputes settlement Act.
The Assistant Commissioner dismissed the application holding that Respondent No. 1 at the material time was not an employee of the factory but was employed in the Head Office.
The Industrial Court refused, in revision, to interfere with the Assistant Commissioner 's order.
Respondent No. 1 filed a writ petition under article 226 of the Constitution.
The High Court observed that unless it was established that the employment of Respondent No. 1 in the factory was legally terminated it could be assumed merely because he was direct to work in the head office, that his employment was changed and the head office was substituted as his.
employer in place of the said factory.
, As the order passed by the Assistant Commissioner was not clear on this question the High Court remanded the case for disposal according to law.
The firm appealed to this Court.
HELD: (i) A contract for service is incapable of transfer unilaterally.
Such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to.
make a new contract between the employee and the third party.
So long as the contract of service is not terminated, a new contract is not made as aforesaid, and the employee continues to be in the employment of the employer.
Therefore, when an employer orders him to: do certain work for another person the employee still continues to be i.n his employment.
The only thing that happens in such a case is that he carries out the orders of his master.
employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired.
It may be that such a third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer.
that does not preclude the employee from claiming his wages from the employer.
the hirer may also.
exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done.
But if the employee fails to.
carry out his direction he cannot 273 dismiss him and can only complain to the employee.
The 'right of dismissal vests with the employer.
[279 &F] Such being the position in law, in the present case the High Court was right in setting aside the order of the Assistant Commissioner and the Industrial Court on the ground that unless a finding was reached on the facts of the case that the contract of service with the said factory came to an end and a fresh contract with the head office came into being, Respondent No. 1 continued to be in the employment of the factory and the head office therefore was not competent to dismiss him.
[281 F] Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd. ; at 17, Century Insurance Co. Ltd. vs Northern Ireland Road Transport Board, [1942] A.C. 509, Quarman vs Burnett, ; , Jones vs Scullard, , Nokes vs Doncaster Amalgamated Collieries, Ltd. [1940] 3 All England Law Reports 549 and Denham vs Midland Employees Mutual Assurance Ltd., , referred to.
Jestamani Gulabrai Dholkia vs The Scindia Steam Navigation Company ; , distinguished.
|
vil Appeal No. 1598 (NT) of 1974.
From the Judgment and Order dated 26.2.1971 of the Allahabad High Court in I.T. Reference No. 92 of 1966.
C.M. Lodha, N.M. Tandon and Miss A. Subhashini for the Appellant.
Dhananjoy Chandrachud (Amicus Curiae) for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal from the judgment and order of the High Court of Allahabad dated 26th February, 1971.
The assessee is a partnership firm which at the relevant time enjoyed the status of a registered firm for the assessment years 1960 61, 1961 62 and 1962 63.
In the assessment proceedings for the assessment year 1960 61, the assessee suffered a loss of Rs.60,054 in the speculation business which was to be carried forward for adjustment against speculation profits of future years.
For the assess ment year 1961 62 also, the assessee had suffered a loss amounting to Rs.6,839 in 945 speculation business and this was also to be carried forward for adjustment against speculation profits of future years.
For the assessment year 1962 63 which is the year with which this appeal is concerned, the assessee made a profit of Rs.58,102 from speculation business.
In the assessment proceedings for that year the assessee claimed that a loss of Rs.60,054 suffered in respect of the assessment year 1960 61 and the loss of Rs.6,839 suffered in respect 0" the assessment year 1961 62 should be set off against this speculation profit of Rs.59,102 for this year.
If that had been done, the speculation profits of the year under consid eration would have been absorbed completely by the losses brought forward from the preceding years.
The Income tax Officer, however, rejected the assessee 's claim.
He held that as the assessee was a registered firm, the losses could be carried forward and set off only by the partners and not by the firm.
The appeal by the assessee before the Assistant Appellate Commissioner was dismissed.
The assessee went up in appeal to the Tribunal.
The Tribunal held that the right to carry forward the losses relating to the assessment years 1960 61 and 1961 62 was governed by the Indian Income tax Act, 1922 (hereinafter called the '1922 Act ') and the section 75(2) of the Income tax Act, 1961 which was applicable to the assessment year 1960 61 had no application in the facts of this case.
The Tribunal was of the view that when an Act was passed repealing an earlier enactment, it could not be said to supersede any right already accrued under the repealed enactment unless there was something in the repealing Act to indicate that clearly.
The Tribunal, therefore, held that the assessee was entitled to have the losses brought forward from the preceding two years and set off against the profits earned for the year 1962 63 and accordingly allowed the appeal.
The revenue sought for reference to the High Court of Allahabad on the following question: "Whether, the assessee is, in law, entitled to set off of the speculation losses suffered in the assessment years 1960 61 and 1961 62 against the speculation profits of the previous year?" The High Court considering the provisions of section 75 of 1961 Act came to the conclusion that a right had accrued to the assessee by virtue of 1922 Act which entitled him to have the losses from speculation business in respect of the assessment year 1960 61 and 1961 62 to be carried forward and set off against the profits in speculation busi 946 ness of future years.
The High Court was of the view that that was a right which had accrued to it before the 1961 Act was brought into force.
The High Court came to the conclusion that by virtue of section 6 of the that right continued to subsist.
The High Court, therefore, was of the view that the Tribunal was fight in holding that the assessee was entitled to set off the specu lation losses suffered in the assessment years 1960 61 and 1961 62 against the speculation profits of the previous year 1962 63.
In appeal on behalf of the revenue before us, it was contended that the High Court was in error.
Our attention was drawn to the provisions of section 24(2) of 1922 Act which, inter alia, provided that where any assessee sus tained any loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending 31st day of March, 1940, in any business, profession or vocation, and the loss could not be wholly set off under sub section (1) of section 24 of the said Act, so much of the loss as was not so set off or the whole loss where the assessee had no other head of income would have been carried forward in the manner indicated therein.
So, therefore, the 1922 Act 'gave a right to set off speculation losses against speculation profits and to the extent it was unabsorbed, it had a fight to carry for ward the losses for the future years to be set off against speculation profits for future years.
It was submitted that in a way it was vested right a fight on assessment to set off the losses against the profits of the year in question and if not fully absorbed to carry forward to be set off against the profits of future years.
It was submitted on behalf of the revenue that it therefore continued so long as the Act permitted the setting off in that manner.
It was, however, urged that in view of the coming into operation of 1961 Act which came into operation on 1st of April, 1962, that fight no longer was there with the assessee.
Section 75 of 1961 Act provided an entirely new scheme.
It was as follows: "75.
Losses of registered firms. (1) Where the assessee is a regis tered firm, any loss which cannot be set off against any other income of the firm shall be apportioned between the partners of the firm, and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70, 71, 72, 73, 74 and 74A. (2) Nothing contained in sub section (1) of section 72, sub section (2) of section 73, sub section (1) of section 947 74 or sub section (3) of section 74A shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of the aforesaid sec tions.
" As a result of sub section (2) of section 75 of the said Act, there is prohibition, according to the revenue, enti tling the assessee being registered firm to have its loss carried forward and set off under the provisions except in the manner indicated in sub section (2) of section 75 of the Act.
It was submitted that as the assessment for the year 1962 63 had to be made under the provisions of 1961 Act, the assessee could not have the benefit of set off of the car ried forward loss.
In support of this contention reliance was placed on the decision of the Allahabad High Court in Commissioner of Income tax, Kanpur vs Mangiram Gopi Chand, where it was held that a registered firm could, so long as the 1922 Act was in force, carry forward speculation loss, if it could not be set off against specu lation income of the year in question.
However, the Court observed after coming into force of 1961 Act, specific provisions had been made in respect of losses of registered firms and such right of set off of speculation losses was no longer available.
The High Court was of the view that the right of a registered firm to set off and carry forward losses under section 24(2) of the 1922 Act was a substantive right.
However, where a repealing provision indicated the effect of the repeal on previous matters and provided for the operation of the previous law in part as also the opera tion of the new law in the other part in positive terms, the repealing and saving provision could be said to be self contained and excluded the applicability of section 6, according to the Allahabad High Court, of the .
Section 297(2) of 1961 Act, according to the Allahabad High Court, must be taken to be a self contained code in respect of the operation of 1922 Act and the rights which might have been created under it.
Inasmuch as section 297(2) of the 1961 Act did not save, said the Allahabad High Court, the right, if any, of a registered firm to set off its speculation losses, which have been carried forward, against the speculation profits of the firm, the right, if any, created by section 24(2) could not be said to remain intact after the repeal of the 1922 Act.
Speculation losses of years anterior to 1962 63 could not, therefore, be car ried forward and set off against speculation profits of a registered firm.
The Allahabad High Court considering the decision of this Court in State of Punjab vs Mohar Singh, ; observed that the principle laid down by this Court was that where the repealing provision indicated the effect of repeal on previ 948 ous matters and provided for the operation of the previous law in part and in negative terms as also for the operation of the new law in other part in positive terms, the repeal ing and the saving provision could be said to be self con tained Act.
While we respectfully agree with the principle applicable in interpreting the application of the Act, we are of the opinion that the Allahabad High Court was not fight in the application of that principle in the light of section 297(2) of 1961 Act in the aforesaid decision.
There is nothing in any of the clauses of subsection (2) of sec tion 297 of the Act which indicates that accrued rights under 1922 Act lapsed in respect of the assessment to be made after coming into operation of 1961 Act.
According to the Allahabad High Court in that decision, section 297(2)(a) provided for completion of assessment in accordance with the old Act where the return was filed before the commencement of the 1961 Act but section 297(2)(b) of the Act provided for completion of assessment in accordance with the provi sion of the new Act where the return was filed even in respect of years covered by the 1922 Act, after 31st March, 1962.
Reading section 297 in the manner it did, the Allaha bad High Court was of the view that where the provisions of the previous Act stood repealed, the set off cannot be given.
The Allahabad High Court had, it appears, no occasion to notice the judgment under appeal.
On behalf of the revenue, reliance was also placed on a decision of the Calcutta High Court in the case of Reliance Jute Mills Co. Ltd. vs Commissioner of Income tax, West Bengal 1, on the question of carry forward of the loss after the coming into operation of the Finance Act, 1955.
The principle enunciated therein, in our opinion, will have no application to the controversy in the present case.
Our attention was also drawn by the revenue to the decision of the Kerala High Court in the case of Helen Rubber Indus tries Ltd. vs Commissioner of Income Tax, Mysore, Travan core Cochin and Coorg, The Kerala High Court observed that the loss incurred in Travancore (in a Part B State) by the assessee during M.E. 1123 which could only have been carried forward for two years in accordance with the provisions of section 32(2) of the Travancore Income tax Act, 1121, could be carried forward beyond those two years for a period of six years in accordance with sections 24(2) of the Indian Income tax Act, 1922 for the assessment year 195 1 52, as the Indian Income tax Act, 1922 was applicable for that assessment year and the assessee had the right to carry forward losses in accordance with the provisions of that Act.
The High Court had to construe section 3 of the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950.
This case must also be understood in the back ground of 949 the facts of that case which are different from the instant case with the provisions with which we are concerned.
That was not a case of deciding whether the vested right was curtailed and if so to what extent.
This Court in Karimtharuvi Tea Estate Ltd. vs State of Kerala, ; observed that it was well settled that the Income tax Act as it stands amended on the first day of April of any financial year must apply to the assessment of the year.
Any amendments in that Act which came into force after the first day of April of a financial year, would not apply to the assessment for that year, even if the assess ment was actually made after the amendments came into force.
There, the Kerala Surcharge on Taxes Act, 1957, having come into force on 1st September, 1957, being the date appointed by the Kerala Government under section 1(3) of the Act, and not being retrospective in operation, by express intendment or necessary implication, could not be made applicable from 1st April, 1957.
Since the Act was not the law in force on 1st April, 1957, no surcharge on agricultural income tax could be levied under that Act in respect of the assessment year 1957 58.
That decision had also not dealt with the question of affecting vested rights.
In our opinion the right given to the assessee for the assessment year 1961 62 under section 24(2) of 1922 Act was an accrued right and a vested right.
It could have been taken away expressly or by necessary implication.
It has not been so done.
Neither section 297(2)(b) nor any other sub clauses of sub section (2) of section 297 indicates contrary intention of the legislature regarding any vested right of the assessee under the 1922 Act.
On the contrary section 6(c) of the indicates that right should be preserved.
Reliance may be placed on the observations of this Court in T.S. Baliah vs
T.S. Rangachari, Income tax Officer, Cen tral Circle VI, Madras, This Court observed that the provisions of section 52 of the Indian Income tax Act, 1922, do not alter the nature or quality of the offence enacted in section 177 of the Indian Penal Code, 1860.
They merely provide a new course of procedure for what was al ready an offence.
There is no repugnancy or inconsistency; the two enactments can stand together and they must be treated as cumulative in effect.
This Court, however, ob served that in enacting section 297(2) of the Income tax Act, 1961, it was not the intention of the Parliament to take away the right of instituting prosecutions in respect of proceedings which were pending at the commencement of the Act.
Parliament had not made any detailed provision for the 950 institution of prosecutions in respect of offences under the 1922 Act.
Section 6(e) of the General Clauses Act, 1987 applied for the continuation of such proceedings after the repeal of the Indian Income tax Act, 1922, and a legal proceeding in respect of an offence committed under the 1922 Act may be instituted after the repeal of the 1922 Act by the 1961 Act.
The Court reiterated that before coming to the conclusion that there is a repeal of an earlier enactment by a later enactment by implication, the court must be satis fied that the two enactments are so inconsistent or repug nant that these could not stand together and the repeal of the express prior enactment must flow from necessary impli cation of the language of the later enactment.
In Commissioner of Income Tax (Central), Calcutta vs
B.P. (India) Ltd., the Calcutta High Court was concerned with section 25(3) of the 1922 Act.
It is not necessary to set out in extenso the facts of that case.
It suffices to say that the discontinuance of the assessee 's business in that case took place on 28th February, 1962.
It could not be disputed that if the 1961 Act had not come into effect, the assessee would have been entitled to get the relief as granted by virtue of section 25(3) of the 1922 Act.
It was observed that on a reading of section 6 of the , it was clear that unless a con trary intention appears, the repeal of an Act does not affect any existing right, privilege, obligation or liabili ty.
It is, therefore, necessary to find out from the provi sions of section 297 of the 1961 Act which.repeals the 1922 Act, whether the old rights and liabilities have been in tended to be destroyed.
There was no corresponding provision under the 1961 Act dealing with the type of claims mentioned in sub section (3) or (4) of section 25 of the 1922 Act.
It was contended by the revenue that what was not said was destroyed and such intention would be apparent in that case from section 297(2)(h) of the 1961 Act.
The High Court referred to the 12th Report of the Law Commission, and Speaking for the Court, one of us (Sabyasachi Mukharji,J.) said that it was not possible to accept the submission for the revenue that whatever was not said was destroyed.
The Court reiterated that there must be a manifest intention of Parliament to destroy a right or privilege under the old Act.
There is no such provision in the new Act.
In the instant case also, section 75(2) dealt with a different scheme of carrying forward of loss but it did not speak of any accrued right.
It did not destroy either by express words or by necessary implication the vested right given to an assessee under section 24 (2) of the Act of 1922.
There fore, unless one finds in section 297 or within the four corners of the any intendment express or implied of destroying the rights created by section 24(2) of 951 carrying forward the losses to set off in subsequent years in case of speculation business that right cannot be said to be destroyed.
The fact that the fight created by the operation of section 24(2) is a vested right cannot in our opinion be disputed.
See in this connection the observations of this Court in Gujarat Electricity Board vs Shantilal R. Desai, ; at 587 and Isha Valimohamad & Anr.
vs Haji Gulam Mohamad & Haii Dada Trust, [1975] 1 S.C.R. 720 at 723.
Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years.
The fight of carrying forward and set off accrued to the assessee under the Act of 1922.
A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that fight accrued unless the re pealing statute took away such right expressly or by neces sary implication.
This is the effect of section 6 of the .
In this case the 'savings ' provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued.
In other words, whatever fights are expressly saved by the 'savings ' provision stand saved.
But, that does not mean that fights which are not saved by the 'savings ' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted.
Rights which have accrued are saved unless they are taken away expressly.
This is the principle behind section 6(c) of the .
The right to carry forward losses which had accrued under the repealed Income tax Act of 1922 is not saved expressly by section 297 of the Income tax Act, 1961.
But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the Old Act of 1922.
Section 6(c) saves accrued rights unless they are taken away by the repealing statute.
We do not find any such taking away of the rights by section 297 either expressly or by implica tion.
We are, therefore, of the opinion that the Allahabad High Court was in error in the view it took in the decision in Commissioner of Income tax, Kanpur vs Mangiram Gopi Chand (supra) but the High Court of Allahabad was fight in the judgment under appeal and the question was properly an swered.
The assessee in person did not appear at the time of the heating 952 of this appeal.
We requested Shri Chandrachud to assist us as amicus curiae.
We record that Shri Chandrachud has ren dered very able assistance to us in disposing of this ap peal.
This Court records its appreciation of the help ren dered by him.
The appeal in the premises fails and is dismissed with costs assessed at Rs.2,500 which amount should be paid to the amicus curiae.
A.P.J. Appeal dis missed.
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The assessee, a partnership firm, enjoyed the status of a registered firm for the assessment years 1960 61, 1961 62 and 1962 63.
In the assessment proceedings for the year 1962 63 the assessee claimed that a loss of Rs.60,054 suf fered in the speculation business in the assessment year 1960 61 and the loss of Rs.6,839 suffered in the assessment year 1961 62 should be set off against the speculation profit of Rs.58,102 for the assessment year 1962 63.
The Income Tax Officer rejected the assessee 's claim holding that as the assessee was a registered firm, the losses could be carried forward and set off only by the partners and not by the firm.
The appeal by the assessee before the Assistant Appellate Commissioner was dismissed.
In the appeal to the Tribunal, the Tribunal held that the right to carry forward the losses relating to the as sessment years 1960 61 and 1961 62 was governed by the Indian Income Tax Act, 1922 and that section 75(2) of the Income Tax Act, 1961 which was applicable to the assessment year 1960 61 had no application in the facts of this case; that when an Act was passed repealing an earlier enactment, it could not be said to supersede any right already accrued under the repealed enactment unless there was something in the repealing Act to indicate that clearly and, therefore, the assessee was entitled to have the losses brought forward from the preceding two years and set off against the profits earned for the year 1962 63.
In the Reference, the High Court held: (1) that a right had 943 accrued to the assessee by virtue of 1922 Act which entitled him to have the losses from speculation business in respect of the assessment year 1960 61 and 1961 62 to be carried forward and set off against the profits in speculation business of future years; (2) that was a right which had accrued to it before the 1961 Act was brought into force; (3) that by virtue of section 6 of the General Clauses Act that right continued to subsist and (4) that the Tribunal was right in holding that the assessee was entitled to set off the speculation losses suffered in the assessment years 1960 61 and 1961 62 against the speculation profits of the assessment year 1962 63.
Dismissing the Appeal of the Revenue, HELD: 1.
The Allahabad High Court was in error in the view it took in the decision in Commissioner of Income Tax, Kanpur vs Mangi Ram Gopichand, but it was right in the judgment under appeal and the question was properly answered.
[951 G H] 2.
The right created by the operation of section 24(2) of 1922 Act is a vested right.
[951 A B] Gujarat Electricity Board vs Shantilal R. Desai, ; at 587 and Isha Valimohamad & Anr.
vs Haji Gulam Mohamad & Haji Dada Trust, [1975] 1 S.C.R. 720 at 723, referred to.
Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years.
The right of carrying forward and set off accrued to the assessee under the Act of 1922.
A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the re pealing statute took away such right expressly or by neces sary implication.
This is the effect of section 6 of the .
[951B D] 4.
Whatever rights are expressly saved by the 'savings ' provision stand saved.
But, that does not mean that rights which are not saved by the 'saving ' provision are extin guished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted.
Rights which have accrued are saved unless they are taken away expressly.
This is the principle behind section 6(c) of the .
[951E F] 944 5.
The right to carry forward losses which had ac crued under the repealed Income Tax Act of 1922 is not saved expressly by section 297 of the Income Tax Act, 1961.
But it is not necessary to save a right expressly in order to keep it alive after the repeal of the Old Act of 1922.
Section 6(c) of the saves accrued rights unless they are taken away by the repealing statute.
Taking away of any such rights by section 297 either expressly or by implication is not found.
[951 F] Commissioner of Income tax Kanpur vs Mangiram Gopi Chand, , overruled.
State of Punjab vs Mohar Singh, ; ; Reliance Jute Mills Co. Ltd. vs Commissioner of Income tax, ; Helen Rubber Industries Ltd. vs Commissioner of Income Tax, Mysore Travancore Cochin and Coorg., and Karimtharuvi Tea Estate Ltd. vs State of Kerala, ; , referred to.
T.S. Baliah vs
T.S. Rangachari, Income tax Officer, Central Circle VI.
Madras, and Commissioner of Income tax (Central), Calcutta vs
B.P. (India) Ltd., , followed.
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W.P.(C). No. 28288 of 2021
W.P.(C). No. 28288 of 2021
Dated this the 10th day of February, 2022
This writ petition is filed by an advocate with a prayer to
issue a writ in the nature of mandamus directing the respondents
to remove the Malayalam movie "Churuli" from the 'Over The
Top Platform' (for short 'OTT Platform') as expeditiously as
possible. The second prayer is to issue such other writ, order,
and direction directing the respondents as this Hon'ble Court
deems fit in the interest of justice.
“Pleadings of the parties”
2.The petitioner is an advocate by profession and is
having an office at Ayyanthole, Thrissur. 'Churuli' is a
Malayalam language movie directed and co-produced by
W.P.(C). No. 28288 of 2021
renowned director Lijo Jose Pellisseri and written by S.Harish.
The movie was released on the OTT Platform in SonyLIV on
19.11.2021. According to the petitioner, even though the movie
'Churuli' is capable of invoking a sense of curiosity and mystery
in the minds of the audience, there is an overdose of foul
language used in the movie. It is pleaded that the movie
contains obscene and filthy languages which are opposed to
public morality and tranquility. According to the petitioner,
every character in the movie uses at least a single offensive
word in every dialogue they deliver. The filthy languages are
used lavishly and without any curtain. It is the case of the
petitioner that the words and language used in the film are not
one that can be used publicly and openly. It is the case of the
petitioner that, a person of common parlance will not use such
languages even privately at home. According to the petitioner,
the filmmaker had used such language deliberately with the
intention to get more attention to the movie. Apart from using
W.P.(C). No. 28288 of 2021
filthy words, the petitioner submitted that there are a lot of
usages which is totally against the morality of ladies and
objectionable to all ladies' common conduct. The words used in
the movie outrages the modesty of ladies and children and a
person who is watching this movie will feel irritated and
disgusted, the petitioner submits. It is pleaded that since a
movie which is supposed to be a form of art, it influences
common people of the society and it is common among people
to imitate the dialogues of the Malayalam movies and if this
similar situation happens with the movie ‘Churuli’, it will affect
the public morality and tranquility. It is contended that the
censor board has violated the rules and regulations by giving
permission to release this movie. According to the petitioner,
releasing a movie of this kind on a public platform will attract
the offences under the Indian Penal Code. According to the
petitioner, during the pandemic season, the children and the
teenagers are staying at home as their schools are shut down and
W.P.(C). No. 28288 of 2021
they are more prone to this OTT platform and this uncensored
content. The parents seem it very difficult to monitor the
children all the time, especially teenagers, who cannot be kept
away from the phone or any other like gadgets as these devices
are necessary for schools and colleges works. According to the
petitioner, in January 2019 eight video streaming platforms had
signed a self-regulatory code that stated a set of guiding
principles for the contents which can be displayed online. There
were five terms and conditions which had to be mandatorily
followed and the same is extracted in the grounds of the writ
petition and the same is extracted hereunder also:
a) No such content shall be added on these platforms
which would cause any disrespect to the national
emblem or national flag.
b) Display of content which can hurt religious
sentiments could not be streamed.
c) Visuals promoting child pornography to be strictly
W.P.(C). No. 28288 of 2021
prohibited.
d) Content which is banned by the law or order of the
country could not be streamed.
e) Terrorism of any kind cannot be promoted.
It is the case of the petitioner that there is violation of the above
terms and conditions also. Hence, this writ petition.
3.The 1st respondent in this writ petition is the Central
Board of Film Certification (for short 'CBFC') and a statement is
filed by the Assistant Solicitor General of India on behalf of the
1st respondent. In the statement, it is stated that an application of
the Malayalam feature film titled "Churuli" was received in the
regional office, Central Board of Film Certification,
Thiruvananthapuram on 23.10.2021 along with all other
documents. After scrutiny of the application, the film was
screened on 29.10.2021 before the Examining Committee with
Regional Officer, CBFC, Thiruvananthapuram as Examining
W.P.(C). No. 28288 of 2021
Officer, and four advisory committee members, which included
a total of three women including the Examining Officer. It is
stated that on examination, the Examining Committee
unanimously recommended Adult Certificate ('A') to the film
subject to certain excisions and modifications. This was
conveyed to the applicant at the time of the hearing, which was
held on the same day after screening. It is submitted that the
producer of the film submitted the excisions and modifications
suggested by the CBFC at 12.11.2021 and after verification by
the CBFC on 18.11.2021 the film was given 'Adult Certificate'
with No.DIL/3/6/2021-THI on 18.11.2021. It is specifically
stated in the writ petition that the Malayalam feature film
'Churuli' which is being exhibited through OTT platform by the
SonyLIV is not the certified version of the film. It is submitted
that the Regional Officer, CBFC, Thiruvananthapuram, by an
official statement dated 22.11.2021 had informed the general
public that the Malayalam feature film 'Churuli' which is being
W.P.(C). No. 28288 of 2021
exhibited through OTT platform SonyLiv is not the certified
version of the film. It is also stated that the Central Board of
Film Certification has no role with regard to the films in the
OTT platform. It is submitted that the contents on the internet
cannot be governed by the Cinematograph Act, 1952.
4.The 2nd respondent filed a counter affidavit in the writ
petition. The 2nd respondent submitted that the Cinematograph
Act, 1952 has no application in the OTT Platform. The
exhibition of content on the OTT platform, which is the subject
matter of the present petition, is governed by a separate set of
regulations, i.e., the Information Technology Act, 2000 r/w
Information Technology (Intermediary Guidelines and Digital
Media Ethics Code), Rules 2021 (for short 'the Rules, 2021').
According to the 2nd respondent, the Rules 2021 impose
reasonable restrictions on the exercise of their right of freedom
of speech and expression. It is submitted that the transmission
W.P.(C). No. 28288 of 2021
or streaming of films through the medium of the internet will not
come within the purview of clause (c) of Section 2 of the
Cinematograph Act, 1952. The OTT platforms are not public
platforms like TV channels or cinema theaters, where content is
broadcast simultaneously to all viewers. According to the 2nd
respondent, the contents displayed on the 2nd respondent's OTT
platform are classified in accordance with the provisions of the
Rules, 2021, depending on the nature and theme of the movie.
Any person intending to watch a film or a serial on the OTT
platform as a subscriber has to first take a subscription for which
the person has to be above 18 years of age. Part III of the Rules,
2021 sets about the code of ethics and procedure and safeguards
in relation to digital media and applies, inter alia, to publishers
of online curated content. The 2nd respondent submits that they
will fall within the definition of “publisher of online curated
content” in Rule 2(1)(u) of the Rules, 2021. According to the 2nd
respondent, the film Churuli is classified, which is restricted to
W.P.(C). No. 28288 of 2021
viewing by Adults and hence, given 'A rating. This rating,
according to the 2nd respondent has been given, on the basis of
the language used and violence depicted in the film. A true copy
of the screenshot depicting the said rating and classification is
produced as Ext.R2(a) along with the counter. It is also
contended by the 2nd respondent that the present petition is
premature as the petitioner has failed to exercise the alternative
remedy prescribed by the IT Rules. According to the 2nd
respondent, any person, who is aggrieved by the contents being
made available on the respondent's platform has the right to
approach the grievance cell and the platform has the obligation
to provide a grievance redressal officer. The details of the
grievance redressal officer appointed by the second respondent
are also mentioned in the counter affidavit. According to the 2nd
respondent, while the use of language in the film is strong, the
respondent has adhered to the guidance provided in the
Appendix to the IT Rules. With this guidance in mind, it is
W.P.(C). No. 28288 of 2021
submitted that the highest level of classification that can be
given to the used strong language is 'A' rating which means that
the contents are restricted to be viewed by adults only. Hence, it
is contended that the 2nd respondent has discharged the
obligation imposed as per Rules, 2021. According to the 2nd
respondent, the language used in the film is in the context of the
movie's underlying theme and storyline. It is stated that all the
dialogues in the movie are contextual and used in a particular
context of the storyline. It is the specific case of the 2nd
respondent that the 2nd respondent has not violated any of the
provisions of Rules, 2021, and the petitioner is not entitled to
any reliefs in this writ petition.
5. A statement is filed on behalf of the additional 7th
respondent as directed by this Court on 07.01.2022 in which the
report submitted by the Special Team constituted by the State
Police Chief, Kerala, as per the directions of this Court is also
W.P.(C). No. 28288 of 2021
produced as Ext.R7(b).
The Interim Order and the consequential actions from the
respondents.
6.When the above writ petition came up for admission,
this Court admitted the writ petition and issued notice to the
respondents. Thereafter, when the matter came up for
consideration on 07.01.2022, this Court passed the following
order:
“Churuli” is a Malayalam movie directed by the 3rd
respondent and co-produced by the 4th respondent.
The 4th respondent is also acting in this film.
Respondents 5 and 6 are the other actors. The prayer
in this writ petition is to remove the film from the
Over The Top (OTT) platform.
2. The story of this film is like this:
"Churuli" is an imaginary village of the filmmaker
situated in a forest area. The inmates of "Churuli"
W.P.(C). No. 28288 of 2021
have no connection with the outside world and all of
them are absconded criminals. The language used by
the inmates are colloquial containing obscene and
filthy language. Two cops reached Churuli to
apprehend a born criminal. The cops reached Churuli
in disguise and tried to mingle with the villagers to
find out the criminal they are searching. Cops also
used the same obscene and filthy language to find out
the wanted criminal. At last they apprehend the
criminal. This is the sum and substance of the
admitted story of the film "Churuli".
3. According to the petitioner, the language used by
the characters in this film are obscene and filthy and
hence, opposed to public order, decency and
morality. It is also contended that the releasing of
these types of movies in OTT platform will attract
criminal offences and is also a violation of statutory
provisions of law in this field.
4. A cinema is a creation of a film maker. Artistic
freedom generally means a freedom to imagine,
create and distribute cultural expressions. Article
W.P.(C). No. 28288 of 2021
19(1)(a) of the Constitution of India envisages a
fundamental right to freedom of speech and
expression to all citizens, but of course with an
exception mentioned in Article 19(2) of the
Constitution. Article 19(2) of the Constitution of
India is extracted hereunder:
“Nothing in sub clause (a) of clause (1)
shall affect the operation of any
existing law, or prevent the State from
making any law, in so far as such law
imposes reasonable restrictions on the
exercise of the right conferred by the
said sub clause in the interests of the
sovereignty and integrity of India, the
security of the State, friendly relations
with foreign States, public order,
decency or morality or in relation to
contempt of court, defamation or
incitement to an offence.”
5. The film “Churuli” is exhibiting in OTT platform.
Those who want to watch it, they can pay and watch
W.P.(C). No. 28288 of 2021
it. There is no compelled viewing of this movie. The
OTT platform cannot be treated as captive audience
who are forced to watch the movie.
6. According to film makers, the inmates of
“Churuli” are using a colloquial language which
contains filthy and obscene language. This Court,
invoking the powers under Article 226 of the
Constitution of India, cannot dictate the film maker
to use only Valluvanadan slang Malayalam or
Kannur slang Malayalam or Trivandrum slang
Malayalam by the characters in the movie. This
Court can only verify whether the exhibition of
“Churuli” film violates any existing law enacted to
ensure public order, decency or morality. While
deciding the same, the artistic freedom of a film
maker should be in mind. Before deciding this issue,
it will be beneficial to get the opinion of State Police
Department. Therefore the following interim orders
are passed:
1. The State Police Chief, Government of Kerala, is
suo motu impleaded as additional 7th respondent.
W.P.(C). No. 28288 of 2021
Registry will carry out necessary amendment in the
cause title. The Government Pleader takes notice for
the additional 7th respondent.
2. The State Police Chief will constitute a team to
watch the movie “Churuli” which is available in
OTT platform. The team should be constituted within
three days from the date of receipt of this order.
3. The team should watch the film and verify
whether there is any statutory violation or any
criminal offence is made out. The team, after
watching the film, will prepare a report, and the 7th
respondent, based on the same, will file a statement
within two weeks from the date of constituting the
team mentioned above. The report of the team also
should be produced before this Court. The
respondents are free to file counter affidavit in the
meanwhile. Issue a copy of this order to the
Government Pleader today itself.
Post along with the counter affidavit/statement, if
any, on 31.01.2022.”
W.P.(C). No. 28288 of 2021
7. Based on the above direction, the State Police Chief
constituted a special team headed by the Additional Director
General of Police, in which four other officers are also included.
The team after watching the movie submitted a report which is
produced as Annexure.R7(b). The relevant portion of the report
is extracted hereunder:
“The Committee conducted sittings and Committee
members watched the movie on the OTT Platform on
SONYLIV . The Committee reports as follows:
1) The plot of the movie "Churuli" is life of a group
of Fugitives from Law residing in deep forests which
is highly inaccessible to the outside world. The
inmates of film "Churuli" has little connection with
outside world. The Inmates of the imaginary world
are rough and tough in character who are braving the
odds of nature and are in constant dread of
apprehension by Law. Their living conditions are
meagre and life is an everyday struggle for existence
for them. They face danger from wild life and other
W.P.(C). No. 28288 of 2021
perils of forest life. It is a daily struggle for existence
for the characters in the movie. The centre of action
in the movie is an Illegal Arrack brewing centre deep
inside the forest.
2) The characters in the movie due to their living
conditions and circumstances are forced to speak in
rough and tough language replete with expletives and
cuss words in their day to day interactions.
3) For the plot and circumstance of the Movie,
"Churuli" to be believable to the audience the
characters in the movie has to speak in such a
language which reflects their circumstances and
living conditions. In order to make the Movie
believable and for the audience to fully appreciate
the life and culture of the characters such language is
unavoidable. The language spoken by the characters
In the movie is intrinsic to the roles played. Persons
living in such living conditions cannot be expected to
speak in a decent language used by people residing in
a normal area.
4) Cinema is a work of art and film maker is an
W.P.(C). No. 28288 of 2021
Artist. Article (19) of the Constitution bestows
Artistic Freedom to the Artists. Law cannot direct an
Artist to use his artistic talents in a particular manner
or direct the characters to use a particular language in
a particular manner. Artists have full artistic freedom
provided that the existing Laws of the Country are
not violated.
5) Given the above, the question to be answered is
whether the film "Churuli" violates any Statutory
Offence or any Criminal Offence.
a) Section 294 of IPC is the Penal Section
dealing with "Obscenity". Section 294 clearly
says an act become punishable under
"Obscenity" only if it is committed in a
PUBLIC PLACE. Subsequent Interpretations
of the Hon'ble Supreme Court (Pawan Kumar
V State of Haryana (1996) 4 SCC 17: 1997
SCC (Crl) 583) also affirms this fact.
6) The movie "Churuli" is shown on the OTT
Platform. OTT is not a Public Place. A Place
becomes Public when a person Irrespective of
W.P.(C). No. 28288 of 2021
age/gender or Socio-economic status has free entry
and exit without any barrier or restrictions. Going by
this definition OTT (Over The Top) Platform is not a
Public Place. OTT cannot be accessed by anyone.
Entry to an OTT Platform is not free. To have an
access to an OTT Platform, a person
a) has to possess a Smart Device (Smart TV ,
Smart Phone with internet access).
b) The particular App has to be downloaded.
c) Monthly subscriptions has to be paid in
advance to download the Application.
Hence, offence under Section 294 IPC
is not made out in the film "Churuli".
7) The alleged presence of obscene matter In the
language used by the characters of the film 'Churuli'
is outweighed by the preponderance of artistic value
and social purpose of the said film. It will be relevant
to quote from the following passage in the judgment
of the Hon'ble Supreme Court in a case where the
Apex Court has upheld the freedom of Speech and
W.P.(C). No. 28288 of 2021
Expression under Article 19(1) through
cinematograph and refused the restrictions on the
exhibition of the film on grounds of obscenity. The
Quote is as follows:
"We find that the judgment under appeal does not
take due note of the theme of the film and the fact
that it condemns rape and the degradation of and
violence upon women by showing their effect upon a
village child, transforming her to a cruel dacoit
obsessed with wreaking vengeance upon a society
that has caused her so much psychological and
physical hurt, and that the scenes of nudity and rape
and the use of expletives, so far as the Tribunal had
permitted them, were in aid of the theme and
intended not to arouse prurient or lascivious thoughts
but revulsion against the perpetrators and pity for the
victim"
(Bobby Art International Vs Om Pal Singh Hoon
[MANU/SC/0466/1996] popularly known as the
Bandit Queen Case ).
8) Through the above judgment it is clear that the
W.P.(C). No. 28288 of 2021
Hon'ble Supreme Court has ruled that a film cannot
be restricted simply because the content is obscene,
indecent or immoral. The abusive language or nudity
in the movie has to further the cause regarding the
depiction of the reality of the story of the Movie
concerned.
10) The film "Churuli" released in Over the Top
(OTT) platform, through SonyLIV , a social media
intermediary, complies with the Guidelines specified
under Rules 3 and 4 of the Information Technology
(Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021, issued by the Central
Government under the Information Technology
Act, 2000.
11) SonyLIV is displaying the Content Classification
of the film "Churull" as "A" (18+) (restricted to
adults) in accordance with the Code of Ethics of the
above mentioned Rules. As per the Rules, cited
above content may be classified on the basis of of.-i)
Themes and messages; ii) Violence; iii) Nudity; iv)
Sex; v) Language; vi) Drug and substance abuse; and
W.P.(C). No. 28288 of 2021
(vii) Horror. As regards display of classification,
"Churuli displays prominently the warning - Strong
Language, Violence, Threat Visuals is prominently
displayed as directed in Central Rules. This content
classification Rules are seen complied with by
SonyLIV , with respect to movie "Churuli".
12) Section 67 of the IT Act 2000 provides
punishment for publishing or transmitting or
transmitting obscene material in electronic form. The
said provision is not attracted in the case as its
content is already certified as 'A' (Restricted to
Adults) under the Central Government Rules. The
Petitioner in the Writ Petition is free to invoke the
Grievance Redressal Mechanism under Part III of the
said Rules if he/she is dissatisfied with the 'A'
(restricted to adults) certification of the film.
This Grievance Redressal Mechanism is enumerated
in detail in Part III of the Rules.
13) The movie "Churuli" does not contain any
dialogue or action or suggestion instigating Violence
against State or any matter adversely affecting
W.P.(C). No. 28288 of 2021
Sovereignty, Integrity of the State, Friendly relations
with other Nations or any matter provoking or
promoting hatred among communities/religions or
affecting Communal harmony.
In view of the above discussion, the Committee has
come to the conclusion that the film "Churuli" has
not made any statutory violation or any criminal
offences. It is in full compliance with Rules and
Laws in this regard. The depiction of characters in
the movie, their language, dialogues etc falls under
the freedom of artistic expression which is the
exclusive realm of the creative freedom of artists,
and Police has no objections to the Movie, its
characters or their language used in the Movie.”
Analysis of the facts and resolution
8.Heard Advocate C A Anoop for the petitioner, ASGI
for the 1st respondent, Senior Counsel Grashious Kuriakose
instructed by Shaji Thomas For the 2nd respondent, Advocate
Sangeetha Lakshmana for the 5th respondent, and the
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Government Pleader for the 7th respondent.
9.The main grievance of the petitioner is that 'Churuli',
which is a Malayalam feature film contains obscene and filthy
language which opposes public morality and tranquility. In the
pleading in the writ petition also, it is only stated that the film
contains obscene and filthy languages, which opposes public
morality and tranquility. According to the petitioner, a person of
common parlance will not use such languages even privately at
home. It is also stated that the release of a movie of this kind on
a public platform will attract the offences under the Indian Penal
Code. According to the petitioner, if this movie is allowed to
watch by children and teenagers, there is a chance to imitate the
language in the film by them. Except stating that the film
contains obscene and filthy languages, there are no other
averments in the writ petition regarding the rules based on
which the OTT platform is functioning and whether there is any
W.P.(C). No. 28288 of 2021
mechanism to check about the allegations raised in the writ
petition. Simply stating in the writ petition that a movie contains
an overdose of foul, filthy, and obscene language, this Court
cannot direct the authority to remove the movie from the OTT
platform. Moreover, the prayer in the writ petition is to issue a
writ of mandamus directing the respondents to remove the
movie ‘Churuli’ from the OTT platform. The prayer is so vague.
The 1st respondent is the Central Board of Film Certification.
Admittedly, the 1st respondent has no role in uploading films to
OTT platform. Respondent No.3 is the director of the film.
Respondents 4 to 6 are actors in the film. It is also stated that the
fourth respondent is a Co-producer. The petitioner prays to issue
directions to the Central Board of Film Certification and to the
Director and other artists of the film to remove the film from the
OTT platform. There is indeed a prayer to issue direction to the
2nd respondent also. The relevant provision which is applicable
to OTT platform movies is also not mentioned in the writ
W.P.(C). No. 28288 of 2021
petition. It is only mentioned that the exhibition of the movie
amount to the commission of criminal offences under the Indian
Penal Code. When a writ petition is filed with a serious
allegation that a feature film violates certain provisions of the
Indian Penal Code, at least the prayers in the writ petition should
be clear and specific. An actor or the director or the producer of
a film cannot remove the movie from the OTT platform.
Therefore, according to me, the writ petition lacks sufficient
pleadings and the prayers in the writ petition itself are vague.
10.As far as the exhibition of films in the OTT platform
is concerned, the Ministry of Electronics and Information
Technology framed the Rules, 2021 in the exercise of the
powers conferred by Section 87 of the Information Technology
Act, 2000. It was framed in supersession of the Information
Technology (Intermediary Guidelines) Rules, 2011. Part II of
the Rules 2021 deals with due diligence by intermediaries and
W.P.(C). No. 28288 of 2021
the grievance redressal mechanism. Part III of the Rules, 2021
deals with the Code of Ethics and Procedure and Safeguards in
relation to digital media. This part applies to the publishers of
the news and current affairs content and publishers of online
curated content. The publisher is defined in Rule 2 (s) of Rules,
2021, which says that publisher means a publisher of news and
current affairs content or the publisher of online curated content.
Online curated content is defined in Rule 2(q) as any curated
catalogue of audio visual-content, other than news and current
affairs content, which is owned by, licensed to, or contracted to
be transmitted by a publisher of online curated content and made
available on demand, including but not limited through
subscription, over the internet or computer network, and
includes films, audio visual programmes, documentaries,
television programmes, serials, podcasts and other such
contents. Rule 9 of Part III of Rules, 2021 says about the
observance and adherence of the code. Rule 9(3) says that for
W.P.(C). No. 28288 of 2021
ensuring observance and adherence to the code of ethics by
publishers operating in the territory of India and for addressing
the grievance made in relation to publisher under Part III, there
shall be a three tire structure as Level I-self regulation by
publishers, Level II-self regulation by self-regulating bodies of
the publishers and Level III- oversight mechanism by the
Central Government. Chapter I in Part III deals with the
grievance redressal mechanism. Chapter II deals with self-
regulating mechanism – Level I. Chapter III deals with self-
regulating mechanism – Level II. Chapter IV deals with the
oversight mechanism – Level III.
11.Therefore, it is clear from the Rules, 2021 that if the
petitioner has got any grievance against the movie Churulim
there is a grievance redressal mechanism as per Rules, 2021.
Admittedly, the petitioner has not availed of such alternative
remedies. Therefore, prima facie, according to me, the writ
W.P.(C). No. 28288 of 2021
petition is not maintainable, because the petitioner has not
availed the alternative remedy, that is available as per Rules,
12.Moreover, I considered the grievance raised by the
petitioner in the writ petition. According to the petitioner, the
Churuli movie contains an overdose of foul, obscene, and filthy
languages which are opposed to public morality and tranquility.
Article 19 (1) (a) of the Constitution of India envisages a
fundamental right to freedom of speech and expression. The
only restriction for the freedom of speech and expression is
mentioned in Article 19(2) of the Constitution. As per Article 19
(2) nothing in sub-clause (a) of Clause (1) shall affect the
operation of any existing law or prevent the State from making
any law in so far as such law imposes reasonable restrictions on
the exercises of the right conferred by the said sub-clause in the
interest of the sovereignty and integrity of India, the security of
W.P.(C). No. 28288 of 2021
the State, friendly relations with foreign State, public order,
decency or morality or in relation to contempt of court,
defamation or incitement to an offence. The only point to be
decided is whether there is anything to restrict the freedom
available to a film maker as per Article 19(1) of the Constitution
of India.
13.A film is a creation of an artist. Artistic freedom
generally means a freedom to imagine, create and distribute
cultural expressions. Article 19(1)(a) of the Constitution of India
envisages a fundamental right to freedom of speech and
expression to all citizens, but of course with an exception
mentioned in Article 19(2) of the Constitution. It is a settled
position that artistic freedom is covered by Article 19(1) (a) of
the Constitution. The writer and the director of a film are the
masters of that film. Whether the exhibition of “Churuli” film
violates any existing law enacted to ensure public order, decency
W.P.(C). No. 28288 of 2021
or morality is the question to be decided. This Court while
considering this writ petition decided to get the opinion of the
State Police Department regarding the alleged violation of the
law enacted to ensure public order, decency, and morality. A
special team constituted by the State Police Chief, (which
include three women members) after watching the movie
reported before this Court that there is absolutely no statutory
violation of any law and it is also stated in the report, which is
produced as Annexure R2(b) that no criminal offence is made
out as alleged in the writ petition. Therefore, even according to
the State Police Department, there is no violation of any existing
statutory rule in the film, and no criminal offence is made out in
exhibiting the above film in the OTT platform.
14.A film is to be assessed after watching the film in
full. Without watching a movie in full, it is not proper to
comment based on some isolated dialogues in the film. Whether
W.P.(C). No. 28288 of 2021
those dialogues are necessary for the facts and circumstances of
the story in the movie is a matter to be decided by the filmmaker
and this Court also can look into the same to find out whether
the filmmaker exceeds his right of freedom of speech and
expression. In State of Bihar v. Smt.Shailabala Devi [AIR
1952 SC 329], a constitutional bench of the Apex Court
considered the contents of a pamphlet to find out the
objectionable matters in it. The apex court observed that the
writing in the pamphlet has to be considered as a whole. The
court observed that, in a fair, free, and liberal spirit, not dwelling
too much upon isolated passages or a strong word here and
there, an endeavour should be made to gather the general effect
which the whole composition would have on the mind of the
public. K.A. Abbas v. Union of India and another [AIR 1971
SC 481], the Apex Court observed that treatment of motion
pictures must be different from that of other forms of art and
expression. The Apex Court observed that motion pictures can
W.P.(C). No. 28288 of 2021
stir up emotions more deeply than any other product of art. Its
effect particularly on children and adolescents is very great since
their immaturity makes them more willingly suspend their
disbelief than mature men and women. Therefore, the Apex
Court observed that the classification of films into two
categories of 'U' films and 'A' films is a reasonable
classification. Moreover, in K.Abbas case ( supra), the Apex
Court considered artistic freedom in detail. It will be better to
extract paragraphs 50, 51 and 52 of the above judgment:
“50. But what appears to us to be the real
flaw in the scheme of the directions is a total
absence of any direction which would tend to
preserve art and promote it. The artistic
appeal or presentation of an episode robs it
of its vulgarity and harm and this appears to
be completely forgotten. Artistic as well as
inartistic presentations are treated alike and
also what may be socially good and useful
and what may not. In Ranjit D. Udeshis case,
(1965) 1 SCR 65 = (AIR 1965 SC 88# l), this
Court laid down certain principles on which
the obscenity of a book was to be considered
with a view to deciding whether the book
W.P.(C). No. 28288 of 2021
should be allowed to circulate or withdrawn.
Those principles apply mutatis mutandis to
films and also other areas besides obscenity.
The Khosla Committee also adopted them
and recommended them for the guidance of
the film censors. We may reproduce them
here as summarized by the Khosla
Committee:
"The Supreme Court laid down the following
principles which must be carefully studied
and applied by our censors when they have
to deal with a film said to be objectionable
on the ground of indecency or immorality:
(1) Treating with sex and nudity in art
and literature cannot be regarded as evidence
of obscenity without something more.
(2) Comparison of one book with
another to find the extent of permissible
action is not necessary.
(3) The delicate task of deciding what
is artistic and what is obscene has to be
performed by Courts and in the last resort, by
the Supreme Court and so, oral evidence of
men of literature or others on the question of
obscenity is not relevant.
(4) An overall view of the obscene
matter in the setting of the whole work
would of course be necessary but the
obscene matter must be considered by itself
and separately to find out whether it is so
gross and its obscenity is so decided that it is
likely to deprave or corrupt those whose
minds are open to influence of this sort and
W.P.(C). No. 28288 of 2021
into whose hands the book is likely to fall.
(5) The interests of contemporary
society and particularly the influence of the
book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed,
art must be so preponderating as to throw
obscenity into shadow or render the
obscenity so trivial and insignificant that it
can have no effect and can be overlooked.
(7) Treating with sex in a manner
offensive to public decency or morality
which are the words of our Fundamental
Law judged by our national standards and
considered likely to pander to lascivious
prurient or sexually precocious minds must
determine the result.
(8) When there is propagation of ideas,
opinions and information's or public interest
or profits, the interests of society may tilt the
scales in favour of free speech and
expression. Thus books on medical science
with intimate illustrations and, photographs
though in a sense immodest, are not to be
considered obscene, but the same
illustrations and photographs collected in a
book from without the medical text would
certainly be considered to be obscene.
(9) Obscenity without a preponderating
social purpose or profit cannot have the
constitutional protection of free speech or
expression. Obscenity is treating with sex in
a manner appealing to the carnal side of
human nature or having that tendency. Such
W.P.(C). No. 28288 of 2021
a treating with sex is offensive to modesty
and decency.
(10) Knowledge is not a part of the
guilty act. The offenders knowledge of the
obscenity of the book is not required under
the law and it is a case of strict liability".
Application of these principles does not seek
to whittle down the fundamental right of free
speech and expression beyond the limits
permissible under our Constitution for
however high or cherished that right it does
not go to pervert or harm society and the line
has to be drawn somewhere As was observed
in the same case:
"...... The test which we evolve must
obviously be of a general character but it
must admit of a just application from case to
case by indicating a line of demarcation not
necessarily sharp but sufficiently distinct to
distinguish between that which is obscene
and that which is not".-------"
A similar line has to be drawn in the case of
every topic in films considered unsuitable for
public exhibition or specially to children.
51. We may now illustrate our meaning how
even the items mentioned in the directions
may figure in films subject either to their
artistic merit or their social value over-
weighing their offending character. The task
of the censor is extremely delicate and his
duties cannot be the subject of an exhaustive
W.P.(C). No. 28288 of 2021
set of commands established by prior
ratiocination. But direction is necessary to
him so that he does not sweep within the
terms of the directions vast areas of thought,
speech and expression of artistic quality and
social purpose and interest. Our standards
must be so framed that we are not reduced to
a level where the protection of the least
capable and the most depraved amongst us
determines what the morally healthy cannot
view or read. The standards that we set for
our censors must make a substantial
allowance in favour of freedom thus leaving
a vast area for creative art to interpret life
and society with some of its foibles along
with what is good. We must not look upon
such human relationships as banned in toto
and for ever from human thought and must
give scope for talent to put them before
society. The requirements of art and literature
include within themselves a comprehensive
view of social life and not only in its ideal
form and the line is to be drawn where the
average man or moral man begins to feel
embarrassed or disgusted at a naked
portrayal of life without the redeeming touch
of art or genius or social value. If the
depraved begins to see in these things more
than what an average person would in much
the same way, as it is wrongly said, a
Frenchman sees a womans legs in
everything, it cannot be helped. In our
scheme of things ideas having redeeming
W.P.(C). No. 28288 of 2021
social or artistic value must also have
importance and protection for their growth.
Sex and obscenity are not always
synonymous and it is wrong to classify sex
as essentially obscene or even indecent or
immoral. It should be our concern, however,
to prevent the use of sex designed to play a
commercial role by making its own appeal.
This draws in the censors scissors. Thus
audiences in India can be expected to view
with equanimity the story of Qedipus son of
Latius who committed patricide and incest
`with his mother. When the seer Tiresias
exposed him, his sister Jocasta committed
suicide by hanging herself and Oedipus put
out his own eyes. No one after viewing these
episodes would think that patricide or incest
with ones own mother is permissible or
suicide in such circumstances or tearing out
ones own eyes is a natural consequence. And
yet if one goes by the letter of the directions
the film cannot be shown. Similarly scenes
depicting leprosy as a theme in a story or in a
documentary are not necessarily outside the
protection. If that were so Veerier Elwyns
Phulmat of the Hills or the same episode in
Henrysons Testament of Cressaid (from
where Verrier Elwyn borrowed the idea!
would never see the light of the day. Again
carnage and bloodshed may have historical
value - and the depiction of such scenes as
the sack of Delhi by Nardirshah may be
permissible, it handled delicately and as part
W.P.(C). No. 28288 of 2021
of an artistic portrayal of the confrontation
with Mohammad Shah Rangila. If Nadir
Shah made golgothas of skulls, must we
leave them out of the story because people
must be made to view a historical theme
without true history? Rape in all its
nakedness may be objectionable but V oltaires
Candide would be meaningless without
Cunegondes episode with the soldier and the
story of Lucrece could never be depicted on
the screen.
52. Therefore it is not the elements of rape
leprosy, sexual immorality which should
attract the censors scissors but how the
theme is handled by, the producer. It must
however, be remembered that the
cinematograph is a powerful medium and its
appeal is different. The horrors of war as
depicted in the famous etchings of Goya do
not horrify one so much as the same scenes
rendered in colour and with sound and
movement would do. We may view a
documentary on the erotic tableaux from our
ancient temples with equanimity or read the
Kamasutra but a documentary from them as
a practical sexual guide would be abhorrent.”
(Underlines supplied)
15.In Ranjit D Udeshi v. State of Maharashtra [AIR
1965 SC 881] , the Apex Court considered artistic freedom in
W.P.(C). No. 28288 of 2021
connection to a book 'Lady Chatterley's Lover'. It will be better
to extract paragraphs 23 and 29 of the above judgment.
23. It now remains to consider the book
Lady Chatterley's Lover. The story is simple.
A baronet, wounded in the war is paralysed
from the waist downwards. He married
Constance (Lady Chatterley) a little before
he joined up and they had a very brief
honeymoon. Sensing the sexual frustration
of his wife and their failure to have an heir
he leaves his wife free to associate with
other men. She first experiences with one
Michaelis and later with a game-keeper
Mellors in charge of the grounds. The first
over was selfish sexually, the other was
something of an artist. He explains to
Constance the entire mystery of eroticism
and they put it into practice. These are over a
dozen descriptions of their sexual
intimacies. The game-keeper’s speech and
vocabulary were not genteel. He knew no
Latin (which could be used to appease the
censors) and the human 'pudenda' and other
erogenous parts are freely discussed by him
and also named by the author in the
descriptions. The sexual congress each time
is described with great candidness and in
prose as tense as it is intense and of which
Lawrence was always a consummate master.
The rest of the story is a mundane one.
There is some criticism of the modern
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machine civilization and its enervating
effects and the production of sexually
inefficient men and women and this,
according to Lawrence, is the cause of
maladjustment of sexes and their
unhappiness.
29.We have dealt with the question at
some length because this is the first case
before this Court invoking the constitutional
guarantee against the operation of the law
regarding obscenity and the book is one
from an author of repute and the centre of
many controversies. The book is probably an
unfolding of his philosophy of life and of the
urges of the Unconscious but these are
unfolded in his other books also and have
been fully set out in his Psychoanalysis and
the- Unconscious and finally in the Fantasia
of the Unconscious. There is no loss to
society if there was a message in the book.
The divagations with sex are not a legitimate
embroidery but they are the only attractions
to the common man. When everything said
in its favour we find that in treating with sex
the impugned portions viewed separately
and also in the setting of the whole book
pass the permissible limits judged of from
our community standards and as there is no
social gain to us which can be said to
preponderate, we must hold the book to
satisfy the test we have indicated above.
(Underlines supplied)
W.P.(C). No. 28288 of 2021
16.In Raj Kapoo r and others v . State ( Delhi
Administration) and others [AIR 1980 SC 258] , the Apex
Court observed that social scientists and spiritual scientists will
broadly agree that man lives not alone by mystic squints, ascetic
chants, and austere abnegation but by luscious love of Beauty,
sensuous joy of companionship and moderate non-denial of
normal demands of the flush. It will be better to extract
paragraphs 15 to 17 of the above judgment.
“15.I am not persuaded that once a
certificate under the Cinematograph Act is
issued the Penal Code, pro tanto, will hang
limp. The Court will examine the film and
judge whether its public display, in the given
time and clime, so breaches public morals or
depraves basic decency as to offend the
penal provisions. Statutory expressions are
not petrified by time but must be up-dated
by changing ethos even as popular ethics are
not absolutes but abide and evolve as
community consciousness enlivens and
escalates. Surely, the satwa of society must
rise progressively if mankind is to move
towards its timeless destiny and this can be
guaranteed only if the ultimate value-vision
is rooted in the unchanging basics, Truth-
W.P.(C). No. 28288 of 2021
Goodness-Beauty, Satyam, Shivam,
Sundaram. The relation between Reality and
Relativity must haunt the court's evaluation
of obscenity, expressed in society's
pervasive humanity, not law's penal
prescriptions. Social scientists and spiritual
scientists will broadly agree that man lives
not alone by mystic, squints, ascetic chants
and austere abnegation but by luscious love
of Beauty, sensuous joy of companionship
and moderate non-denial of normal demands
of the flesh. Extremes and excesses
boomerang although some crazy artists and
film directors do practise Oscar Wilde's
observation: "Moderation is a fatal thing.
Nothing succeeds like excess".
16.All these add up to one conclusion that
finality and infallibility are beyond courts
which must interpret and administer the law
with pragmatic realism, rater than romantic
idealism or recluse extremism.
17.After all, Cohen's words, in Reason
and Law, are good counsel: "The law is not
a homeless, wandering ghost. It is a phase of
human life located in time and space."
(1) M.R. Cohen. Reason and Law 4(1950).”
17.In Samaresh Bose and another v. Amal Mitra and
W.P.(C). No. 28288 of 2021
another [AIR 1986 SC 967] , the Apex Court was considering
obscenity in books. It will be better to extract paragraph 34 of
the above judgment:
“34) We have read with great care. It is to be
remembered that Sarodiya Desh is a very
popular journal and is read by a large number
of Bengalies of both sexes and almost of all
ages all over India. This book is read by
teenagers, young boys, adolescents, grown-
up youngmen and elderly people. We are not
satisfied on reading the book that it could be
considered to be obscene. Reference to
kissing, description of the body and the
figures of the female characters in the book
and suggestions of acts of sex by themselves
may not have the effect of depraving,
debasing and encouraging the readers of any
age to lasciviousness and the novel on these
counts, may not be considered to be obscene.
It is true that slang and various
unconventional words have been used in the
book. Though there is no description of any
overt act of sex, there can be no doubt that
there are suggestions of sex acts and that a
great deal of emphasis on the aspect of sex in
the lives of persons in various spheres of
society and amongst various classes of
people, is to be found in the novel. Because
of the language used, the episodes in relation
to sex life narrated in the novel, appear
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vulgar and may create a feeling of disgust
and revulsion. The mere fact that the various
affairs and episodes with emphasis on sex
have been narrated in slang and vulgar
language may shock a reader who may feel
disgusted by the book does not resolve the
question of obscenity. It has to be
remembered that the author has chosen to
use such kind of words and language in
expressing the feelings, thoughts and actions
of Sukhen as men like Sukhen could indulge
in to make the whole thing realistic. It
appears that the vulgar and slang language
used have greatly influenced the decision of
the Chief Presidency Magistrate and also of
the learned Judge of the High Court. The
observations made by them and recorded
earlier go to indicate that in their thinking
there has been kind of confusion between
vulgarity and obscenity. A vulgar writing is
not necessarily obscene. Vulgarity arouses
a feeling of disgust and revulsion and also
boredom but does mot have the effect of
depraving, debasing and corrupting the
morals of any reader of the novel, whereas
obscenity has the tendency to deprave and
corrupt those whose minds are open to
such immoral influences. We may observe
that characters like Sukhen, Shikha, the
father and the brothers of Sukhen, the
business executives and others portrayed in
the book are not just figments of the author's
imagination. Such characters are often to be
W.P.(C). No. 28288 of 2021
seen in real life in the society. The author
who is a powerful writer has used his skill in
focusing the attention of the readers on such
characters in society and to describe the
situation more eloquently he has used
unconventional and slang words so that in
the light of the author's understanding, the
appropriate emphasis is there on the
problems. If we place ourselves in the
position of the author and judge the novel
from his point of view, we find that the
author intends to expose various evils and
ills pervading the society and to pose with
particular emphasis the problems which ail
and afflict the society in various spheres. He
has used his own technique, skill and choice
of words which may in his opinion, serve
properly the purpose of the novel. If we
place ourselves in the position of readers,
who are likely to read this book, and we must
not forget that in this class of readers there
will probably be readers of both sexes and of
all ages between teenagers and the aged, we
feel that the readers as a class will read the
book with a sense of shock, and disgust and
we do not think that any reader on reading
this book would become depraved, debased
and encouraged to lasciviousness. It is quite
possible that they come across such
characters and such situations in life and
have faced them or may have to face them in
life. On a very anxious consideration and
after carefully applying our judicial mind in
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making an objective assessment of the novel
we do not think that it can be said with
any assurance that the novel is obscene
merely because slang and unconventional
words have been used in the book in which
there have been emphasis on sex and
description of female bodies and there are
the narrations of feelings, thoughts and
actions in vulgar language. Some portions
of the book may appear to be vulgar and
readers of cultured and refined taste may feel
shocked and disgusted. Equally in some
portions, the words used and description
given may not appear to be in proper taste. In
some places there may have been an
exhibition of bad taste leaving it to the
readers of experience and maturity to draw
the necessary inference but certainly not
sufficient to bring home to the adolescents
any suggestion which is depraving or
lascivious. We have to bear in mind that the
author has written this novel which came to
be published in the Sarodiya Desh for all
classes of readers and it cannot be right to
insist that the standard should always be for
the writer to see that the adolescent may not
be brought into contact with sex. If a
reference to sex by itself in any novel is
considered to be obscene and not fit to be
read by adolescents, adolescents will not be
in a position to read any novel and will have
to read books which are purely religious. We
are, therefore, of the opinion that the Courts
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below went wrong in considering this novel
to be obscene. We may observe that as on our
own appreciation of the novel, we are
inclined to take a view different from the
view taken by the Courts below, we have
taken the benefit of also considering the
evidence given in this case by two eminent
personalities in the literary field for proper
appreciation and assessment by us. It has
already been held by this Court in two earlier
decisions which we have already noted that
the question whether a particular book is
obscene or not, does not altogether depend
on oral evidence because it is duty of the
Court to ascertain whether the book offends
the provisions of S. 292 I.P.C. but it may be
necessary if it is at all required, to rely to a
certain extent on the evidence and views of
leading litterateurs on that aspect particularly
when the book is in a language with which
the court is not conversant. It is indeed a
matter of satisfaction for us that the views
expressed in course of their evidence by the
two eminent persons in the literary field are
in accord with the views taken by us.”
(Underlines and emphasis supplied).
18. The Apex Court observed that vulgar writing is not
necessarily obscene. Vulgarity arouses a feeling of disgust and
revulsion and also boredom but does not have the effect of
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depraving, debasing and corrupting the morals of any reader of a
novel.
19.In Odyssey Communications Pvt. Ltd. v.
Lokvidayan Sanghatana and others [AIR 1988 SC 1642] , the
Apex Court considered the exhibition of a serial 'Honi AnHoni',
and observed like this:
“7.It was not the case of the
petitioners in the Writ Petition that the
exhibition of serial 'Honi-Anhoni' was in
contravention of any specific law or
direction issued by the Government. They
had not alleged that the Doordarshan had
shown any undue favour to the appellant and
the sponsoring institutions resulting in any
financial loss to the public exchequer. The
objection to the exhibition of the film had,
however, been raised by them on the basis
that it was likely to spread false or blind
beliefs amongst the members of the public.
They had not asserted any right conferred on
them by any statute or acquired by them
under a contract which entitled them to
secure an order of temporary injunction
against which this appeal is filed. The
appellant had denied that the exhibition of
the serial was likely to affect prejudicially
the well-being of the people. The Union of
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India and the Doordarshan have pleaded that
the serial was being telecast after following
the prescribed procedure and taking
necessary precaution. In such a situation, the
High Court should not have immediately
proceeded to pass the interim order of
injunction. It was no doubt true that the 12th
episode was to be telecast on 14th April,
1988 and the 13th episode was to be telecast
on 21st April, 1988. If the petitioners in the
writ petition had felt, as they had alleged in
the course of the petition, that all the
episodes in the serial were offensive they
could have approached the High Court as
early as possible within the first two or three
weeks after the commencement of the
exhibition of the serial. But they waited till
the exhibition of the 11th episode of the
serial was over and filed the petition only in
the second week of April, 1988. They had
not produced any material apart from their
own statements to show that the exhibition
of the serial was prima facie prejudicial to
the community. The High Court overlooked
that the issue of an order of interim
injunction in this case would infringe a
fundamental right of the producer of the
serial. In the absence of any prima facie
evidence of grave prejudice that was likely
to be caused to the public generally by the
exhibition of the serial it was not just and
proper to issue an order of temporary
injunction. We are not satisfied that the
W.P.(C). No. 28288 of 2021
exhibition of the serial in question was likely
to endanger public morality. In the
circumstances of the case the balance of
convenience lay in favour of the rejection of
the prayer for interim injunction. What we
have stated here is sufficient to dispose of
this appeal. The other questions of law
which may arise in a case of this nature will
have to be dealt with in an appropriate case.
We express no opinion on those questions in
this case. We are, however, of the opinion
that the High Court was in error in the
present case in issuing the interim order of
injunction against which this appeal is filed.
We, therefore, allow this appeal and set aside
the interim order of injunction passed by the
High Court on the 13th of April, 1988. There
is, however, no order as to costs.”
20.In Bobby Art International v. Om Pal Singh Hoon
and others [AIR 1996 SC 1846], the Apex Court considered a
film named 'Bandit queen'. The case was filed to quash the
certificate of the exhibition of the said film and restrain its
vision in India. The Apex Court after considering almost all the
judgments, till then, observed that the artistic expressions and
creative freedom are not to be unduly curbed, the film must be
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judged in its entirety from a point of view of its overall impact.
It must also be judged in the light of the period depicted and the
contemporary standards of the people to whom it relates. But it
must not deprive the morality of the audience. It will be
beneficial to extract paragraph 20 to 27 of the above judgment.
“20. The Guidelines aforementioned
have been carefully drawn. They required the
authorities concerned with film certification
to be responsive to the values and standards
of society and take note of social change.
They are required to ensure that "artistic
expression and creative freedom are not
unduly curbed." The film must be "judged in
its entirety from the point of view of its over-
all impact". It must also be judged in the
light of the period depicted and the
contemporary standards of the people to
whom it relates, but it must not deprave the
morality of the audience. Clause 2 requires
that human sensibilities are not offered by
vulgarity, obscenity or depravity, that scenes
degrading or denigrating women are not
presented and scenes of sexual violence
against women are avoided, but if such
scenes are germane to the theme, they be
reduced to a minimum and not particularised.
21. The guidelines are broad standards.
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They cannot be read as one would read a
statute. Within the breadth of the their
parameters the certification authorities have
discretion. The specific sub-clauses of
Clause (2) of the guidelines cannot
overweigh the sweep of clauses 1 and 3 and,
indeed, of sub clause (xi) of Clause (2).
Where the theme is of social relevance, it
must be allowed to prevail. Such a theme
does not offend human sensibilities nor extol
the degradation or denigration of women. It
is to this end that sub-clause (ix) of Clause 2
permits scenes of sexual violence against
women, reduced to a minimum and without
details, if relevant to the theme. What that
minimum and lack of details should be is left
to the good sense of the certification
authorities, to be determined in the light of
the relevance of the social theme of the film.
22. 'Bandit Queen' is the story of a
village child exposed from an early age to
the brutality and lust of man. Married off of a
man old enough to be her father she is beaten
and raped. The village boys make advances
which she repulses; but the village panchayat
finds her guilty of the enticement of a village
boy because he is of high caste and she has
to leave the village. She is arrested and, in
the police station, filthily abused. Those
stand bail for her do so to satisfy their lust.
She is kidnapped and raped. During an act of
brutality the rapist is shot dead and she finds
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an ally in her rescuer. With his assistance she
beats up her husband, violently. Her rescuer
is shot dead by one whose advance she has
spurned. She is gang-raped by the rescuer's
assailant and his accomplice and they
humiliate her in the sight of the village; a
hundred man stand in a circle around the
village well and watch the humiliation, her
being stripped naked and walked around the
circle and then made to draw water. And not
one of the villagers helps her. She burns with
anger, shame and the urge for vengeance.
She gets it, and kills many Thakurs too.
23. It is not a pretty story. There are no
syrupy songs or pirouetting round trees. It is
the serious and sad story of a woman turning:
a village born female child becoming a
dreaded dacoit. An innocent who turns into a
vicious criminal because lust and brutality
have affected her psyche so. The film levels
an accusing finger at members of society
who had tormented Phoolan Devi and driven
her to become a dreaded dacoit filled with
the desire to revenge.
24. It is in this light that the individual
scenes have to be viewed.
First, the scene where she is humiliated,
stripped naked, paraded, made to draw water
from the well, within the circle of a hundred
men. The exposure of her breasts and
genitals to those men is intended by those
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who strip her to demean her. The effect of so
doing upon her could hardly have been better
conveyed than by explicitly showing the
scene. The object of doing so was not to
titillate the cinemagoer's lust but to arouse in
him sympathy for the victim and disgust for
the perpetrators. The revulsion that the
Tribunal referred to was not at Phoolan
Devi's nudity but at the sadism and
heartlessness of those who had stripped her
naked to rob her of every shred of dignity.
Nakedness does not always arouse the baser
instinct. The reference by the Tribunal to the
film 'Schindler's List was apt. There is a
scene in it of rows of naked men and women,
shown frontally, being led into the gas
chambers of a Naxi concentration camp. Not
only are they about to die but they have been
stripped in their last moments of the basic
dignity of human beings. Tears are a likely
reaction; pity, horror and a fellow feeling of
shame are certain, except in the pervert who
might be aroused. We do not censor to
protect the pervert or to assuage the
susceptibilities of the over-sensitive. 'Bandit
Queen' tells a powerful human story and to
that story the scene of Phoolen Devi's
enforced naked parade is central. It helps to
explain why Phoolen Devi became what she
did: her rage and vendetta against the society
that had heaped indignities upon her.
24A. The rape scene also helps to
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explain why Phoolen Devi became what she
did. Rape is crude and its crudity is what the
rapist's bouncing bare posterior is meant to
illustrate. Rape and sex are not being
glorified in the film. Quite the contrary. It
shows what a terrible, and terrifying, effect
rape and lust can have upon the victim. It
focuses on the trauma and emotional turmoil
of the victim to evoke sympathy for her and
disgust for the rapist.
25. Too much need not, we think, be
made of a few swear words the like of
which can be heard every day in every
city, town and village street. No adult
would be tempted to use them because
they are used in this film.
26. In sum, we should recognise the
message of a serious film and apply this test
to the individual scenes thereof : do they
advance the message ? If they do they
should be left alone, with only the caution of
an 'A' certificate. Adult Indian citizens as a
whole may be relied upon to comprehend
intelligently the message and react to it, not
to the possible titillation of some particular
scene.
27. A film that illustrates the
consequences of a social evil necessarily
must show that social evil. The guidelines
must be interpreted in that light. No film
that extols the social evil or encourages it is
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permissible, but a film that carries the
message that the social evil is evil cannot be
made impermissible on the ground that it
depicts the social evil. At the same time, the
depiction must be just sufficient for the
purpose of the film. The drawing of the line
is best left to the sensibilities of the expert
Tribunal. The Tribunal is a multi-member
body. It is comprised of persons who gauge
public reactions to films and, except in cases
of stark breach of guidelines should be
permitted to go about its task.”
[Underline and emphasis supplied]
21.In the light of the above decisions of the apex court,
it is clear that a film is to be assessed based on its entirety.
Whether the dialogues of a film correlate to the story in the film
is the point to be decided. The film is to be considered as a
whole in a fair, free and liberal spirit without dwelling too much
upon isolated dialogues or strong words used in the film here
and there. The film is a creation of an artist. The filmmaker is
trying to depict a story and the only point to be looked into is
whether the dialogues in the film are within the four corners of
the story and whether the dialogues in the movie are relevant in
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the facts and circumstances of that story. If this Court starts to
interfere with the exhibition of films, saying that some dialogues
in a movie are obscene or some dialogues are foul language,
there will be no end to it. A film is an exhibition of a story by
the filmmaker. He is entitled to use his artistic freedom. There
is no compulsion to view this film by each and every citizen of
this country. Moreover, the film in question was uploaded to
OTT platforms. In OTT platform, the view is restricted to the
subscribers of the 2nd respondent. The only Rule that gives some
guidelines in the OTT platform movies is Rule 2021. The
authorities have no case that there is any violation of the
provisions of Rule 2021 in this case. In such circumstances, this
Court can not direct the 2nd respondent to remove the movie
from the OTT platform. The Apex Court in K.A. Abbas's case
(supra) observed that it is not the elements of rape, leprosy,
sexual immorality which should attract the censor's scissors, but
how the theme is handled by the producer. The Apex Court
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observed that the task of the censor is extremely delicate and his
duty cannot be subject to an exhaustive set of commands
established by the prior ratiocination. But the direction is
necessary to him so that he does not sweep within the terms of
the directions vast areas of thought, speech, and expressions of
artistic quality and social purpose and interest. In Ranjit's case
(supra), the Apex Court considered the book 'Lady Chatterley's
Lover'. The story is narrated in paragraph 23 of th at judgment.
A baronet, wounded in the war is paralysed from the waist
downwards. He married Constance (Lady Chatterley) a little
before he joined up and they had a very brief honeymoon.
Sensing the sexual frustration of his wife and their failure to
have an heir he leaves his wife free to associate with other men.
She first experiences with one Michaelis and later with a game-
keeper Mellors in charge of the grounds. The first lover was
selfish sexually, the other was something of an artist. He
explains to Constance the entire mystery of eroticism and they
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put it into practice. These are over a dozen descriptions of their
sexual intimacies. The game-keeper's speech and vocabulary
were not genteel. He knows no Latin and the human 'pudenda'
and other erogenous parts are freely discussed by him and also
named by the author in the descriptions. The sexual congress
each time is described with great candidness and in prose as
tense as it is intense and of which Lawrence was always a
consummate master. The rest of the story is a mundane one. The
Apex Court after narrating the story as stated above observed
that '...we find that in treating with sex the impugned portions
viewed separately and also in the setting of the whole book pass
the permissible limits judged of from our community standards
and as there is no social gain to us which can be said to
preponderate, we must hold the book to satisfy the test we have
indicated above'. Similarly in Raj Kpoor's case (supra) also,
the Apex Court observed that, social scientists and spiritual
scientists will broadly agree that man lives not alone by mystic,
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squints, ascetic chants, and austere abnegation but by luscious
love of Beauty, sensuous joy of companionship and moderate
non-denial of normal demands of the flesh. The Apex Court
quoted Cohen's words, in Reason and Law, are good counsel:
"The law is not a homeless, wandering ghost. It is a phase of
human life located in time and space." In Samaresh Bose's case
(supra), the Apex Court observed that the responsibility to
decide the question of obscenity rest essentially on the Court.
The Apex Court was considering a novel named 'Prajapati'
which according to the aggrieved party in that case, contains
obscene matters. The Apex Court after considering the contents
of the book observed that the book is read by teenagers, young
boys, adolescents, grown-up young men, and elderly people.
After going through the book, the Apex Court observed that 'we
are not satisfied on reading the book that it could be considered
to be obscene. The Apex Court observed that reference to
kissing, description of the body and the figures of the female
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characters in the book, and suggestions of acts of sex by
themselves may not have the effect of depraving, debasing, and
encouraging the readers of any age to lasciviousness and the
novel on these counts, may not be considered to be obscene.
The Apex Court also observed that 'it is true that slang and
various unconventional words have been used in the book. But
though there is no description of any over act of sex, there can
be no doubt that there are suggestions of sex acts and that a great
deal of emphasis on the aspect of sex in the lives of persons in
various spheres of society and amongst various classes of people
is to be found in the novel.’ But the Apex Court observed that
because of the language used, the episodes in relation to sex life
narrated in the novel, appear vulgar and may create a feeling of
disgust and revulsion. But the Apex Court again observed that
the mere fact that the various affairs and episodes with emphasis
on sex have been narrated in slang and vulgar language may
shock a reader who may feel disgusted by the book does not
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resolve the question of obscenity. The Apex Court held that a
vulgar writing is not necessarily obscene. Vulgarity arouses a
feeling of disgust and revulsion and also boredom but does not
have the effect of depraving, debasing and corrupting the morals
of any reader of the novel, whereas obscenity the tendency to
deprave and corrupt those whose minds are open to such
immoral observe that characters.
22.In Boby Art International's case (supra), the Apex
Court was considering a film “Bandit Queen” and the prayer to
restrain its exhibition in India. After narrating the story in the
film in detail, the Apex Court observed that artistic expression
and creative freedom should not be unduly curbed. The Apex
Court observed that the film must be judged in its entirety from
the point of view of its overall impact. "Bandit Queen" is a story
of a village child exposed from an early age to the brutality and
lust of man. She married a man old enough to be her father. She
was beaten and raped. The village boys make advances which
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she repulses: but the village panchayat finds her guilty of the
enticement of a village boy because he is of high caste and she
has to leave the village. She was arrested and, in the police
station, filthily abused. She was kidnapped and raped. During
an act of brutality, the rapist is shot dead and she finds an ally in
her rescuer. With his assistance, she beats up her husband
violently. Her rescuer is shot dead by one whose advance she
has spurned. She is gang raped by the rescuer’s assailant and his
accomplice and they humiliate her in the sight of the village. A
hundred men stand in a circle around the village well and watch
the humiliation, her being stripped naked and walked around the
circle and then made to draw water. No one of the villagers
helped her. She burns with anger, shame, and the urge for
vengeance. She gets it, and kills many Thakurs too. This is the
crux of the story of “Bandit Queen” narrated in the judgment.
After narrating the story, the Apex Court observed that ‘too
much need not, we think, be made of a few swear words the like
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of which can be heard every day in every city, town and village
street. No adult would be tempted to use them because they are
used in the film.’ The Apex Court said that, we should recognise
the message of a serious film and apply this test to the individual
scenes thereof.
23.In the light of the above principle, this Court has to
consider the film "Churuli". As narrated in the report submitted
by the Special Team constituted by the additional 7th respondent,
which includes three women members, the plot of the movie
"Churuli" is the life of a group of Fugitives from law residing in
deep forests which is highly inaccessible to the outside world.
The inmates of the imaginary world are rough and tough in the
character who are braving the odds of nature and are in constant
dread of apprehension by law. Their living conditions are
meagre and life is an everyday struggle for existence. They face
danger from wildlife and other perils of forest life. The Special
Team observed that it is a daily struggle for existence for the
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characters in the movie. The centre of action in the movie is an
illegal Arrack brewing centre deep inside the forest. The
characters in the movie due to their living conditions and
circumstances are forced to speak in rough and tough language
with expletives and cuss words in their day to day interactions.
The filmmaker used a language, which, according to his artistic
view, is used by the people in “Churuli”. In order to make the
movie believable and for the audience to fully appreciate the life
and culture of the character, the filmmakers use such languages.
The persons living in such conditions cannot be expected to
speak in a decent language used by people residing in a normal
area. Nobody can dictate a filmmaker to use only decent
language in his film and it is his artistic discretion to choose the
language but of course with reasonable restriction mentioned in
Article 19(2) of the constitution. The additional 7th respondent
clearly stated in his statement that there is no statutory violation
of any rules and no criminal offence is made out in exhibiting
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the movie “Churuli”. In such circumstances, this Court cannot
direct any of the respondents to remove the movie “Churuli”
from OTT platform. Moreover, there is no proper pleading in
the writ petition. The prayers in the writ petition are vague. A
reading of the writ petition itself will show that the intention of
the petitioner is only publicity. Even the relevant rule which is
applicable in an OTT platform movie is not referred to in the
writ petition. Simply making an observation that the movie
contains foul language or obscene language, this Court cannot
direct to remove the movie from OTT platform. I have a strong
doubt that the petitioner herself has not seen the movie in full
with patience before filing this writ petition. Therefore,
according to me, no relief can be granted in this writ petition.
24.Before parting with this case, I am constrained to
make certain observations. Social media is now popular among
the citizens. Anybody can make any comments on social media
because freedom of speech and expression is a fundamental
W.P.(C). No. 28288 of 2021
right. But people are making comments on social media without
properly understanding the facts. I am sure that most of the
people who are making comments against this film namely
"Churuli" have not seen the movie in full. Probably they may be
relying on certain video clips received on Whatsapp, Facebook,
Twitter, etc. to make comments. There is indeed freedom of
speech and expression to every citizen as per Article 19 (1)(a) of
the Constitution of India. But the above types of critics will be
doing an injustice to a filmmaker by making comment about a
film and make it an unpopular one without watching his movie
in full. I can understand a criticism about a movie after watching
the movie in full. But, without watching the movie, making
comments alleging that it is a bad film, will hurt the filmmakers
and artists. They are also human beings. The ir work may be a
good artistic creation or sometimes it may not be a good work.
But before making comments against it or in favour of it , it is
the duty of the citizens to watch their creation. I am told that
W.P.(C). No. 28288 of 2021
now there is a phrase in social media about a new language
called “Churuli language”. I am sure that the people who created
this "Churuli language" have not seen the film "churuli” with
patience and with the understanding that it is a creation of an
artist. The artists are also part of our society. They create their
work spending days and months. Making wrong comments on
social media about an artistic creation, e ven without watching
the creation is to be deprecated . It is the duty of the 7th
respondent and his subordinates to protect the artistic freedom of
a filmmaker by initiating appropriate proceedings including
criminal cases, if any criminal offence is made out in such
situation. The 7th respondent will give strict directions to his
subordinates to take appropriate action in accordance to law, if
such complaints are received.
25.Another trend is about interpreting orders of a court
of law. When this Court passed an order on 07.01.2022 which is
extracted in paragraph- 6 of this judgment, the same was
W.P.(C). No. 28288 of 2021
published in almost all print and visual media correctly. But I
am told that the social media interpreted the said order in such a
way that this Court directed the Police to find out whether there
is foul language in “Churuli” film! If this is correct, it is clear
that the same is even without reading the order passed by this
Court. This Court only observed that, before deciding this issue
it will be beneficial to get the opinion of the State Police
Department about the pleadings in the writ petition regarding the
alleged statutory violation of law s enacted to ensure public
order, decency or morality. This court also directed to find out
whether there is any criminal offence made as alleged in the writ
petition. This Court never directed the Police to find out whether
foul or obscene language is used in "Churuli" film. Th e contents
is correctly published in print and visual media. But I am told
that social media started to create a story that High Court
directed the Police to find out whether there is foul language in
"Churuli" film. This is how social media forum is misused by a
W.P.(C). No. 28288 of 2021
section of society. I am not blaming the entire community who
are using social media and most of them are using the social
media forum in a useful manner. But a minority is misusing the
same.
26.Similarly when a Court delivers a judgment in a case,
even before the judgment reaches the public, the criticism starts.
It is surprising to see that, few lawyers are making comments
about judgments of court of law even without reading the
judgments. Some of the lawyers will start to comment about a
judgment delivered by a court at 10.15 am or at 11 am
immediately after the judgment is pronounced. The Bench and
Bar are two sides of a coin. The lawyers should be the
mouthpiece of the judiciary. A fair criticism about a judgment is
always acceptable. But the criticism can be started only after
reading the judgment. Such a culture is to be developed for
which the lawyer community has got pivotal role. It is now a
trend for a minority of the lawyers' community to make
W.P.(C). No. 28288 of 2021
comments about a judgment even without reading the
judgments. If media people ask a lawyer at 11.05 am about a
judgment delivered at 11 am, the lawyer will say that ‘I have not
read the judgment, but from the available news I can make
certain comments’. How can a lawyer make such comments
without reading the judgment? He can simply say that I will
read the judgment and will come back for making comments if
necessary. If such a stand is taken, no media people will say that
he should make comments even without reading the judgment.
The lawyers should show the path to the society about the
manner in which a judgment of a court is to be dealt with and
how a judgment is to be criticized if it deserves such criticism.
They can read the judgment and criticize the judgment if they
want and of course not the judges who wrote the judgment. If
the lawyers take a stand that they will make comments about a
judgment of a court of law only after reading the judgment, that
will go a long way because society will accept the stand of
W.P.(C). No. 28288 of 2021
lawyers because they are respectable people in the society. If the
lawyers started to comment about a judgment without reading a
judgment, nobody can blame the poor citizens who make
comments about judgment and judges on social media. I make it
clear that such immature comments are not made by all the
lawyers. But it is being done only by a handful of lawyers. At
least hereafter, the lawyers should take an oath that they will
make comments in print media, visual media, and social media
about a judgment of a court of law only after reading the
judgment. As I said earlier, the Bench and bar are two sides of a
coin. The lawyers should be the mouthpiece of the judiciary.
They should protect the interest of the judiciary. The judges may
come and go. But Judiciary should stand. The lawyers are part
and parcel of the judiciary. Anyway I leave it to the conscience
of all lawyers.
27.In the light of the facts narrated in the earlier
paragraphs, no relief can be granted to the petitioner in this case.
W.P.(C). No. 28288 of 2021
The petitioner is a lawyer. The petitioner is coming before this
Court with a writ petition without proper pleadings and even
without a proper prayer. The prayer in the writ petition itself is
vague. The statutory provisions applicable in this situation are
not dealt with in this writ petition. It is a case to be dismissed
with cost. But, taking a lenient view, I refrain myself.
Therefore the writ petition is dismissed.
das/DM/jv
W.P.(C). No. 28288 of 2021
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While dismissing a plea against the Malayalam movie Churuli for its alleged use of foul language, the Kerala High Court on Thursday observed that lawyers ought to read judgements before they criticise the same on mainstream or social media [Peggy Fen v Central Board of Film Certification & Ors.]
Justice PV Kunhikrishnan said that lawyers should be an example for the rest of the citizens on how to criticise judgments if such criticism is warranted.
"Lawyers should show the path to the society about the manner in which a judgment of a court is to be dealt with and how a judgment is to be criticized if it deserves such criticism. They can read the judgment and criticize the judgment if they want and of course not the judges who wrote the judgment. ...If the lawyers started to comment about a judgment without reading a judgment, nobody can blame the poor citizens who make comments about judgment and judges on social media," the Court said in its order.
The Judge noted that most of the criticism against the movie seemed to come from persons who had not watched the movie in its entirety, when he made the allegory to lawyers criticising judgments of the Court without reading the same in its entirety.
"Similarly when a Court delivers a judgment in a case, even before the judgment reaches the public, the criticism starts. It is surprising to see that, few lawyers are making comments about judgments of court of law even without reading the judgments. Some of the lawyers will start to comment about a judgment delivered by a court at 10.15 am or at 11 am immediately after the judgment is pronounced," the single-Judge said.
The Court made its clear that its comments are not towards the Bar as a whole but rather towards a small section of lawyers, and that all members of the Bar must faithfully fulfill their role as mouthpieces of the judiciary.
"At least hereafter, the lawyers should take an oath that they will make comments in print media, visual media, and social media about a judgment of a court of law only after reading the judgment. As I said earlier, the Bench and bar are two sides of a coin. The lawyers should be the mouthpiece of the judiciary. They should protect the interest of the judiciary. The judges may come and go. But Judiciary should stand. The lawyers are part and parcel of the judiciary. Anyway I leave it to the conscience of all lawyers," the order noted.
The behavior of social media denizens was also highlighted by the Court in its judgement. Citizens criticising a movie or any work of art have a duty to do their due diligence and watch the same before exercising their right to freedom of speech and expression under Article 19(1)(a) of the Constitution, the Court said.
"Artists are also part of our society. They create their work spending days and months. Making wrong comments on social media about an artistic creation, even without watching the creation is to be deprecated," the Court noted as it observed that a new phrase "Churuli Language" was used widely on social media.
The plea before the Court had sought the removal of Malayalam movie Churuli, directed by Lijo Jose Pellissery, from the OTT platform SonyLiv for its alleged excessive use of foul language.
The Court had previously remarked that it cannot interfere with the artistic freedom of a film-maker unless there is any violation of laws. It had said that it would be beneficial if a team of police officers from the State Police watches the movie to ascertain if there are any such violations.
However, the same was misinterpreted by many on social media, the Court noted.
"This Court never directed the Police to find out whether foul or obscene language is used in "Churuli" film. The contents is correctly published in print and visual media. But I am told that social media started to create a story that High Court directed the Police to find out whether there is foul language in "Churuli" film. This is how social media forum is misused by a section of society," the Court said.
The State Police team had found no violations of any existing statutes, and no criminal offence.
The Court found that the pleadings in the writ petition were vague, and that as per the Information Technology (Intermediary Guidelines) Rules, 2021, the petitioner had an effective alternative remedy of grievance redressal.
Therefore, it dismissed the petition.
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Appeal No. 761 of 1957.
Appeal by special leave from the judgment and order dated February 24, 1955, of the former Bombay High Court in I.T.R. 48/X of 1954.
Hardayal Hardy and D. Gupta, for the appellant.
N. A. Palkhivala and I. N. Shroff, for the respondent.
November 17.
The Judgment of the Court was delivered by SHAH, J.
The Income Tax Appellate Tribunal, Bombay Bench "A", referred under section 66(1) of the Indian Income Tax Act, 1922 hereinafter referred to as the Act the following question: "Whether the sum of Rs. 15,608 should have been included in the assessee Company 's "profit" for the purpose of determining whether the payment of a larger dividend than that declared by it would be unreasonable ?" The High Court answered the question in the negative.
Against the order of the High Court, with special leave under article 136 of the Constitution, this appeal is preferred.
M/s. Bipinchandra Maganlal & Co., Ltd. hereinafter referred to as the Company is registered under the Indian Companies Act, The Company is one in 495 which the public are not substantially interested within the meaning of section 23A Explanation of the Act.
Its paid up capital at the material time was Rs. 20,800 made up as follows: 20 shares of Rs. 50 each fully paid up and 1980 shares of Rs. 50 each, Rs. 10 being paid up per share.
In December 1945, the Company purchased certain machinery for Rs. 89,000 and sold it sometime in March, 1947, for the price for which it was originally purchased.
In the books of account of the Company, the written down value of the machinery in the year of account 1946 47 (April 1, 1946 to March 31, 1947) was Rs. 73,392.
The trading profits of the Company as disclosed by its books of account for the year 194647 were Rs. 33,245.
At the General Meeting held on October 21, 1947.
the Company declared a dividend of Rs. 12,000 for the year of account.
In assessing tax for the year of assessment 1947 48, the Income Tax Officer computed the assessable income of the Company for the year of account 1946 47 at Rs. 48,761 after adding back to the profit of Rs. 33,245 returned by the Company, Rs. 15,608 realised in excess of the written down value of the machinery sold in March, 1947.
The Income Tax Officer passed an order under section 23A of the Act that Rs. 15,429 (being the undistributed portion of the assessable income of the Company as reduced by taxes payable) shall be deemed to have been distributed as dividend amongst the shareholders as at the date of the General Meeting, and the proportionate share of each shareholder shall be included in his total income.
Appeals preferred against his order to the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal proved unsuccessful, but the Appellate Tribunal at the instance of the Company referred the question set out hereinbefore to the High Court at Bombay under a. 66(1) of the Act.
Section 23A(1) of the Act as it stood at the relevant time (in so far as it is material) was as follows: "Where the Income Tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company upto the end 496 of the sixth month after its accounts for that previous year are laid before the company in general meeting are less than 60% of the assessable income of the company of that previous year, as reduced by the amount of income tax and super tax payable by the company in respect thereof, he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profit made, the payment of a dividend or a larger dividend than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the undistributed portion of the assessable income of the company of that previous year as computed for income tax purposes and reduced by the amount of income tax and super tax payable by the company in respect thereof shall be deemed to have been distributed as dividends amongst the share holders as at the date of the general meeting aforesaid. . .
Clearly, by section 23A, the Income Tax Officer is required to pass an order directing that the undistributed portion of the assessable income of any company (in which the public are not substantially interested) shall be deemed to have been distributed as dividends amongst the shareholders if he is satisfied that (i) the company has not distributed 60% of its assessable income of the previous year reduced by the Income tax and super tax payable, (ii) unless payment of a dividend, or a larger dividend than that declared, having regard to (a) losses incurred by the company in the earlier years or (b) the smallness of the profits made in the previous year, be unreasonable.
The total assessable income of the Company for the year of account was Rs. 48,761 and the tax payable thereon was Rs. 21,332: 60% of Rs. 27,249 (assessable income reduced by the income tax and super tax due) exceeded the dividend declared by Rs. 4,458.
The first condition to the exercise of jurisdiction by the Income Tax Officer under section 23A was therefore indisputably fulfilled.
But the Income Tax Officer had 497 still to be satisfied whether having regard to the smallness of the profit (there is no evidence in this case that loss was incurred by the Company in earlier years), it would be unreasonable to distribute dividend larger than the dividend actually declared.
The Income Tax Officer did not expressly consider this question: he rested his decision on the rejection of the contention raised by the Company that the difference between the price of the machinery realised by sale and the written down value in the year of account could not be taken into account in passing an order under section 23A.
He, it seems, assumed that if that difference be taken into account, distribution of larger dividend was not unreasonable, and the Tribunal proceeded upon the footing that the assumption was correctly made.
Counsel for the Revenue submits in support of the appeal that the expression " smallness of profit " means no more than smallness of the assessable income, and that in any event, in the computation of profits, the amount realised by sale of the machinery in the year of account in excess of its written down value was liable to be included in considering whether the condition relating to "smallness of profit" was fulfilled.
At the material time, section 2(6C) of the Act defined "income" as inclusive amongst others of any sum deemed to be profits under the second proviso to cl.
(vii) of sub section
(2) of section 10.
By section 10, in the computation of profits or gains of an assessee under the head "Profits and gains of business, profession or vocation" carried on by him, the amount by which the written down value of any building, machinery or plant which has been sold, discarded or demolished.
or destroyed exceeds the amount for which the building, machinery or plant is actually sold or its scrap value is to be allowed as a deduction.
This allowance is however subject to an exception prescribed by the second proviso to el.
(vii) sub section
(2) of section 10 that where the amount for which any building, machinery or plant is sold exceeds the written down value, so much of the 63 498 excess as does not exceed the difference between the original cost and the written down value shall be deemed to be profit of the previous year in which the sale took place.
In computing the profits and gains of the Company under section 10 of the Act, for the purpose of assessing the taxable income, the difference between the written down value of the machinery in the year of account and the price at which it was sold (the price not being in excess of the original cost) was to be deemed to be profit in the year of account, and being such profit, it was liable to be included in the assessable income in the year of assessment.
But this is the result of a fiction introduced by the Act.
What in truth is a capital return is by a fiction regarded for the purposes of the Act as income.
Because this difference between the price realized and the written.
down value is made chargeable to income tax, its character is not altered, and it is not converted into the assessee 's business profits.
It does not reach the assessee as his profits: it reaches him as part of the capital invested by him, the fiction created by section 10(2)(vii) second proviso notwithstanding.
The reason for introducing this fiction appears to be this.
Where in the previous years, by the depreciation allowance, the taxable income is reduced for those years and ultimately the asset fetches on sale an amount exceeding the written down value, i.e., the original cost less depreciation allowance, the Revenue is justified in taking back what it had allowed in recoupment against wear and tear, because in fact the depreciation did not result.
But the reason of the rule does not alter the real character of the receipt.
Again, it is the accumulated depreciation over a number of years which is regarded as income of the year in which the asset is sold.
The difference between the written down value of an asset and the price realized by sale thereof though not profit earned in the conduct of the business of the assessee is nationally regarded as profit in the year in which the asset is sold, for the purpose of taking back what had been allowed in the earlier years.
A company normally distributes dividends out of its business profits and not out of its assessable income.
499 There is no definable relation between the assessable income and the profits of a business concern in a commercial sense.
Computation of income for purposes of assessment of income tax is based on a variety of artificial rules and takes into account several fictional receipts, deductions and allowances.
In considering whether a larger distribution of dividend would be unreasonable, the source from which the dividend is to be distributed and not the assessable income has to be taken into account.
The Legislature has not provided in section 23A that in considering whether an order directing that the undistributed profits shall be deemed to be distributed, the smallness of the assessable income shall be taken into account.
The test whether it would be unreasonable to distribute a larger dividend has to be adjudged in the light of the profit of the year in question.
Even though the assessable income of a company may be large, the commercial profits may be so small that compelling distribution of the difference between the balance of the assessable income reduced by the taxes payable and the amount distributed as dividend would require the company to fall back either upon its reserves or upon its capital which in law it cannot do.
For instance, in the case of companies receiving income from property, even though tax is levied under section 9 of the Act on the bona fide annual value of the property, the actual receipts may be considerably less than the annual value and if the test of reasonableness is the extent of the assessable income and not the commercial profit, there may frequently arise cases in which companies may have to sell off their income producing assets.
The Legislature has deliberately used the expression "smallness of profit" and not "smallness of assessable income" and there is nothing in the context in which the expression "smallness of profit" occurs which justifies equation of the expression "profit" with "assessable income".
Smallness of the profit in section 23A has to be adjudged in the light of commercial principles and not in the light of total receipts, actual or fictional.
This view appears to have been taken by the High Courts in India without any dissentient 500 opinion, see Sir Kasturchand Ltd. vs Commissioner of Income Tax, Bombay City (1), Ezra Proprietary Estates Ltd. vs Commissioner of Income Tax, West Bengal (2) and Commissioner of income Tax, Bombay City vs F. L. Smith & Co., (Bombay) Ltd. (3).
By the fiction in section 10(2)(vii) second proviso, read with section 2(6C), what is really not income is, for the purpose of computation of assessable income, made taxable income: but on that account, it does not become commercial profit, and if it is not commercial profit, it is not liable to be taken into account in assessing whether in view of the smallness of profits a larger dividend would be unreasonable.
In our judgment, the High Court was right in holding that the amount of Rs. 15,608 was not liable to be taken into account in considering whether having regard to the smallness of the profit made by the Company, it would be unreasonable to declare a larger dividend.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
(1) (1940) XVII I.T.R. 493.
(2) (1950) XVIII I.T.R. 762.
(3) (1959) XXXV I.T.R. 183.
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The respondent company purchased certain machinery for Rs. 89,000 and sold it for the same value, but in the books of account the written down value of the machinery was shown in the year of account as Rs. 73,392.
The Income Tax Officer in computing the assessable income of the company added the difference, i.e. Rs. 15,608, between the actual value and the written down value to the profit of the company.
The Income Tax Officer also passed an order under section 23A of the Income Tax Act, and directed that the undistributed portion of the assessable income, shall be deemed to have been distributed amongst the shareholders as dividend.
Appeals against the order of the Income tax Officer proved unsuccessful and the Appellate Tribunal referred the following question to the High Court under section 66(1): "Whether the sum of Rs. 15,608 should have been included in the assessee company 's "profit" for the purpose of deter mining whether the payment of a larger dividend than that declared by it would be unreasonable.
" The High Court answered the question in the negative.
On appeal by special leave, Held, that the view taken by the High Court was correct.
494 By the fiction in section 10(2)(Vii) second proviso, read with s.2(6C), what is really not income is, for the purpose of computation of assessable income, made taxable income: but on that account, it does not become commercial profit, and if it is not commercial profit, it is not liable to be taken into account in assessing whether in view of the smallness of profits a larger dividend would be unreasonable.
"Smallness of profit" should not be equated with "smallness of assessable income" but should be determined in accordance with commercial principles.
Sir Kasturchand Ltd. vs Commissioner of Income tax, Bombay City, (1949) XVII I.T.R. 493, Ezra Proprietary Estates Ltd. vs Commissioner of Income tax, West Bengal, (1950) XVIII I.T.R. 762 and Commissioner of Income tax Bombay City vs F. L. Smith & Co. (Bombay) Ltd., (1959) XXXV I.T.R. 183, referred to.
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No. K-13029/02/2023-USJI
Government of India
Ministry of Law & Justice
Department of Justice
(Appointments Division)
Jaisalmer House, 26, Man Singh Road,
Dated: 27th September, 2023.
In exercise of the power conferred by clause (1) of Article 217 of the
Constitution of India, the President is pleased to appoint (i) Ms. Justice Nidhi
Gupta, S/Shri Justices (ii) Sanjay Vashisth, (iii) Tribhuvan Dahiya, (iv) Namit
Kumar (v) Harkesh Manuja, (vi) Aman Chaudhary, (vii) Naresh Singh, (viii)
Harsh Bunger, (ix) Jagmohan Bansal, (x) Deepak Manchanda and (xi) Alok Jain,
Additional Judges of Punjab and Haryana High Court, to be Judges of that High
Court with effect from the date they assume charge of their respective offices.
To
The Manager,
Government of India Press,
Minto Road,
New Delhi. 2.41" 70&
(Rajinaer 11 hyap)
Special Secretary to the Government of India
Tele: 2338 3037
No. K-13029/02/2023-US.II Dated: 27.09.2023
Copy to:-
1. (i) Ms. Justice Nidhi Gupta, S/Shri Justices (ii) Sanjay Vashisth, (iii)
Tribhuvan Dahiya, (iv) Namit Kumar (v) Harkesh Manuja, (vi) Aman
Chaudhary, (vii) Naresh Singh, (viii) Harsh Bunger, (ix) Jagmohan
Bansal, (x) Deepak Manchanda and (xi) Alok Jain, Additional Judges
of Punjab and Haryana High Court through the Registrar General,
Punjab and Haryana High Court, Chandigarh.
2. The Secretary to Governor of Punjab, Chandigarh.
3. The Secretary to Governor of Haryana, Chandigarh.
4. The Secretary to Chief Minister of Punjab, Chandigarh.
5. The Secretary to Chief Minister of Haryana, Chandigarh.
6. Secretary to ,the Chief Justice, Punjab and Haryana High Court,
Chandigarh.
7. The Chief Secretary, Government of Punjab, Chandigarh.
8. The Chief Secretary, Government of Haryana, Chandigarh.
9. The Registrar General, Punjab and Haryana High Court, Chandigarh.
10. The Accountant General, Punjab, Chandigarh.
11. The Accountant General, Haryana, Chandigarh.
12. The President's Secretariat, (CA.II Section), Rashtrapati Bhavan, New
Delhi
13. PS to Principal Secretary to the Prime Minister, PM's Office, South
Block, New Delhi.
14. Registrar (Conf.), o/o Chief Justice of India, 7, Krishna Menon Marg,
New Delhi.
16. Technical Director, NIC, Department of Justice, with a request to
upload on the website of the Department (www.doi.gov.in).
F,A4 al 05 7-02"g (Prem C and)
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The Central government on Wednesday cleared the appointment of eleven additional judges of the Punjab and Haryana High Court as permanent judges.
Union Minister of State with independent charge of the Law and Justice Ministry, Arjun Ram Meghwal shared this development through social media platform, X (Twitter).
The following are the additional judges who have been made permanent:
1. Justice Nidhi Gupta
2. Justice Sanjay Vashisth
3. Justice Tribhuvan Dahiya
4. Justice Namit Kumar
5. Justice Harkesh Manuja
6. Justice Aman Chaudhary
7. Justice Naresh Singh @ Naresh Singh Shekhawat
8. Justice Harsh Bunger
9. Justice Jagmohan Bansal
10. Justice Deepak Manchanda
11. Justice Alok Jain @ Alok Kumar Jain
The Supreme Court Collegium had recommended that the above eleven judges be made permanent judges of the High Court on September 14.
All eleven judges were appointed as additional judges on August 16 last year.
As on September 1, the Punjab and Haryana High Court is functioning at a strength of 58 judges as against its sanctioned strength of 85 judges.
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ivil Appeal No. 1102 of 1990.
From the Judgment and Order dated 7.10.1988 of the Patna High Court in C.W.J.C. No. 2075 of 1988.
A.K. Sen, K.D. prasad, J. Krishna and Mrs. Naresh Bakshi for the Appellant.
S.K. Sinha and U.S. Prasad for the Respondents.
The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J.
Special Leave is granted.
This appeal from an order of the Patna High Court raises an important question as to the scope of section 33 B of the ( 'The Act ').
The facts can be quite shortly stated: The appellant company is mainly engaged in construction of coal washeries on contract basis in different collieries and also doing allied and incidental work.
Shivaji Prasad Sinha respondent No. 4 was a Senior Supervisor in the company 's establishment at Dhanbad.
It is said that he was caught red handed when carrying 55 pieces of electromagnetic clutch plates kept concealed in the tool box of his scooter.
The management held domestic enquiry into the incident and found him guilty of committing theft.
He was accordingly dismissed from service.
The dispute arising therefrom was referred under Section 10(1)(c) of the Act to Labour Court Dhanbad for adjudication.
The Labour Court registered the case as refer ence case No. 4 of 1988 and issued notice to the parties.
The parties entered appearance and filed their respective pleadings.
When the matter was thus pending consideration the respondent seems to have written to the Government stating that it would be difficult for him to attend the Labour Court Dhanbad since he has been residing at Hajipur and it would be convenient for him if the case is trans ferred to Labour Court Patna.
That application was made without intimation to the management.
The Government howev er, has acceded to the request of the respondent and without opportunity to 294 the management transferred the case to Labour Court Patna.
The Notification issued in that regard reads as follows: "NOTIFICATION Patna dated 8th August 1988 S.O.
In exercise of powers conferred by sub section (1) of Section 33 B of the (14 of 1947) the Governor of Bihar after careful consideration of the application of the petitioner Shri Shivajee Prasad Sinha wherein he has prayed for the transfer of adjudication proceedings to Patna keeping in view to the difficulties expressed by him to attend the labour court, Dhanbad, regu larly due to his residence at Hajipur is pleased to withdraw the proceeding shown in Annexure 'A ' pending before Labour Court, Dhanbad and transfer the said proceeding to the Labour Court, Patna for speedy disposal from the stage at which the case is transferred.
" The management moved the High Court by way of writ petition under Article 226 of the Constitution to have the Notification quashed.
The High Court did not agree and summarily dismissed the writ petition with an observation: "Since no prejudice is being caused to the petitioner and no allegation of mala fide has been made against the presiding officer, Patna, we are not inclined to interfere with the order under challenge.
This application is dismissed" The management in the appeal challenges the Government notification withdrawing and transferring the pending case from the Labour Court Dhanbad to Labour Court Patna.
Since the impugned notification has been issued under Section 33 B of the Act, we may for immediate reference set out that Section.
Omitting immaterial words, it is in these terms: "33.B. Power to transfer certain proceedings: (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, 295 Tribunal, or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special direc tions in the order of transfer, proceed either de novo or from the stage at which it was so transferred." The Section 33 B provides power to the appropriate Government to withdraw any proceedings pending before a labour court or Tribunal and transfer it for disposal to another labour court or Tribunal.
It could be exercised suo motu or on representations of the parties.
The expression 'may ' in sub section (1) of Section 33 B only makes it discretionary in so far as the appropriate Government taking a decision as to whether the power conferred thereunder has to be exercised or not.
But when once a decision is taken to transfer a pending case then the requirement of giving reasons becomes mandatory.
The authority is under legal obligation to record reasons in support of its decision.
Reasons would be life of the decision.
Failure to give reasons or giving reasons not germane would be fatal to the decision.
In Associated Electrical Industries (P) Ltd. vs Its Workmen, [1961] II LLJ 122, 130 the Government withdrew and transferred a reference from one tribunal to another tribu nal merely stating that expediency required the withdrawal and transfer.
The validity of the order of withdrawal and transfer was challenged inter alia on the ground that no reasons were stated for passing the order.
Gajendragadkar, J., (as he then was) speaking for this Court observed that the requirement about the statement of reasons to be record ed must be complied with both in substance and in letter.
To say that it is expedient to withdraw a case from one tribu nal and transfer it to another does not amount to giving reasons as required by the Section.
In the instant case, the key question for consideration is whether the Government before accepting the representa tion of the workman and transferring the case from the labour court, Dhanbad to labour court, Patna should have given an opportunity to the management? The validity of the reasons given by the Government for transferring the case is another question to be considered.
We will presently consider the question but before doing so a brief survey of some of the High Courts decisions bearing on this aspect may be usefully made.
The Punjab High Court in Workman of Punjab 296 Worsted Spinning Mills Chheharta vs State of Punjab & Ors., [1965] II LLJ 2 18 has expressed the view that the power to transfer pending case under section 33 B is not a mere administrative but quasi judicial power and the appropriate Government cannot transfer a case on the basis of allega tions of one party without giving reasonable opportunity to other party to represent its point of view.
This was also the view recognised by the Madras High Court in Management of Sri Rani Lakshmi Ginning and Weaving Mills Ltd. vs State of Madras, at 167.
It was explained by the Madras High Court that the reasons given by a party who moved for transfer may not be valid or relevant or may not be true at all.
Whether such reasons in fact exist and whether those reasons have any relevance for a transfer could be tested only if the other party has notice of the same.
The High Courts of Calcutta, Andhra Pradesh and Allaha bad have however, taken contrary view.
In Jay Engineering Works Ltd. vs Fourth Industrial Tribunal, Calcutta, [1977] (Lab) 1C 1739 at 1750 the Calcutta High Court has observed that it would be difficult to appreciate how under such circumstances, the Government could be called upon to give a notice to the parties before making an order under section 33 B. There could be no principle involved in giving such a notice.
Nobody 's rights could possibly have been effected in taking such action and there is no question of observing the principles natural justice.
The Andhra Pradesh High Court in Muthe Steels (India) Ltd. vs Labour Court, Hyderabad, [1979] (Lab) IC 325 at 329 has adopted a similar line of reasoning.
It was emphasized that Section 33 B in terms does not con template any notice being given before a transfer is made of any proceeding from one Labour Court to another.
There is no right to any party to have any question decided by a partic ular court.
An arbitrary exercise of power of transfer is adequately safeguarded by the statutory requirement to record reasons for such transfer.
The Allahabad High Court in Pioneer Ltd. vs Labour Court, Gorakhpur, [1983] (Lab) IC 335,338 has also expressed similar views.
After the leading English case of Ridge vs Baldwin,I ; and an equally important case of this Court in A.K. Kraipak & Ors.
vs Union of India, there was a turning point in the development of doctrine of natural justice as applicable to administrative bodies.
Both the authorities laid down that for application of rules of natural justice the classification of functions as 'judi cial ' or 'administrative ' is not necessary.
Lord Reid in Ridge case explained, 'that the duty to act judicially may arise from the very nature of the 297 function intended to be performed and it need not be shown to be super added '.
Hegde, J., in Kraipak case said that under our Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law.
The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner.
The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.
The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.
What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness.
The State functionaries must act fairly and reasonably.
That is, however, not the same thing to state that they must act judicially or quasijudicially.
In Keshav Mills Co. Ltd. vs Union of India, ; Mukherjea, J., said (at 30): "The administrative authority concerned should act fairly, impartially and reasonably.
Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly." The procedural standards which are implied by the duty to act fairly has been explained by Lord Pearson in Pearl berg vs Varty, ,547: "A tribunal to whom judicial or quasi judicial functions are entrusted is held to be required to apply those principles (i.e. the rules of natural justice) in performing those functions unless there is a provision to the contrary.
But where some person or body is entrusted by Parliament with administrative or executive functions there is no presump tion that compliance with the principles of natural justice is required although, as 'Parliament is not to be presumed to act unfairly ', the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fair ness.
" In Mohinder Singh Gill vs Chief Election Commissioner, ; at 434 Krishna Iyer, J. commented that natural justice though 298 varying is the soul of the rule as fair play in action.
It extends to both the fields of judicial and administrative.
The administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice.
Good administration demands fair play in action and this simple desideratum is the fount of natural justice.
Fairness is flexible and it is intended for improving the quality of government by injecting fairplay into its wheels.
In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 Bhagwati, J., expressed similar thought that audio alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power.
In Swadeshi Cotton Mills vs Union of India, Sarkaria, J., speaking for himself and Desai, J., said that irrespective of whether the power conferred on a statu tory body or tribunal is administrative or quasi judicial, a duty to act fairly, that is, in consonance with the funda mental principles of substantive justice is generally im plied.
The presumption is that in a democratic polity wedded to the rule of law, the State or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly.
In the same case, Chinnappa Reddy, J., added (at 2 12) that the princi ples of natural justice are now considered so fundamental as to be 'implicit in the concept of ordered liberty '.
They are, therefore, implicit in every decision making function, call it judicial, quasi judicial or administrative.
The learned Judge went on to state that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice.
The implication of natural justice being presumptive, it should be followed by the authorities unless it is excluded by express words of statute or by necessary implication.
Citations could be multiplied since there is fairly abundant case law has come into existence: See, for example, Royappa vs State of Tamil Nadu, ; and Union of India vs Tulsi Ram, [1985] (Supp.) 2 SCR 13 1.
More recently in a significant judgment in Charan Lal Sahu & Ors.
vs Union of India, JT learned Chief Justice Sabyasachi Mukharji has referred to almost all the authori ties of this Court on this aspect and emphasized that the principles of natural justice are fundamental in the consti tutional set up of this country.
No man or no man 's right should be affected without an 299 opportunity to ventilate his views.
The justice is a psycho logical yearning, in which men seek acceptance of their view point by having an opportunity before the forum or the authority enjoined or obliged to take a decision affecting their right.
It may be noted that the terms 'fairness of procedure ', 'fair play in action ', 'duty to act fairly ' are perhaps used as alternatives to "natural justice" without drawing any distinction.
But Prof. Paul Jackson points out that "Such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the.
contrary, to refer to a standard of behaviour which, in creasingly, the courts require to be followed even in cir cumstances where the duty to observe natural justice is inapplicable" (Natural Justice by Paul Jackson 2nd ed.
p. 11).
We share the view expressed by Professor Jackson.
Fair ness, in our opinion, is a fundamental principle of good administration.
It is a rule to ensure the vast power in the modern state is not abused but properly exercised.
The State power is used for proper and not 'for improper purposes.
The authority is not misguided by extraneous or irrelevant consideration.
Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons.
To use the time hallowed phrase "that justice should not only be done but be seen to be done" is the essence of fairness equally applicable to administrative authorities.
Fairness is thus a prime test for proper and good adminis tration.
It has no set form or procedure.
It depends upon the facts of each case.
As Lord Pearson said in Pearlberg vs Varty, (at 547), fairness does not necessarily require a plurality of hearings or representations and counter repre sentations.
Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly.
A case with a not dissimilar problem was in Pannalal Binjraj and Anr.
vs Union of India, There the Commissioner of Income Tax by the power vested under section 5(7A) of Income Tax Act, 1922, transferred an asses see 's case from one Income Tax Officer to another without hearing the assessee.
Section 5(7A) of the Income Tax Act, 1922 provided: "The Commissioner of Income Tax may transfer any case from one Income Tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income Tax Officer to another.
Such 300 transfer may be made at any stage of the proceedings, and shall not render necessary the re issue of any notice al ready issued by the Income tax Officer from whom the case is transferred.
" This Section did not provide for affording an opportuni ty to the assessee before transferring his case from one Income Tax Officer to another.
The assessee challenged the constitutional validity of the Section.
This Court upheld its validity on the ground that it is a provision for admin istrative convenience.
N.H. Bhagwati, J., speaking for this Court, however remarked (at 589): " . . it would be prudent if the principles of natural justice are followed, where circumstances permit, before any order of transfer under section 5(7A) of the Act is made by the Commissioner of Income Tax or the Central Board of Revenue, as the case may be, and notice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing .
There is no presumption against the bona fide or the honesty of an assessee and normally the income tax authorities would not be justified in refusing to an assessee a reasonable oppor tunity of representing his views when any order to the prejudice of the normal procedure laid down in section 64(1) and (2) of the Act is sought to be made against him, be it a transfer from one Income Tax Officer within the State to an Income Tax Officer without it, except of course where the very object of the transfer would be frustrated if notice was given to the party affected.
" Section 5(7A) was replaced by Section 127 of the Income Tax Act, 1961, which now makes it obligatory to record reasons in making the order of transfer after affording a reasonable opportunity of being heard to the assessee in the matter.
In Ajantha Industries vs Central Board of Taxes, ; this Court considered the validity of a transfer order passed under Section 127 and it was held that merely recording of reasons on the file was not sufficient.
It was essential to give reasons to the affected party.
The order of transfer in that case was quashed for not communi cating reasons to the assessee.
In the present case, the State has withdrawn the pending refe 301 rence from the Labour Court, Dhanbad and transferred it to another Labour Court at the distant District of Patna, on the representation of the workman, without getting it veri fied from the management.
The State in fairness ought to have got it verified by giving an opportunity to the manage ment which is a party to the pending reference.
Denial of that opportunity is a fatal flaw to the decision of the Government.
The management need not establish particular prejudice for want of such opportunity.
In S.L. Kapoor vs Jagrnohan, ; at 765 Chinnappa Reddy, J., after referring to the observation of Donaldson, J., in Altco Ltd. vs Suth erland, said that the concept that justice must not only be done but be seen to be done is basic to our system and it is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice.
It was emphasized that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed.
The non observance of natural justice is itself prejudice to any man and proof of prejudice independ ently of proof of denial of natural justice is unnecessary.
This takes us to the reasons given by the Government in support 'of the order of transfer.
The Government has stated that the workman is having his residence at Hajipur and it would be therefore, inconvenient for him to attend the labour court regularly at Dhanbad.
However, most of the factors do not point that way.
The workman and his family members seem to be still residing in colony quarter at Dhanbad (Annexure C).
His two sons are studying in De Nobili School at Mugma which is a nearby village.
Reference may be made to a letter dated September 8, 1988 (Annexure D) of the Headmaster of the School in which the children of the work man are studying.
Reference may also be made to a letter (Annexure E) from the Assistant Electrical Engineer in proof of the electricity supplied to the quarter occupied by the workman at Dhanbad.
As against these material, the workman has not produced any proof in support of his allegation that he has been residing in a village home near Patna.
In fact, in the counteraffidavit, he has not denied the documents annexed to the Special Leave Petition, and not seriously disputed the factum of his residence in the colony quarter at Dhanbad.
Even the alleged recommendation of the Ward Commissioner referred in his counter affidavit has not been produced.
We have, therefore, no hesitation in holding that the Government was misled by the representation of the workman. 302 In the result, we allow the appeal and quash the notifi cation dated August 8, 1988 by which the Government of Bihar transferred the case from the Labour Court, Dhanbad to the Labour Court, Patna.
The Labour Court, Dhanbad shall now proceed to dispose of the matter as expeditiously as possi ble.
In the 'circumstances of the case, we make no order as to costs.
P.S. S Appeal allowed.
|
Sub section (1) of section 33 B of the provides that the appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceedings pending before a Labour Court or Tribunal and transfer it for disposal to another Labour Court or Tribunal.
Respondent No. 4, a workman of the appellant company at Dhanbad, was caught red handed while stealing certain goods.
The domestic enquiry found him guilty of committing theft.
Consequently,.
he was dismissed from service.
The dispute arising therefrom was referred to the Labour Court, Dhanbad under section 10(1)(c) of the Act for adjudication.
When the matter was pending consideration the respondent sought transfer of the case to the Labour Court at Patna on the plea that since he was residing at his village near Patna it would be difficult for him to attend the proceedings at Dhanbad.
That application was made without intimation to the management.
The Government, however, without giving opportu nity to the management transferred the case to Patna by a notification dated August 8, 1988 issued under section 33B of the Act.
The writ petition filed by the management seeking to quash the notification was dismissed by the High Court on the view that no prejudice was being caused to the manage ment and no allegation of mala fide had been made against the presiding officer.
Allowing the appeal by special leave, the Court.
HELD: 1.1 The power to transfer a pending case under section 33B of the is not a mere administra tive but quasijudicial power and the appropriate Government cannot transfer a case on the basis of allegations of one party without giving a reasonable opportunity to the other party to represent its point of view.
Such 291 allegations may not be valid or relevant or may not be true at all.
That could be tested only if the other party has notice of the same.
[296A C] Punjab Worsted Spinning Mills, Chheharta vs State of punjab & Ors., [1965] II LLJ 218 and Management of Sri Rani Lakshmi Ginning & Weaving Mills Ltd. vs State of Madras, , referred to.
Jay Engineering Works Ltd. vs Fourth Industrial Tribu nal, Calcutta, [1977] (Lab) I.C. 1739; Muthe Steels (India) Ltd. vs Labour Court, Hyderabad, [1979] (Lab) I.C. 325 and Pioneer Ltd. vs Labour Court, Gorakhpur, [1983] (Lab) I.C. 335, overruled.
1.2 What is important in the modern administration is the fairness of procedure with elimination of element of arbitrariness, for fairness is a fundamental principle of good administration.
It is a rule to ensure that vast power in the modern State is not abused but properly exercised.
The State power is used for proper and not for improper purposes.
The authority is not misguided by extraneous or irrelevant consideration.
Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons.
The concept that 'justice should not only be done but be seen to be done ' is the essence of fairness and is equally applicable to administrative authorities.
Fairness is thus a prime test for proper and good administration.
It has no set form or procedure.
It does not necessarily re quire a plurality of hearings or representations and counter representations.
It depends upon the facts of each case.
[297C, 299C E] Ridge vs Baldwin, ; ; A.K. Kraipak & Ors.
vs Union of India, ; Keshav Mills Co. Ltd. vs Union of India; , ; Pearlberg vs Varty, , 547; Mohinder Singh Gill vs Chief Election Com missioner; , ; Maneka Gandhi vs Union Of India, [1978] 2 SCR 621; Swadeshi Cotton Mills vs Union of India, ; Royappa vs State of Tamil Nadu, ; ; Union of India vs Tulsi Ram, [1985] (Supp.) 2 SCR 131; Charan Lal Sahu & Ors.
vs Union of India, JT ; Natural Justice by Paul Jackson, 2nd ed.
p. 11 and Pannalal Binjraj & Anr.
vs Union of India, , referred to.
1.3 In the instant case, the State had withdrawn the pending reference from the Labour Court, Dhanbad and trans ferred it to another Labour Court at the distant District of Patna, on the represen 292 tation of the workman without getting it verified from the management.
The State in fairness ought to have got it verified by giving an opportunity to the management which was a party to the pending reference.
The management was not required to establish particular prejudice for want of such opportunity.
The non observance of natural justice was itself prejudice to the management and proof of prejudice independently of proof of denial of natural justice was unnecessary.
Denial of the opportunity to the management was thus a fatal flaw to the decision of the Government.
[300H 30 IA, B D] S.L. Kapoor vs Jagmohan, ; and Altco Ltd. vs Sutherland, , referred to.
The expression 'may ' in Sub section
(1) of section 33B of the Act only makes it discretionary in so far as the appropriate Government taking a decision as to whether the power con ferred thereunder has to be exercised or not.
But when once a decision has been taken to transfer a pending case then the requirement of giving reasons becomes mandatory.
The authority would be under legal obligation to record reasons in support of its decision.
Failure to give reasons or giving reasons not germane would thus be fatal to the deci sion.
[295C D] Associated Electrical Industries (P) Ltd. vs Its Work men, [1961] II LLJ 122 and Ajanta Industries vs Central Board of Taxes, ; , referred to.
2.2 In the instant case, the Government has stated that the workman was having his residence at his village near Patna and it would be, therefore, inconvenient for him to attend the Labour Court regularly at Dhanbad.
Most of the factors, however, do not point that way.
The workman and his family members seem to be still residing in the colony quarter at Dhanbad.
His two sons are studying in a school at a nearby village.
The letter dated September 8, 1988 of the Headmaster of the said school speaks of that fact.
The letter from the Assistant Electrical Engineer in proof of the electricity supplied to the quarter occupied by the workman at Dhanbad is also relevant.
As against these mate rials, the workman has not produced any proof in support of his allegation that he has been residing in a village home near Patna.
He has not denied the documents annexed to the special leave petition and not seriously disputed the factum of his residence in the colony quarter at Dhanbad.
The Government was, therefore, misled by the representation of the workman.
[301E H] 293 3.
The notification dated August 8, 1988 is quashed.
The Labour Court, Dhanbad shall proceed to dispose of the matter as expeditiously as possible.
[302A]
|
Appeal No. 222 (N) of 1973.
From the Judgment and Order dated 13.3.1972 of the Delhi High Court in Civil Writ No. 731 of 1971.
M.K. Dua, Aman Vachher and S.K. Mehta for the Appellants.
B. Datta, Additional Solicitor General, G.D. Gupta and Mr. C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by KHALID, J.
1.
This appeal by certificate is directed against the Judgment of a Division Bench of the Delhi High Court, in C.W. No. 731 of 1971.
The prayer in the Writ Petition is for the issuance of an appropriate writ, order or direction declaring (a) the Police Forces (Restriction of Rights) Act No. 33 of 1966 (for short the Act) as ultra vires the Constitution, (b) the Police Forces (Restriction of Rights) Rules 1966 and Police Forces (Restriction of Rights) Amendment Rules, 1970 (for short the Rules) ultra vires of Act 33 of 1966 and the Constitution of India, (c) that the Circular dated 1st April, 1971 as invalid, illegal, ultra vires, null and void and (d) for a declara tion that the Delhi Police Non Gazetted Karmchari Sangh, petitioner No. 1 in the Writ Petition, is a legally and validly constituted service organisation.
350 2.
The first appellant is the Non Gazetted Karmachari Sangh (for short the 'Sangh ') and the appellant Nos. 2 to 7, its members.
The High Court dismissed the petition holding that the challenge was not sustainable and that neither the Act nor the Rules violated any provisions of the Constitu tion.
The High Court dealt at length with the preliminary objections that a challenge based on the violation of any fundamental right was not permissible in view of the emer gency declared by the President of India, in December, 1977.
This need not detain us now in this Judgment.
The appellants ' case is that the Act referred above violates Article 19(1)(c) of the Constitution of India and that the restrictions imposed by it., being arbitrary, violates Article 14 of the Constitution.
The Non Gazetted members of the Delhi Police Force wanted to form an organi sation of their own and for that purpose constituted the Karmachari Union in 1966 and applied for its registration under the Trade Union Act, 1926.
Initially the registration asked for was declined.
Then Act 33 of 1966 was enacted.
It came into force on 2nd December, 1966.
An application for recognition was again made on 9th December, 1966.
Recogni tion was granted by the Central Government on 12th December, 1966.
The Non Gazetted members of the Delhi Police Force were permitted to become members of the Sangh.
On 12th December, 1966, the Central Government made rules under the Act which were amended in December, 1970.
The Circular in question was issued under these rules.
The Circular attempts to derecognise the Sangh.
This occassioned the filing of the writ petition.
Before considering the rival contentions urged before us, it would be useful to refer to the salient features of the Act to appreciate its ambit and the restrictions imposed by its provisions.
The Act was enacted to delineate the restrictions imposed of the rights conferred by part III of the Constitution, in their application to the members of the forces charged with the maintenance of public order so as to ensure the proper discharge of their duties ' and the mainte nance of discipline among them.
The Parliament obviously has this power under Article 33 of the Constitution of India.
The provisions of the Act seek to place certain restrictions on members of the police force in exercise of their funda mental rights guaranteed by Article 19(1)(c) to form Associ ation or Unions.
Section 3 of the Act reads as follows: "3(1) No member of a police force shall with out the express sanction of the Central Gov ernment or of the prescribed authority (a)be a member of, or be associated in any way with, any trade union, labour union, political association or with any class of trade unions, labour unions or political 351 associations; or (b) be a member of, or be associated in any way with, any other society, institution, association or organisation that is not recognised as part of the force of which he is a member or is not of a purely social, recretional or religious nature; or (c) communicate with the press or publish or cause to be published any book, letter or other document except where such communication or publication is in the bona fide discharge of his duties or is of a purely literary, artistic or scientific character or is of a prescribed nature.
Explanation: If any question arises as to whether any society, institution, association or organisation is of a purely social, recre tional or religious nature under clause (b) of this subsection, the decision of the Central Government thereon shall be final.
(2) No member of a police force shall partici pate in or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed.
" Section 4 of the Act provides for penalties if Section 3 is contravened by any person.
Section 5 gives power to the Central Government by notification in the official gazette, to amend the schedule by including therein any other enact ment relating to a force charged with the maintenance of public order or omit therefrom any enactment already speci fied therein.
Section 6 gives the rule making power to the Central Government.
The only contention that now survives is whether the impugned statute, rules and orders are violative of the fights of the appellants guaranteed under Article 19(1)(c) of the Constitution of India.
This appeal could be disposed of by a short Order.
Appellants No. 2 to 7 are no longer in service.
They have been dismissed.
As such they do not have the necessary locus standi to sustain this petition.
But the appellants ' counsel submitted that the first petitioner the Sangh, was still interested in pursuing this appeal and that persuaded us to hear the appeal on merits.
It is true that recognition was given to the Sangh originally.
Subsequently by order dated 1 st April, 1971, the Sangh was derecognized.
This was pursuant to the amended rules.
Rule 3 provided that "no member of the police forces shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons (a)for the purpose of protesting against any of the provisions of the Act or these rules or any other 352 rules made under the Act; or (b)for the purpose of protest ing against any disciplinary action taken proposed to be taken against him or against any other member of a police force; or (c)for any purpose connected with any matter pertaining to his remuneration or other conditions of serv ice or his condition of work or living condition, or the remuneration, other conditions, of any other member or members of a police force. "Provided that nothing contained in clause(c) shall preclude a member of a police force from participating in a meeting convened by an association of which he is a member and which has been accorded sanction under sub section (1) of section3 of the Act, where such meeting is in pursuance of or for the furtherance of, the objects of such associa tion.
" The above rules were amended by a notification dated 19th December, 1970 the material change for our purpose being an amendment in the proviso to clause (c) of rule 3.
The original proviso to clause(c) was substituted by another proviso which reads as follows: "Provided that nothing contained in clause (c) shall preclude a member of a police force from participating in a meeting (i) which is convened by an association of police officers of the the same rank of which he is a member and which has been granted recognition under clause (b) of sub section (1) of section 3 of the Act; (ii) which has been specifically provided for in the articles of association or/and has been, by general or special order, permitted by the Inspector General of Police having regard ' to the object of such meeting and other relevant factors; and (iv) which has been convened to consider the agenda circulated to all concerned according to the relevant provisions of the articles of association, after giving intimation in ad vance to the ' Inspector General of Police or an officer nominated by him." (Emphasis sup plied).
Rule 5 was added to the Rules by virtue of which minutes had to be recorded of the meetings of a recognised associa tion.
The Inspector General of Police could send observers by virtue of rule 6 to such meetings.
Outsiders were prohib ited from attending the meetings of the association without permission of the Inspector General of Police by Rule 7.
Rules 8, 9 & 11 may also be usefully read: 353 "8.
Recognition: Members of police force belonging to the same rank desiring to form an association may make an application for the grant of recognition under clause (b) of sub section (1) of section 3 and such application shall be in writing under the hand of a repre sentation of such association addressed to the Inspector General of Police who shall be the authority to grant, refuse or revoke such recognition; Provided that before refusing or revoking recognition, the Association shall be given a reasonable opportunity of making representation against the proposed action." "9.
Suspension of recognition: The Inspector General of Police may in the interests of the general public or for the maintenance of discipline in the police force and with the prior approval of the Central Government, the State Government or as the ease may be the Administrator of the Union Territory suspend the recognition granted under rule 8 for a period not exceeding three months which may be extended for a further period of three months by the Central Government, State Government or as the case may be the Administrator of the Union Territory so however that the total period for which such recognition may be suspended shall, not, in any case, exceed six months." "11.
Special provision regarding recognition already granted: Recognition granted prior to the commencement of the Police Forces (Restriction of Rights) Amendment Rules, 1970, to any association the articles of association of which are not in conformity with these rules shall, unless the said artides of association are brought in conformity with the provisions of these rules within a period of thirty days, stand revoked on the expiry of the said peri od.
It is the change effected by the new Proviso to Rule 3(c) which has come in for attack at the hands of the appel lants.
Previously all non gazetted officers of the Delhi Police Department could be members of the Sangh.
Now, the amended proviso to rule 3(c) mandates that only members of the Police Force having the same rank could constitute themselves into one Association.
The effect of this amended rule is that the Sangh will have to be composed of various splinter associations consisting of members holding differ ent ranks.
This according to the appellants violates not only Article 19(1)(c) which protects freedom of association, but also the provisions of the Act.
354 The immediate provocation for filing the writ petition was the Circular by which the recognition granted to the Sangh was revoked.
The operative part of the Circular reads as follows: "Rule 11 of the Police Force (Restriction of Rights) Amendment Rules, 1970 published vide extraordinary Gazette of India notifica tion No. GSR 2049 dated 19 12 70 lays down that recognition granted prior to the com mencement of these rules, to any association the articles of which are not in conformity with these rules shall unless the articles are brought in conformity with the provisions of these rules within a period of 30 days, stand revoked on the expiry of the said period.
Whereas the Constitution of the Delhi Police NonGazetted Karmchari Sangh which was granted recognition vide Government of India, Ministry of Home Affairs letter No.8/70/66 P.I., dated 12 12 66 and which contains a number of provisions not in con formity with the above rules, the recognition already granted to the Delhi Police Non Gazet ted Karmachari Sangh, stands revoked.
This may be brought to the notice of a11 ranks.
A copy of this circular may be published in the Delhi Police Gazette.
" The appellants ' counsel Submits that recognition of the association carries with it the right to continue the asso ciation as such.
It is a right flowing from the fact of recognition.
To derecognise the association in effect of fends against the freedom of association.
It is urged that once the Government had granted recognition to the Sangh and approved its constitution neither the Parliament nor any delegated authority can take away that recognition or dic tate to the association who could be its members.
The right available to the members of the association at the commence ment should continue as such without any hindrance.
Before considering the questions of law raised by the appellants ' counsel with reference to the decided cases, it would be useful to bear in mind the fact that this associa tion consists of members of Police Force who by virtue of this fact alone stands on a different footing from other associations.
The Constitution of India has taken care to lay down limitations on such, associations from exercising rights under Article 19(1)(c).
Article 33 read with 355 Article 19(4) of the Constitution offers an effective reply to the contention raised by the appellants.
Article 33 reads as follows: "Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to the mem bers of the Armed Forces or the Forces charged with the maintenance of public order, be restricted or abroagated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
" Article 19(4) reads as follows: "Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restric tions on the exercise of the right conferred by the said sub clause.
" That the Sangh and its members come within the ambit of Article 33 cannot be disputed.
The provisions of the Act and rules taking away or abridging the freedom of association have been made strictly in conformity with Article 33.
The right under Article 19(1)(c) is not absolute.
Article 19(4) specifically empowers the State to make any law to fetter, abridge or abrogate any of the rights under Article 19(1)(c) in the interest of public order and other considerations.
Thus the attack against the Act and rules can be successful ly met with reference to these two Articles as members of the Police Force, like the appellants herein, are at a less advantageous position, curtailment of whose fights under Article 19(1)(c) comes squarely within Article 33 in the interest of discipline and public order.
This conclusion of ours is sufficient to dispose of this appeal.
However, we will deal with the submissions made before us for the com pleteness of the Judgment.
The scope of Article 19(1)(c) came up for considera tion before this Court in Damyanti Naranga vs The Union of India & Ors., ; The question related to the Hindi Sahitya Sammelan, a Society registered under the .
The Parliament enacted the Hindi Sahitya Sammelan Act under which outsiders were per mitted to become members of the Sammelan without the voli tion of the original members.
This was challenged and this Court held that any law altering the composition of the Association compulsorily will be a breach of the right to form the association because it violated the composite right of forming an association and the right to continue it as the original members desired it.
356 10.
Here we have an entirely different situation since we are dealing with a group distinct in its nature and composition from others.
Here we are dealing with a force that is invested with powers to maintain public order.
Article 33 enables Parliament to restrict or abrogate the fundamental rights in their relation to the Armed Forces including Police Force.
In Ous Kutilingal Achudan Nair & Ors., vs Union India & Ors., ; this Court had to consider two questions; whether the employees of the defence establishment such as cooks, barbers and like civil employees were "members of the Armed Forces" and if so whether they could be validly deprived of their right to form unions in violation of Article 19(1)(c).
This Court held that they fell within the category of members of the Armed Forces and that the Central Government was competent by notification to make rules restricting or curtailing their right to form associations, Article 19(1)(c) not withstanding.
In Raghubar Dayal Jai Prakash vs The Union of India and Ors., ; this Court had to deal with this question in relation to the functions of an incorporated body the objects of which were, interalia, to regulate forward transactions in the sale and purchase of various commodities, Freedom of association is a fundamental right.
It was contended that if a law regulated the recognition of an association under certain conditions subject to which alone recognition could be accorded or continued, such conditions were bad.
This Court had to consider whether the freedom of association implied or involved a guaranteed right to recognition also.
The contention was that if the object of an association was lawful, no restriction could be placed upon it except in the interest of public order and that freedom to form an association carried with it the right to determine its internal arrangements also.
Repelling this contention this Court held that restrictions cannot be imposed by statute for the purpose of regulating control of such associations.
While the right to freedom of association is fundamental, recognition of such association is not a fundamental right and the Parliament can by law regulate the working of such associations by imposing conditions and restrictions on such functions.
It cannot be disputed that the fundamental rights guaranteed by Article 19(1)(c) can be claimed by Government servants.
A Government servant may not lose its right by joining Government service.
Article 33 which confers power on the Parliament to abridge or abrogate such rights in their application to the Armed Forces and other similar forces shows that such rights are available to all citizens, including Government servants.
But it is, however, necessary to remember that Article 19 confers fundamental rights which are not absolute but are subject to reasonable restrictions.
What has happened in this case is only to impose reasonable restrictions in the interest of discipline and public order.
357 13.
The validity of the impugned rule has to be judged keeping in mind the character of the employees we are deal ing with.
It is true that the rules impose a restriction on the right to form association.
It virtually compels a Gov ernment servant to withdraw his membership of the associa tion as soon as recognition accorded to the said association is withdrawn or if, after the association is formed, no recognition is accorded to it within six months.
In other words, the right to form an association is conditioned by the existence of the recognition of the said association by the Government.
If the association affairs recognition and continues to enjoy it, Government servants can become mem bers of the said association; if the said association does not secure recognition from the Government or recognition granted to it is withdrawn, Government servants must cease to be members of the said association.
That is the plain effect of the impugned rule.
These rules are protected by Articles 33 and 19(4) of the Constitution.
Besides, it is settled law that the right guaranteed by Article 19(1)(c) to form associations does not involve a guaranteed right to recognition also.
The main grievance of the appellants is that the first appellant Sangh when recognised, comprised of Police Officers of various ranks, the common factor being that all its members were non gazetted police officers.
This composi tion was changed by the impugned rules.
Not only is the composition changed; the entire Sangh stood derecognised for failure to alter its constitution complying with the new rules.
This attack cannot be sustained.
Section 3 of the Act permits the rule making authority to define any group of Police Force that can form an Association.
It also gives power to prescribe the nature of activity that each ' such association of members can indulge in.
It, therefore, fol lows that if rules can be framed defining this aspect, a rule can also be framed enabling the authorities to revoked or cancel recognition once accorded, if the activities offended the rules.
The further grievance of the appellant is that non gazetted officers who once formed one block have been fur ther divided with reference to ranks and that this again is an inroad into their right under Article 19(1)(c).
This submission has been already met.
Besides, this classifica tion based on ranking has its own rationale behind it.
We are dealing with a Force in which discipline is the most important pre requisite.
Non gazetted officers consist of men of all ranks; the lowest cadre and officers who are superior to them.
If all the nongazetted officers are grouped together irrespective of rank, it is bound to affect discipline.
It was perhaps, realising the need to preserve discipline that the changes in the rule were effected.
We are not satisfied that there has been violation of any law in doing so.
358 On a careful consideration of the questions involved in this appeal, we hold that the High Court was right in its decision.
We accordingly dismiss the appeal.
S.R. Appeal dismissed.
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The non gazetted members of the Delhi police Force wanted to form an association of their own and for that purpose constituted the Karmachari Union in 1966 and applied for its registration under the Trade Union Act, 1926 and this was refused.
After the coming into effect from 2.12.1966 of the Police Force (Restriction of Rights) Act, 33 of 1966 another, application for recognition was again made on 9.12.1966 which was granted on 12.12.1966.
The non gazetted members of the Delhi Police Force were permitted to become members of the Sangh.
The Police Force (Restriction of Rights) Rules, 1966 made by the Central Government on 12.12.1966 were amended by the Amendment Rules of 1970.
Rule 11 thereof provides for revocation of the recognition grant ed to an association, if the said associations articles are not in conformity with the Rules or are not brought in conformity with the provisions of the amended Rules within a period of 30 days.
Since the Articles of Association of the appellant Sangh contained a number of provisions not in conformity with the rules and since the Sangh failed to bring the same in conformity, by a circular dated 1.4.1971 the recognition granted was revoked.
The appellants, there fore, filed a writ petition before the Delhi High Court challenging the constitutional validity of the Act, Rules and the impugned circular.
The writ petition having been rejected the appellants have come by way of special leave.
Dismissing the appeal, the Court, 348 HELD: 1.1 The Police Force (Restriction of Rights) Act (33 of) 1966, the Police Force (Restriction of Rights) Rules 1966 (as amended by the 1970 Rules) and the circular dated 1.4.1971 are all constitutionally valid.
They do not offend the provisions of Articles 14 and 19(1)(c) of the Constitu tion.
[350 C, 355 E F] 1.2 The right under Article 19(1)(c) is not absolute.
Article 19(4) specifically empowers the State to make any law to fetter, abridge or abrogate any of the fights under Article 19(1)(c) in the interest of public order and other considerations.
While the right to freedom of association is fundamental, recognition of such association is not a funda mental fights and the Parliament can by law regulate the working of such associations by imposing conditions and restrictions on such functions.
[355 E, 356 F] 1.3 The fundamental fights guaranteed by Article 19(1)(c) can be claimed by Government servants.
A government servant may not lose his right by joining government serv ice.
Article 33 which confers power on the Parliament to abridge or abrogate such rights in their application to the Armed Forces and other similar forces shows that such fights are available to all citizens, including government serv ants.
What has happened in this case is only to impose reasonable restrictions in the interest of discipline and public order.
[356 G H] 1.4 Rule 11 read with Rule 3(c) of the Amended Police Force (Restriction of Rights) Rules, 1966 has to be judged keeping in mind the character of the employees to whom it applies.
It is true that the rules impose a restriction on the right to form association.
It virtually compels a gov ernment servant to withdraw his membership of the associa tion as soon as recognition accorded to the said association is withdrawn or if, after the association is formed, no recognition is accorded to it within six months.
In other words, the right to form an association is conditioned by the existence of the recognition of the said association by the government.
If the association obtains recognition and continues to enjoy it, government servants can become mem bers of the said association, if the said association does not secure recognition from the government or recognition granted to it is withdrawn, government servants must cease to be members of the said association.
That is the plain effect of the impugned role.
These rules are protected by Articles 33 and 19(4) of the Constitution.
Besides, it is settled law that the right guaranteed by Article 19(1)(c) to form associations does not involve a guaranteed right to recognition also.
[357 A C] 1.5 Section 3 of the Police Force (Restriction of Rights) Act permits the rule making authority to define any group of Police Force that can form an Association.
It also gives power to prescribe the nature of activity that each such association of members can indulge in.
It, therefore, follows that if rules can be 349 framed defining this aspect, a rule can also be framed enabling the authorities to revoke or cancel recognition once accorded, if the activities offended the rules.
Besides the classification based on ranking has its own rationale behind it.
The Court is dealing with a Force in which disci pline is the most important prerequisite.
Non gazetted officers consist of men of all ranks; the lowest cadre and officers who are superior to them.
If all the non gazetted officers are grouped together irrespective of rank, it is bound to affect discipline.
It was perhaps, realising the need to preserve discipline that the changes in the rule were effected.
[357E, G ] Damyanti Naranga vs The Union of India & Ors., ; ; Ous Kutilingal Achudan Nair & Ors., vs Union of India & Ors., ; ; and Raghubar Dayal Jai Prakash vs The Union of India & Ors., ; fol lowed.
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N: Criminal Appeal No. 238 of 1988.
From the Judgment and Order dated 4.8.1986 of the Punjab and Haryana High Court in Criminal Appeal No. 329 DB of 1986 and Murder Reference No. 2 of 1986.
Mrs. Urmila Kapoor and Ms. section Janani for the Appellant.
R. section Suri for the Respondent.
The Judgment of the Court was delivered by OJA, J.
This appeal has come to this Court on grant of leave against the conviction of the appellant under Section 302 and sentence of death and also his conviction under Section 201 IPC and sentence of 7 years rigorous imprisonment and fine of Rs.200 awarded by Sessions Judge, Ferozepur and confirmed by the High Court of Punjab & Haryana.
The appellant is convicted for having committed the murder of his father and son.
It is alleged that deceased Banta Singh father of the present appellant owned 4 5 killas of land situated at Ferozepur Road where a tube well was also installed by the side of a samll kotha where he alongwith his grandson Seva Singh used to live away from the house where the appellant resided.
It is alleged that Seva Singh was crippled and used to move about on a tricycle Banta Singh and Seva Singh used to go to Gurudwara of their village to render services.
Banta Singh had only one son i.e. present appellant whereas the appellant had a son Seva Singh the deceased from his first wife (since deceased).
Later he married second time and had two children, but she also died.
At present he has the third wife and with her, he has two sons.
616 It was alleged, as motive for the offence, that the appellant used to quarrel with his father and son in connection with land owned by father as the latter wanted to transfer his land in the name of Seva Singh who used to live with the grandfather.
According to the prosecution a day prior to Amawasaya of Chet 1985 (May 1985) when Nihal Singh (PW 2) was rendering services with Banta Singh and Seva Singh at Gurudwara at about 5 p.m. the appellant went to the Gurudwara and told his father and son that in the evening a truck of Car Seva would come from Fazilka and that they would go to Amritsar to take the holy bath.
On this representation, appellant took Banta Singh and Seva Singh from the Gurudwara.
It is alleged that on the same day at about 10 p.m. when Nihal Singh was proceeding to his fields for guarding his tubewell he met the accused on the way and found carrying dang with him.
On being questioned by Nihal Singh as to why he was there and why he did not go to Amritsar, the appellant replied that Banta Singh and Seva Singh were sent to Amritsar by him in a truck of Car Seva.
It is further alleged that when Nihal Singh did not see for sometime Banta Singh and Seva Singh he felt suspicious and lodged a report dated 10 October 1985 in the Police Station Mamdot.
That became the FIR (exhibit PG).
S.I. Puran Singh who recorded the statement of Nihal Singh raided the house of the appellant who it is alleged was not present.
On 13 of August 1985, it is alleged that the appellant made an extra judicial confession to one Amrik Singh and Amrik Singh produced the appellant before the Police.
On 15 August, 1985, a memorandum under Section 27 of the evidence Act was recorded by the Investigating officer at the instance of the appellant and later the dead bodies of Banta Singh and Seva Singh were recovered from a field.
It is also alleged that at that time there was a Jhinjan crop standing in the field.
The dead bodies were identified by one Channan Singh who was a Panch witness.
The tricycle and other articles were recovered from the Kotha at the instance of the appellant.
On the basis of this evidence, the courts below convicted the present appellant.
The circumstances which have been found against the appellant are: (i) Last seen with the deceased at the Gurudwara by.
Nihal Sing (ii) extra judicial confession made to Amrik Singh (iii) the statement under Section 27 leading to discovery of dead bodies and (iv) recovery of tricycle and other articles from the Kotha where the two deceased used to reside and the motive alleged against the appellant.
617 Learned counsel for the appellant contended that as against the motive is concerned.
the appellant at the trial had produced a will A executed by deceased Banta Singh wherein he has given away all his lands to the appellant.
In the cross examination of prosecution witnesses it was suggested that . that his brother in law Manjit Singh was interested in getting the property transferred in his name or in his wife 's name.
It was also argued that extra judicial confession even otherwise is a very weak piece of evidence and in this case it is strange that the appellant chose this Amrik Singh to make an extra judicial confession and the reasons suggested by Amrik Singh also do not appear to be justifiable.
Similarly it was said that the recovery of dead bodies and the memorandum of the statement leading to the discovery are of no consequence as even according to the Investigating officer he had learnt from Amrik Singh that the dead bodies were in the field but he felt that the information he had got was not sufficient and therefore he recorded the information under Section 27 given by the appellant.
In our opinion, these contentions are well founded and must be accepted as correct.
The field where the bodies were recovered is an open place.
It is alleged that there was Jhinjan crop standing in the field and prosecution has not led any evidence to indicate as to who was in possession of the field and who cultivated the crop which was standing at that time.
We will discuss this part of the case in detail a little later.
It is very significant to note that according to the medical opinion bodies were recovered about three months after the death.
The bodies were found disintegrated.
It was difficult to identify.
The disintegration has gone to such an extent that the bodies could not be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem.
The prosecution did not examine any one of the relatives or the daughter of deceased Banta Singh or the son in law Manjit Singh to identify the dead bodies although it has appeared in evidence that during the trial Manjit Singh was present in the Court.
As to the extra judicial confession, it may be noted that Nihal Singh claims to be a person who had seen the deceased Banta Singh and Seva Singh alongwith the appellant in the month of May in the Gurudwara.
On the same night he again met the appellant and enquired about them.
The witness also stated that when he did not see the old man for some time, he became suspicious about the missing of those two persons.
This witness in order to justify his meeting with the appellant at 10 P.M.
On that day said that although his own land was at 618 a distance, he had taken some land on lease which was adjacent to the land of the appellant and so he had to go near the appellant 's house.
But in cross examination he had to admit that for the lease he had no document to support.
The prosecution has suggested that the appellant did not search for his father, but according to the appellant, the deceased had been taken away by Manjit Singh to their place on the pretext that Manjit Singh 's wife i.e. the appellant 's sister was not well and this was also put in cross examination to Nihal Singh.
In the absence of evidence of Manjit Singh, the suggestion of the appellant cannot be brushed aside.
On 10 August, 1985 F.I.R. was lodged by Nihal Singh (PW 2)1 and on 13.8.85 the appellant went to Amrik Singh (PW 3) to make an extra judicial confession.
Amrik Singh says that the appellant told him that as the Police was after him he had come and confessed the fact so that he might not be unnecessarily harrased.
There is nothing to indicate that this Amrik Singh was a person having some influence with the Police or a person of some status to protect the appellant from harrassment.
In his cross examination he admits that he is neither the Lumbardar or Sarpanch nor a person who is frequently visiting the Police Station.
He further admits that when he produced the appellant there was a crowd of 10 to 12 persons.
There is no other corroborative evidence about the extra judicial confession.
As rightly conceded by the learned counsel for the State that extra judicial confession is a very weak piece of evidence and is hardly of any consequence.
The council however, mainly relied on motive, the evidence of last seen, the evidence of recovery of dead bodies and the conduct of the appellant in not making a report about the missing father and son.
As regards the motive the will in question is sufficient to dislodge it.
An attempt was made by the learned counsel for the State to suggest that even after the will the appellant could have done away with the old man to avoid changing the will.
But the will was executed on 31 December, 1984 and it is a figment of imagination that the murder was committed apprehending that the will likely to be changed.
There is also no evidence to indicate that appellant was not having good relations with his father or that there was ever any trouble between father and the son.
In fact Nihal Singh was asked in cross examination as to whether there was any dispute between the father and son? He had to admit that there was no dispute or difference.
As regards the evidence of last seen it was the case of appellant 619 that Manjit Singh had taken Banta Singh and Seva Singh to his place on the pretext that the wife of Manjit Singh was not well.
There is no evidence led by the prosecution to negative this stand of the appellant.
Manjit Singh has not been examined although it has come in evidence that he was present in the Court when Nihal Singh was examined.
The sister of appellant was also not examined and in the absence of any such evidence to negative this stand of the appellant it could not be said that the prosecution has proved that suggestion was false.
In these circumstances, the presence of deceased Banta Singh and Seva Singh along with the appellant at the Gurudwara on the Amawasaya day in Chet could not be said to be the last seen before the murder in question.
May be, Nihal Singh saw them on that day but it is significant that no other person connected with the deceased has been produced to suggest that he was not seen thereafter.
Therefore, the evidence as to last seen also can not be considered as a piece of circumstantial evidence against the appellant.
Then we are left with the recovery of the dead bodies.
Investigating officer S.I. Puran Singh (PW 8) admitted in cross examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other articles were kept buried and concealed.
This clearly indicates that he could get some information from the statement of Amrik Singh.
As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field.
The Investigating officer himself admitted that after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient.
It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none alse.
Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstances against the appellant.
As regards the recovery made from the Kotha where the deceased Banta Singh and Seva Singh used to reside there is nothing significant.
The tricycle and other belongings of the deceased were bound to be there and on that basis no inference could be drawn against the appellant.
620 In view of all these circumstances, the charge against the appellant cannot be said to have been proved beyond doubt and the conviction of the appellant Therefore cannot be sustained.
The appeal is therefore allowed.
Conviction and sentence passed against the appellant are set aside.
He is in custody.
He be set at liberty forthwith if not wanted in connection with any other case.
P.S.S. Appeal allowed.
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The appellant was convicted under section 302 read with section 201 IPC for having committed the murder of his father and son.
It was alleged, as motive for offence, that the appellant used to quarrel with his father as the latter wanted to transfer his land in the name of his grandson, who used to live with him.
PW. 2 had deposed that a day prior to Amawasya of Chet 1985 at about 5 p.m. he had seen the two deceased persons at the Gurdwara when appellant went there and told them that he had arranged for their visit to Amritsar, through the car seva truck coming that evening, to take the holy bath.
He had met the appellant that very night at about 10 p.m.
On his way to the fields and enquired of him why he too did not go to Amritsar.
And, that when he did not see the deceased for sometime he felt suspicious and lodged a report with the police on 8th August, 1985, which became the FIR.
On 13th August, 1985 the appellant is alleged to have made an extrajudicial confession to PW. 3, his sister 's husband, who is said to have produced him before the police.
On 15th August, 1985 a memorandum under section 27 of the Evidence Act was recorded by the investigating officer at the instance of the appellant and later dead bodies were recovered from field and identified.
The belongings of the deceased were recovered from the Kotha in the fields, where the deceased used to reside, at the instance of the appellant.
Based on this evidence the appellant was convicted and sentenced to death by the Sessions Court.
That order was upheld by the High Court.
614 Allowing the appeal by special leave, ^ HELD: The charge against the appellant cannot be said to have been proved beyond doubt.
His conviction, therefore, cannot be sustained.
[620] Extra judicial confession is a very weak piece of evidence and is hardly of any consequence.
3 says that the appellant told him that as the police was after him he had come and confessed the fact so that he might not be unnecessarily harassed.
There is nothing to indicate that this witness was a person having influence with the police or a person or some status to protect the appellant from harassment.
There is no other corroborative evidence about the extra judicial confession.
[618D E] As regards the motive, the will was executed on 31st December, 1984 and it is a figment of imagination that the murder was committed apprehending that the will was likely to be changed.
There is also no evidence to indicate that appellant was not having good relations with his father or that there was ever any trouble between father and the son.
[618F G] The evidence as to last seen also cannot be considered as a piece of circumstantial evidence against the appellant.
The case of the appellant was that his brother in law, Manjit Singh, had taken the deceased to his place on the pretext that appellant 's sister was not well.
There is no evidence led by the prosecution to negative this stand.
May be, PW. 2 saw them with the appellant at the Gurdwara on the Amawasaya day in Chet but it is significant that no other person connected with the deceased has been produced to suggest that he was not seen there after.
[619B C] As regards the recovery of dead bodies, the investigation officer himself admitted that after recording the statement of PW. 3 he knew that the bodies were buried in the field but he felt that information was not sufficient.
The said field is an open place surrounded by other fields.
It cannot be said that any one else could not have known about the bodies being buried there.
Since exclusive knowledge to the appellant cannot be attributed, the evidence under section 27 of the Evidence Act also cannot be said to be a circumstance against the appellant.
[619E G] According to the medical opinion, bodies were recovered about three months after the death.
The bodies were found disintegrated.
It was difficult to identify.
The disintegration had gone to such an extent 615 that the bodies could not be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem.
The prosecution did not examine any one of the relatives or the daughter of deceased or his son in law to identify the dead bodies although it has appeared in evidence that during the trial the said son in law was present in the Court.
[617E F] As regards recovery made from the Kotha where the deceased used to reside, there is nothing significant.
Their belonging were found to be there and on that basis no inference could be drawn against the appellant.
[61G H]
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1. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 13.03.2020 passed by the High Court of Madhya Pradesh,
Principal Seat at Jabalpur in M.P. No. 508 of 2019, by which the High Court
has allowed the said writ petition and has quashed and set aside the order
passed by the Additional Commissioner, Rewa Division, Rewa, directing to
mutate the name of the petitioner herein in the revenue records, which
was sought to be mutated on the basis of the will, the original respondent
no.6 has preferred the present special leave petition.
2. That the petitioner herein filed an application under Section
109/110 of the Madhya Pradesh Land Revenue Code to mutate his name
in the revenue records in respect of Khasra No. 41/03, 101/03, 314/03,
102/02, 132/02, 133/03, 142/02, 145/02, 146/02, 313/01, total area of
4.53 acres situated in village Dudha, Tehsil Rampur Baghelan, District
Satna, on the basis of the alleged will executed by one Smt. Ananti Bai,
widow of Bhagwandeen Bargahi – his maternal grandmother. The alleged
initially it was the case on behalf of the petitioner that Smt. Ananti Bai
died on 20.05.1998, however, subsequently, it was stated that there was a
typographical error and Smt. Ananti Bai died on 27.08.2011. It is to be
noted that the application for mutation was filed on 9.8.2011, i.e., even
prior to the death of Smt. Ananti Bai. Therefore, even the application was
filed against Ananti Bai when she was alive.
3. By order dated 30.09.2011, the Nayab Tehsildar, District Satna
directed to mutate the name of the petitioner herein in the revenue
records in respect of the aforesaid lands solely on the basis of the alleged
will dated 20.05.1998. The legal heirs and daughters of Smt. Ananti Bai
preferred appeal before the Sub-Divisional Officer, Tehsil Rampur
Baghelan, District Satna, Madhya Pradesh. The SDO allowed the said
appeal and set aside the order passed by the Nayab Tehsildar directing to
mutate the name of the petitioner herein in the revenue records. The
petitioner herein preferred appeal before the learned Additional
Commissioner, Rewa Division, Rewa challenging the order passed by the
SDO dated 12.09.2018. The learned Additional Commissioner, Rewa
Division, Rewa allowed the said appeal and quashed and set aside the
order passed by the SDO dated 12.09.2018 and consequently the order
passed by the Nayab Tehsildar directing to mutate the name of the
petitioner herein in the revenue records on the basis of the alleged will
dated 20.05.1998 came to be restored. By the impugned judgment and
order, the High Court has set aside the order passed by the Additional
Commissioner observing that once the will is disputed and even otherwise
the petitioner who is claiming rights/title on the basis of the will executed
by the deceased Ananti Bai, the remedy available to the petitioner would
be to file a suit and crystalise his rights and only thereafter the necessary
consequence shall follow.
4. Feeling aggrieved and dissatisfied with the impugned judgment and
order passed by the High Court, the original applicant has preferred the
present special leave petition.
5. We have heard Shri Nishesh Sharma, learned Advocate appearing
for the petitioner.
It is not in dispute that the dispute is with respect to mutation entry in the
revenue records. The petitioner herein submitted an application to mutate
his name on the basis of the alleged will dated 20.05.1998 executed by
Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai
died on 27.08.2011. From the record, it emerges that the application
before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of
Smt. Ananti Bai. It cannot be disputed that the right on the basis of the
will can be claimed only after the death of the executant of the will. Even
the will itself has been disputed. Be that as it may, as per the settled
proposition of law, mutation entry does not confer any right, title or
interest in favour of the person and the mutation entry in the revenue
record is only for the fiscal purpose. As per the settled proposition of law,
if there is any dispute with respect to the title and more particularly when
the mutation entry is sought to be made on the basis of the will, the party
who is claiming title/right on the basis of the will has to approach the
appropriate civil court/court and get his rights crystalised and only
thereafter on the basis of the decision before the civil court necessary
mutation entry can be made.
6. Right from 1997, the law is very clear. In the case of Balwant Singh v.
Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an
occasion to consider the effect of mutation and it is observed and held that
mutation of property in revenue records neither creates nor extinguishes title to
the property nor has it any presumptive value on title. Such entries are relevant
only for the purpose of collecting land revenue. Similar view has been
expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it
is observed and held by this Court that an entry in revenue records does not
confer title on a person whose name appears in record-of-rights. Entries in the
revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land
revenue, and no ownership is conferred on the basis of such entries. It is
further observed that so far as the title of the property is concerned, it can only
be decided by a competent civil court. Similar view has been expressed in the
cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v.
Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368;
Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689;
T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo
Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v.
Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13
7. In view of the above settled proposition of law laid down by this Court, it
cannot be said that the High Court has committed any error in setting aside the
order passed by the revenue authorities directing to mutate the name of the
petitioner herein in the revenue records on the basis of the alleged will dated
20.05.1998 and relegating the petitioner to approach the appropriate court to
crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in
complete agreement with the view taken by the High Court.
8. The special leave petition is accordingly dismissed.
9. Pending applications shall stand disposed of.
Petition for Special Leave to Appeal (C) No. 13146/2021
(Arising out of impugned final judgment and order dated 13-03-2020 in MP No.
508/2019 passed by the High Court of M.P Principal Seat at Jabalpur)
(FOR ADMISSION and I.R. and IA No.106233/2021-EXEMPTION FROM FILING C/C
OF THE IMPUGNED JUDGMENT and IA No.106235/2021-EXEMPTION FROM FILING
Date : 06-09-2021 This petition was called on for hearing today.
UPON hearing the counsel the Court made the following
The Special Leave Petition is dismissed in terms of the signed order.
Pending applications shall stand disposed of.
|
The Supreme Court observed that mutation entry in the revenue record is only for fiscal purposes and does not confer any right, title or interest in favour of a person."If there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach...
The Supreme Court observed that mutation entry in the revenue record is only for fiscal purposes and does not confer any right, title or interest in favour of a person.
"If there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made, the bench of Justices MR Shah and Aniruddha Bose observed.
In this case, the Additional Commissioner, Rewa Division, Rewa, directed to mutate the name of the petitioner in the revenue records, on the basis of the a will produced by him. The Madhya Pradesh High Court, in a petition filed by some parties, set aside the order and directed the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. The petitioner therefore filed Special Leave Petition before the Apex Court
'5..Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made", the bench observed.
The court referred to the judgment in Balwant Singh v. Daulat Singh (D) (1997) 7 SCC 137.
"Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.", the Court said.
The bench further noted that in Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it was held that an entry in revenue records does not confer title on a person whose name appears in record-of-rights.
"Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court.", it noted.
The court noticed that similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70. 7. In vi
Upholding the High Court judgment, the bench dismissed the Special Leave Petition.
|
ivil Appeal No. 544 of 1975.
From the Judgment and Order dated 20.8.
1973 of the Gujarat High Court in Special Civil Application No. 631 of 1970.
C.M. Lodha and Miss Subhashini for the Appellant.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This is an appeal by the Revenue by special leave and is directed against the judgment of the Gujarat High Court dated August 20, 1973 in a writ petition.
The High Court quashed the notice for reassessment issued under section 147(b) of the Income tax Act, 1961 (hereinaf ter referred to as 'the Act ') for the assessment year 1965 66.
Inspite of service of notice, the assessee respondent has not appeared.
The High Court has quashed the notice by accepting the assessee 's contention that the action of the Income tax Officer was barred by limitation prescribed by the Act.
There is no dispute that the notice in this case under section 147(b) of the Act was issued by registered post on March 31, 1970, and was received by the assessee on April 3, 1970.
To the facts of the case, section 147(b) of the Act applies.
The two relevant provisions are in sections 148 and 149 of the Act which provide: "148(1) Before making the assessment, reas sessment or recomputation under section 147, the Income tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section.
44 (2). . . . . . . "149(1) No notice under section 148 shall be issued, (a). . . . . . . (b) In cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant as sessment year.
(2) The provisions of sub section (1) as to the issue of notice shall be subject to the provisions of section 151." The High Court relied upon the decision of this Court in the case of Banarsi Debi & Anr.
T. 0., District IV, Cal cutta & Ors., where the validity of a notice under section 34(1) of the Incometax, Act, 1922 and the scope of section 4 of the Income tax (Amendment) Act of 1959 by which sub section (4) was introduced into section 34 were considered.
This Court indicated, keeping the provisions of section 34 in view, that there was really no distinction between "issue" and "service of notice".
Section 34, sub section (1) as far as relevant provided thus: "34(1) If (a). . . . . . . (b) . . he may in cases falling under clause (a) at any time within 8 years and in cases falling under clause (b) at any time within four years at the end of that year, serve on the assessee, . . and may proceed to assess or reassess such income . . ." Section 34, conferred jurisdiction on the Income tax Officer to reopen an assessment subject to service of notice within the prescribed period.
Therefore, service of notice within limitation was the foundation of jurisdiction.
The same view has been taken by this Court in Janni vs Indu Prasad Bhat, as also in C.I.T. vs Robert, The High Court in our opinion went wrong in relying upon the ratio of in disposing of the case in hand.
The scheme of the 1961 Act so far as notice for reassessment is concerned is quite different.
What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147, 148 and 149 in the 45 1961 Act.
A clear distinction has been made out between 'issue of notice ' and 'service of notice ' under the 1961 Act.
Section 149 prescribe the period of limitation.
It categorically prescribes that no notice under section 149 shall be issued after the prescribed limitation has lapsed.
Section 148(1) provides for service of notice as a condition precedent to making the order of assessment.
Once a notice is issued within the period of limitations, jurisdiction becomes vested in the Income tax Officer to proceed to reassess.
The mandate of section 148(1) is that reassessment shall not be made until there has been service.
The require ment of issue of notice is satisfied when a notice is actu ally issued.
In this case, admittedly, the notice was issued within the prescribed period of limitation as March 31, 1970, was the last day of that period.
Service under the new Act is not a condition precedent to conferment of jurisdic tion in the Income tax Officer to deal with the matter but it is a condition precedent to making of the order of as sessment.
The High Court in our opinion lost sight of the distinction and under a wrong basis felt bound by the judg ment in As the Income tax Officer had issued notice within limitations, the appeal is allowed and the order of the High Court is vacated.
The Income tax Officer shall now proceed to complete the assessment after complying with the requirements of law.
Since there has been no ap pearance on behalf of the respondents, we make no orders for costs.
A.P.J. Appeal allowed.
|
The respondent challenged the notice for reasessment issued under section 147(b) of the Income Tax Act, 1961 for the assessment year 1965 66.
The High Court quashed the notice holding that the action of the Income Tax Officer was barred by limitation prescribed by the Act.
Allowing the appeal of the Revenue, HELD: 1.
The scheme of the 1961 Act so tar as notice for reassessment is concerned is quite different.
What used to be contained in section 34 of the 1922 Act has been spread out into three sections, being sections 147.
148 and 149 of the 1961 Act.
A clear distinction has been made out between "issue of notice" and "service of notice" under the 1961 Act.
Section 149 prescribes the period of limitation.
It categor ically prescribes that no notice under section 148 shall be issued after the prescribed limitation has lapsed.
Section 148(1) provides for service of notice as a condition prece dent to making the order of assessment.
Once a notice is issued within the period of limitations, jurisdiction be comes vested in the Income Tax Officer to proceed to reas sess.
The mandate of section 148(1) is that reassessment shall not be made until there has been service.
The requirement of issue of notice is satisfied when a notice is actually issued.
Banarsi Debi & Anr.
vs L T.O. District IV, Calcutta & Ors., ; Janni vs Indu Prasad Bhat, and C.I.T. vs Robert, , distinguished.
In the instant case, notice was issued within the prescribed period 43 of limitation as March 31, 1970 was the last day of that period.
Service under the new Act is not a condition prece dent to conferment of jurisdiction in the Income Tax Officer to deal with the matter but it is a condition precedent to making of the order of assessment.
The High Court lost sight of the distinction and under a wrong basis felt bound by the judgment in Banarsi Debi & Anr.
T. 0., District IV, Calcutta & Ors., ( As the Income Tax Officer had issued notice within limitation the order of the High Court is vacated.
|
criapl988.22+
1) Shaikh Sana Farheen Shahmir,
Age-24 years, Occu:Student,
2) Shahmir Shamshoddin Shaikh,
Age-46 years, Occu:Service,
3) Shaikh Khaja Begum Shaikh Shahmir,
Age-40 years, Occu:Household,
4) Shaikh Saziya Sadaf Shaikh Shahmir,
Age-19 years, Occu:Student,
All R/o-Aziz Colony, Naregaon,
Aurangabad, District-Aurangabad.
(Orig. accused Nos.1 to 4)
1) The State of Maharashtra,
Through Police Station Officer,
Kranti Chowk Police Station,
District-Aurangabad,
2) Deepak Ramdas Sonawane,
Age-26 years, Occu:Nil,
R/o-Flat No.223, Naik Nagar,
Deolai Parisar, Aurangabad,
Taluka and District-Aurangabad.
Mr. V.D. Sapkal, Senior Counsel i/b. Mr. Patel Khizer Advocate
for Appellants.
Mr. S.D. Ghayal, A.P.P. for Respondent No.1 – State.
Mr. S.B. Deshpande Advocate for Respondent No.2.
criapl988.22+
Deepak Ramdas Sonawane,
Age-26 years, Occu:Nil,
R/o-223, Naik Nagar,
Deolai Parisar, Aurangabad.
1) The State of Maharashtra,
Through City Chowk Police Station,
Aurangabad
2) Shaikh Sana Farheen Shahmir,
Age-24 years, Occu:Student,
3) Shahmir Shamshoddin Shaikh,
Age-46 years, Occu:Service,
4) Shaikh Khaja Begum Shaikh Shahmir,
Age-40 years, Occu:Household,
5) Shaikh Saziya Sadaf Shaikh Shahmir,
Age-19 years, Occu:Student,
All R/o-Aziz Colony, Naregaon,
Aurangabad, District-Aurangabad.
Mr. Swapnil B. Joshi Advocate for Appellant.
Mr. S.D. Ghayal, A.P.P. for Respondent No.1 – State.
Mr. V.D. Sapkal, Senior Counsel i/b. Mr. Patel Khizer Advocate
for Respondent Nos.2 to 5.
criapl988.22+
1.Admit.
2.The appellants in Criminal Appeal No.988 of 2022 are the
original accused Nos.1 to 4 in Crime No.299 of 2022 registered
with Kranti Chowk Police Station, District-Aurangabad, which is
lodged at the behest of respondent No.2 – original informant.
The appellants had filed application under Section 438 of the
Code of Criminal Procedure, bearing Anticipatory Bail Application
Nos.2353 of 2022 before the learned Special Judge under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act (for short “Atrocities Act”), Aurangabad. The said application
came to be rejected on 20th December 2022. Hence the
appellants have filed Criminal Appeal No.988 of 2022 under
Section 14-A(2) of the Atrocities Act.
3.In Criminal Appeal No.988 of 2022, heard Mr. V.D. Sapkal,
learned Senior Counsel instructed by Mr. Patel Khizer Advocate
for Appellants, Mr. S.D. Ghayal, learned APP for Respondent No.1
criapl988.22+
– State and Mr. S.B. Deshpande, learned Advocate for
Respondent No.2. In Criminal Appeal No.20 of 2023 heard
learned Advocate Mr. Swapnil B. Joshi for the Appellant and
learned APP as well as learned Senior Counsel appearing for
respective respondents.
4.It has been submitted by learned Senior Counsel Mr.
Sapkal instructed by Mr. Patel Khizer, learned Advocate for
Appellants in Criminal Appeal No.988 of 2022 that the learned
Special Judge wrongly held that taking into consideration the
seriousness, sensitivity, gravity and the offence, crucial stage of
investigation and as there is bar under Section 18 and 18-A of
the Atrocities Act, it will not be proper to release the accused on
pre-arrest bail and thereby refused to grant the anticipatory bail.
The learned Special Judge failed to consider that in the First
information Report (for short “FIR”) itself respondent No.2 has
come with the case that there was love affair between him and
accused No.1 and there was exchange of the amounts in lakhs of
rupees between them. According to the informant the offence
had taken place between 1st March 2018 to 20th August 2022, yet
he lodged the report with Kranti Chowk Police Station on 2nd
December 2022. There is total suppression of the earlier
complaint which he had filed with City Chowk Police Station and
criapl988.22+
when City Chowk Police Station refused to take cognizance, he
approached to Kranti Chowk Police Station. One more aspect
from the contents of the FIR which is required to be considered
is that there is total suppression of the offence lodged with
Chikalthana Police Station, Aurangabad bearing Crime No.363 of
2022 on 3rd September 2022 by accused No.1 against the
informant for the offence punishable under Sections 376(2)(n),
384, 354, 354-D, 506 read with Section 34 of the Indian Penal
Code. The documents regarding conversation on WhatsApp
between accused No.1 and the informant would show that there
was love affair between them. When there is a love affair, then
there is no scope for caste or community. It also appears that
the accused Nos.2 and 3, who are the parents of accused No.1,
had no objection for their relationship. But informant says that
they all were insisting that he should accept Islam, get himself
converted and then perform marriage with accused No.1. The
informant has stated that somewhere in March 2021 there was
forcible circumcision ( Khatana). It was impressed upon the
informant that after the circumcision he has become Muslim and
then by giving threats he was left home. But, still then the
informant says that he had paid lakhs of rupees to accused No.1
and total amount which he gives, which were given by him to
criapl988.22+
accused No.1 was amounting to Rs.11,00,000/-. It is the say of
the informant that thereafter also the accused persons asked
him to give amount of Rs.25,00,000/- which he refused to pay
and then offence under Section 354 of the Indian Penal Code
was filed by accused No.1 against him with MIDC, Cidco Police
Station on 29th September 2021. He says that even in the
premises of the District Court, Aurangabad he was threatened.
Informant further says that it was told by accused No.1 to him
that she got married in January 2022 but she wants to get
divorce and wants to marry him and therefore, he should give
her amount. So from February to August, 2022 the informant
had transferred amount of Rs.1,70,000/- in the account of
accused No.1. Again the informant says that accused No.1 was
threatening him and asking him to convert himself and was
making demand for the amount. On 21st March 2022 it is stated
that he was abused in the name of the caste. It is submitted that
all these contentions would show that as per the convenience,
the informant was changing his story. Rather on 21st March 2022
the informant had given affidavit stating that due to some
misunderstanding the offences were registered against each
other but now there is settlement and there is no dispute
pending against each other. The said document has been
criapl988.22+
notarized on 21st March 2022 before the Notary Public. Even a
colour of Love-Jihad was tried to be given to the entire story,
however the police are negativating that angle. News item to
that extent has also been published. The story that has been
given in the FIR is concocted. Now it appears that the
investigation is almost complete and only the act of filing of
charge-sheet is remained. The learned trial Judge had also
granted interim protection to the accused persons and all the
accused have cooperated with the investigation. The offences
under the Atrocities Act are prima facie not attracted taking into
consideration the admitted love relationship between the
informant and accused No.1. Reliance has been placed on the
decision in Mr. ABC vs. the State of Maharashtra and
another, 2021 All MR (Cri) 3664 , wherein almost on the
similar facts, where there were exchanges of WhatsApp
messages when it was found that there was love affair, it was
held that no offence under the Atrocities Act can be said to be
made out.
5.Learned Advocate Mr. Deshpande has made submissions
on behalf of the informant in Criminal Appeal No.998 of 2022.
criapl988.22+
6.The informant has also filed Criminal Appeal No.20 of 2023
under Section 14-A of the Atrocities Act to challenge the order of
extending interim protection by the learned Special Judge in the
said Bail Application No.2353 of 2022 by order dated 20th
December 2022 to original accused Nos.1 to 4. It has been
submitted by learned Advocate Mr.Joshi that though the learned
Special Judge rejected both the applications, yet relied on Dr.
Sameer Narayanrao Paltewar vs. the State of
Maharashtra, Criminal (APL) 393 of 2021, decided by the
learned Single Judge of this Court, Bench at Nagpur on 21st
August 2021. It has been submitted that when the application
itself was not maintainable under Section 438 of the Code of
Criminal Procedure in view of the bar under Section 18 and 18-A
of the Atrocities Act, the relief or directions under Section 438(4)
of the Code of Criminal Procedure could not have been extended.
It has been submitted that the decision in Prathvi Raj
Chauhan vs. Union of India and others, 2020 AIR (SC)
1036, has not been considered in proper context by the learned
Special Judge.
7.It has been further submitted on behalf of the informant
while supporting the reasons for rejecting the anticipatory bail
application, that the offence is serious. Though there was a love
criapl988.22+
affair between the informant and accused No.1, yet accused
No.1 as well as her family members i.e. her parents and sister
were insisting that the informant should convert himself to Islam
and for that purpose by asking him to come to Gulmandi,
Aurangabad in March 2021, informant was forcibly taken to
Naregaon, where he was confined in a room. Even accused No.2
urinated on him and entire scene has been video-graphed by
accused No.1. It was to force the informant to accept Islam.
Thereafter the informant was brought to City Chowk and taken
to nearby hospital. It was told to him that he has been brought
there for circumcision and if he speaks anything then he would
be defamed by making his video viral. It is then stated that the
informant was confined and then his circumcision has been done.
Everything has been done under pressure and by applying
physical force. Even huge amount has been extracted forcibly
from him which is amounting to extortion and then the informant
has been abused in the name of the caste. There are lodgments
of various complaints even by the informant against the accused
persons. In fact the informant was trying to lodge the report
even since prior to 2nd December 2022 and actually he had
tendered written complaints on 20th August 2022, 22nd August
2022, 2nd September 2022 etc. to the Police Commissioner,
criapl988.22+
Aurangabad, however, no action was taken. Reliance has been
placed on the affidavit on behalf of respondent No.2, which is
nothing but the reproduction of his FIR and other complaint
applications which he has filed.
8.It has been further submitted on behalf of the informant
that the accused persons have now taken help of local MLA and
as regards the incident dated 20th August 2022 is concerned, the
accused persons with the said MLA, his security guard and two
unknown persons had abused the informant in the name of his
caste, assaulted him at the gunpoint in front of the house of the
MLA and it is stated that the police persons, whose help was
taken by the informant immediately after the incident, in their
statements under Section 161 of the Code of Criminal Procedure
have disclosed the involvement of the MLA, yet he has not been
arrayed as an accused nor any action for his arrest has been
undertaken. Rather the informant has grievance against the
investigating agency. The investigation is still incomplete and
therefore, the decision taken by the learned Special Judge while
rejecting the anticipatory bail application is absolutely correct,
however, the protection that was granted to the accused persons
deserves to be set aside.
criapl988.22+
9.Per contra, the learned APP also supported the reasons
given by the learned Special Judge while rejecting the
application and submitted that the contents of the FIR as well as
the police papers would show that there is sufficient material to
attract the provisions under the Atrocities Act. Though the
accused persons had knowledge about the caste of the
informant, yet they abused him, they have assaulted him. There
is an attempt to convert the informant into Islam and for that
purpose his circumcision has been done. Informant was required
to undergo the medical examination and the medical opinion has
been given that the informant has undergone circumcision.
There are statements of the witnesses which would show that
there was force on the informant from the accused persons to
get himself converted. Therefore, taking into consideration the
seriousness of the offence as well as the fact that abuses were
given in the name of caste in a public view, the learned trial
Judge has correctly held that the application is barred under
Section 18 and 18-A of the Atrocities Act.
10.First of all we would like to consider Criminal Appeal
No.988 of 2022, which is filed by the original accused persons.
Perusal of the FIR lodged by respondent No.2 would clearly do
not show any specific role to accused No.4 who is the sister of
criapl988.22+
accused No.1. Furthermore, accused No.4 is only 19 years old
girl, whereas respondent No.2 is 26 years old. Why she would
give abuses on the name of the caste to respondent No.2 is a
question and also whatever allegations are stated to be against
her are in chorus with other accused. Therefore, clearly offences
under the Atrocities Act are prima facie not made out against
accused No.4.
11.As per the FIR itself the informant is admitting his love
affair with accused No.1. He has stated that they were
classmates since 2018 and after the initial friendship, love
developed between them. It is not the case of the informant that
he has never disclosed his caste to accused No.1. He was
acquainted with accused Nos.2 and 3 also, who are the parents
of accused Nos. 1 and 4. He himself says that when accused
No.1 was insisting that he should perform marriage with her and
it should be by acceptance of Islam by him, he had told the said
fact to accused Nos.2 and 3 and at that time they had given
understanding to accused No.1. That means he has posed, prima
facie a good relationship between him and accused Nos.2 and 3
at that point of time. When the initial relationship was good and
the caste or the religion was not the barrier for them, then the
question of raising the issue of caste or community or religion at
criapl988.22+
a later point of time will not arise. It appears that thereafter the
relationship was bitter. The informant says in his FIR that
demand about his conversion to Islam before the marriage was
made by accused No.1 prior to March 2021 but then he does not
say that he severed his relationship with accused No.1. He states
about his alleged abduction plus confinement and also
circumcision somewhere in March 2021. But, still the informant
had not lodged immediate FIR, but then he says that thereafter
also he had given money, online to accused No.1. Informant
states that he has transferred more than lakhs of rupees in the
account of accused No.1, still he had not severed the
relationship. Each time even after the offences were registered
by accused No.1 against him, he has not lodged any report. This
is what is surprising here.
12.The informant further states that around February 2022
accused No.1 met him, informed him that her marriage had
taken place but still she wants to get divorce from the husband
and for that purpose he should help her financially. This fact also
appears to have not prompted him to lodge a report. Thereafter
also informant has transferred amount in the account of accused
No.1 as per his own contentions and the ultimate event is said to
have been taken place on 12th August 2022. No doubt the
criapl988.22+
documents produced by the informant definitely shows that he
had tried to lodge report prior to 2nd December 2022 but it
appears that it was not recorded by the police. But he could have
definitely filed a private complaint with the appropriate Court but
he has not done that. Thus even the apparent look at FIR, which
is permissible in view of Prathvi Raj Chauhan vs. Union of
India and others , (supra), we can see that there is inordinate
delay in lodging the FIR. When there is inordinate delay, it
affects the story and may loose its importance. The fact will have
to be observed that when the base for the relationship was the
love affair, there was no barrier of caste or religion and
therefore, prima facie case under the Atrocities Act cannot be
said to be made out. Definitely the observations in Mr. ABC vs.
the State of Maharashtra and another, (supra) are helpful
here. The learned Special Judge erred in stating that the
application under Section 438 of the Code of Criminal Procedure
filed by the present appellants was barred under Section 18 and
18-A of the Atrocities Act.
13.Another aspect also ought to be taken into consideration
that on 3rd September 2022 accused No.1 had already filed FIR
against respondent No.2 – informant with Chikalthana Police
Station, for the offence punishable under Sections 376(2)(n),
criapl988.22+
384, 354, 354-D, 506 read with Section 34 of the Indian Penal
Code, which is against the informant herein as well as his family
members, wherein also present accused No.1 has alleged that
she has given amount of around Rs.96,000/- to informant,
online. Definitely it can be supported by a documentary
evidence. This shows that there were financial transactions
between the informant and accused No.1 and when such transfer
of amount is made online, there is less possibility of amount
being extracted, however, that depends upon the facts of the
case.
14.It appears that now the colour has been tried to be given
of Love-Jihad, but when love is accepted then there is less
possibility of the person being trapped just for converting him
into the other’s religion. The facts of the case i.e. contents of the
FIR would show that there were many opportunities to the
informant for severing his relationship with accused No.1 but he
has not taken that step. Merely because the boy and girl are
from different religion, it cannot have a religions angle. It can be
a case of pure love for each other.
15.It is to be noted that accused No.1 has filed other cases
also against the informant and out of which some are prior in
criapl988.22+
time. Though the informant appears to have praying for action to
be taken against accused persons since 20th October 2021 in
which he has made allegations about pressurizing him to convert
to Islam and when no action was taken by the Police
Commissioner, he has filed complaint before the Judicial
Magistrate First Class, Aurangabad. In the said compliant he had
not made allegations about abuses in the name of the caste
thereby making allegations that the offence under the Atrocities
Act is also involved. If that would have been so, then the private
complaint ought to have been lodged before the learned Special
Judge under the Atrocities Act. However, learned Judicial
Magistrate First Class (Court No.9), Aurangabad by order dated
31st December 2021, refused the prayer for sending the matter
for investigation under Section 156(3) of the Code of Criminal
Procedure and kept the matter for verification of the
complainant. No further document has been produced by the
informant that as to whether he has challenged the said order
about rejection of his application for sending the matter for
investigation under Section 156(3) of the Code of Criminal
Procedure.
16.Another fact to be noted is that though these matters were
goingon, still on 21st March 2022 it is stated that there was
criapl988.22+
settlement and affidavit has been sworn by the informant stating
that the dispute between him and accused No.1 had arisen due
to misunderstanding and now there is settlement between them.
No doubt the learned Advocate for the informant has his own
objections for the said document, but as on today at this prima
facie stage, the said document, which appears to be a notarized
document, can be considered. Therefore, taking into
consideration all these aspects, we are of the opinion that prima
facie offence under the Atrocities Act are not made out and
therefore, there was no bar under Section 18 or 18-A of the
Atrocities Act considering the application under Section 438 of
the Code of Criminal Procedure. Conclusion drawn by the learned
Special Judge in that respect is wrong.
17.It can be seen from the police papers that substantial part
of the investigation is over and the charge-sheet is about to be
filed. Under such circumstance the physical custody of the
appellants is not necessary for the purpose of investigation.
Three of the appellants are ladies and that is also one of the
point that is required to be considered. Another aspect to be
noted is that the appellants have attended the police station,
which was made part of the interim protection and it has not
criapl988.22+
been pointed out that they have misused the liberty that has
been granted.
18.One more fact that is required to be considered is that
initially it appears that the informant has approached the City
Chowk Police Station but his FIR was not taken but then for the
same set of facts and without disclosing his approach to the City
Chowk Police Station, he got the FIR lodged with Kranti Chowk
Police Station. This action on the part of the informant is also
considered and it is one of the circumstance which prompts us to
grant anticipatory bail to the appellants.
19.Much has been said about the medical evidence of the
informant about circumcision. The police papers show that there
is evidence of circumcision. However, the expert was unable to
say as to whether the said circumcision was natural or was due
to any surgical intervention. The expert was also unable to say
as to whether it was done by any medical professional or in a
traditional way of Islam by an unauthorized person. He was also
unable to say as to when it would have been done. Therefore, in
view of this kind of evidence, which is not supporting the
contents of the FIR even at this prima facie stage, the benefit of
the same will have to be given to the appellants – original
criapl988.22+
accused persons. The evidence collected i.e. statements of the
witnesses is that of mainly of the parents. Now, much has also
been said about the involvement of MLA at a later stage of
events. No doubt there is a statement of one police person
saying that he and his team had met the informant near the
house of said MLA but his statement does not go further. When
the involvement of the MLA is still under investigation, we would
like to refrain ourselves from making any observations in respect
of the same.
20.Independently, we are concluding that since no offence
under the Atrocities Act is transpiring at this prima facie stage,
there was no hurdle for the learned Special Judge to grant
anticipatory bail to the appellants. Criminal Appeal No.988 of
2022, therefore, deserves to be allowed by setting aside the said
impugned order passed by the learned Special Judge.
21.Now, turning towards the Appeal filed by respondent No.2
i.e. original informant, bearing Criminal Appeal No. 20 of 2023, it
is of academic importance now. Informant was challenging the
part of the impugned order i.e. interim protection granted earlier
to the appellants – applicants was extended for three days.
Reliance was placed on the decision in Dr. Sameer
criapl988.22+
Narayanrao Paltewar vs. the State of Maharashtra, (supra).
Perusal of the said decision would show that it was in respect of
the directions that can be given under Section 438(4) of the
(Maharashtra Amendment Act) Code of Criminal Procedure and it
was held that said section empowers the Sessions Court to
extend the interim protection operating in favour of the accused
for the maximum period of three working days. However, in this
case we agree to the legal principle submitted by learned
Advocate Mr. Joshi for the informant that once the Court comes
to the conclusion that there is bar under Section 18 or 18-A of
the Atrocities Act to the application for anticipatory bail i.e.
under Section 438 of the Code of Criminal Procedure, then
provisions of Section 438(4) of Code of Criminal Procedure will
not be applicable. However, the basic record does not show that
there was an application by the prosecution for directions to the
applicants – accused that the Court should direct them to remain
present on the final date. If there was no such application under
Section 438(4) of the Code of Criminal Procedure by the
prosecution, the directions given by this Court in Dr. Sameer
Narayanrao Paltewar vs. the State of Maharashtra, (supra)
will not be applicable. However, it is now to be seen that the said
interim protection was extended by the Special Court for three
criapl988.22+
days and then thereafter this Court by order dated 23rd
December 2022, granted interim protection to the appellants. It
can be seen that the appellants had approached this Court well
within time i.e. on 23rd December 2022. Therefore, now there is
no question of setting aside the said impugned part of the order
passed by the learned Special Judge. Accordingly, Criminal
Appeal No. 20 of 2023 deserves to be dismissed.
22.For the reasons stated above, we proceed to pass following
order:-
(I) Criminal Appeal No.988 of 2022 stands allowed.
(II)The order passed in Anticipatory Bail Application No.2353
of 2022 dated 20th December 2022 by the learned Special Judge
under the Scheduled Castes and Scheduled Tribes (Prevention of
the Atrocities) Act, Aurangabad stands set aside. The said
application stands allowed.
(III)Interim protection granted to the appellants in Criminal
Appeal No.988 of 2022 by this Court by order dated 23rd
December 2022 stands confirmed. It is clarified that in the event
of arrest of the appellants in Criminal Appeal No.988 of 2022 i.e.
appellant No. 1 - Shaikh Sana Farheen Shahmir, appellant No.2 -
Shahmir Shamshoddin Shaikh, appellant No.3 - Shaikh Khaja
criapl988.22+
Begum Shaikh Shahmir and appellant No.4 - Shaikh Saziya
Sadaf Shaikh Shahmir in connection with Crime No.299 of 2022
registered with Kranti Chowk Police Station, District-Aurangabad
for the offence punishable under Sections 386, 364, 298, 324,
504, 506 read with Section 34 of the Indian Penal Code and
Sections 3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, they be released
on bail on PR Bond of Rs.15,000/- each with one solvent surety
in the like amount each.
(IV)Appellant No.2 - Shahmir Shamshoddin Shaikh shall attend
Kranti Chowk Police Station on every Monday between 11.00
a.m. to 2.00 p.m. till filing of the charge-sheet and co-operate
with the investigation. As Appellant Nos.1, 3 and 4 are ladies, we
are asking appellant No.2 only to attend the police station.
(V) As regards appellant Nos.1, 3 and 4 in Criminal Appeal
No.988 of 2022 are concerned, if their presence is required, the
Investigating Officer may call them in day time only.
(VI)The appellants in Criminal Appeal No.988 of 2022 shall not
tamper with the evidence of the prosecution witnesses in any
manner. They shall not indulge in any criminal activity.
(VII)Criminal Appeal No.20 of 2023 stands dismissed.
criapl988.22+
.After the pronouncement of the order, learned Advocate for
respondent No.2 in Criminal Appeal No.988 of 2022 seeks stay
to the order. It will not be out of place to mention here that
though the learned Special Judge had rejected the application,
he had continued the interim protection for three days and
thereafter within three days this Court had granted interim
protection. Under such circumstance, when the liberty of the
appellants has been considered and it is held that prima facie the
offence under the Atrocities Act has not been made out, under
the said circumstance, there cannot be stay. The repercussion of
the stay, if granted, would be no protection to the appellants
thereby allowing the investigating agency to arrest the
appellants, which cannot be allowed when the Appeal has been
allowed on merits. Hence, the oral prayer stands rejected.
|
Merely because a girl and boy involved in a relationship belong to different religions, the case cannot be given a religious angle, the Bombay High Court recently said while dealing with a case involving "love jihad" claims [Shaikh Sana Farheen Shahmir v. State of Maharashtra].
A Division Bench of Justices Vibha Kankanwadi and Abhay Waghwase observed the same while granting anticipatory bail to a Muslim woman, her parents and her sister, who were booked for allegedly forcing a Hindu man to convert to Islam and marry the woman.
"It appears that now the colour has been tried to be given of love-jihad, but when love is accepted then there is less possibility of the person being trapped just for converting him into the other’s religion...Merely because the boy and girl are from different religion, it cannot have a religions (sic) angle. It can be a case of pure love for each other," the Bench observed in its judgment.
The Court was hearing an application filed by the woman and her family, who were denied anticipatory bail by a special court in Aurangabad.
The man accused the woman and her family of forcing him to convert to Islam. He even alleged that a forceful circumcision (Khatana) was also performed on him. Further, it was contended that the case had a "love jihad" angle, as he was forced to make some monetary transactions in favour of the woman's family. Another claim made was that he was abused in the name of his caste.
The Bench, however, noted that as per the first information report (FIR), the man himself admitted that he had a love affair with the woman.
As per the prosecution case, the man and the woman were in a relationship since March 2018. The man belonged to the Scheduled Caste community, but did not disclose the same to the woman.
Later, the woman began insisting that he convert to Islam and marry her, after which the man disclosed his caste identity to the woman's parents. They did not raise any objection to the same, and also convinced her daughter to accept it.
"That means he has posed, prima facie a good relationship between him and her parents at that point of time. When the initial relationship was good and the caste or the religion was not the barrier for them, then the question of raising the issue of caste or community or religion at a later point of time will not arise," the Court noted.
Subsequently, the relationship turned sour.
The Bench took note of the other allegations raised by the man in his complaint, such as his alleged abduction and forcible circumcision in March 2021, the demand to convert him to Islam, the woman's financial demands, the rape case filed against him etc.
The Court said that despite all such instances, the man did not sever his relations with the accused woman. It was also noted that the FIR was filed only in December 2022.
This, the Bench said, was surprising.
"We can see that there is an inordinate delay in lodging the FIR. When there is inordinate delay, it affects the story and may loose its importance. The fact will have to be observed that when the base for the relationship was the love affair, there was no barrier of caste or religion and therefore, prima facie case under the Atrocities Act cannot be said to be made out," the judgment stated.
Notably, the special court had premised its orders on the fact that charges under the stringent Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act were invoked against the woman and her family.
It noted that a settlement deed was also signed between the two to amicably settle the dispute. Though the man's advocate disputed the settlement, the Bench noted that the same was duly notarized and thus would be considered.
"We are of the opinion that prima facie offence under the Atrocities Act are not made out and therefore, there was no bar under Section 18 or 18-A of the Atrocities Act. Thus, the conclusion drawn by the Special Judge in that respect is wrong."
Moreover, the Court noted that the probe in the case was almost complete, and that the police was likely to file a chargesheet soon.
Thus, the physical custody of the applicants would not be necessary for the purpose of investigation, the Court added.
As far as the claim of the man that he was forcefully circumcised, the Bench noted that an expert was asked to comment on the same by the police.
"However, the expert was unable to say as to whether the circumcision was natural or was due to any surgical intervention. The expert was also unable to say as to whether it was done by any medical professional or in a traditional way of Islam by an unauthorized person. He was also unable to say as to when it would have been done," the judgment said.
In view of the above, the bench granted anticipatory bail to the woman and her family members.
Senior Advocate VD Sapkal along with Advocate Patel Khizer appeared for the applicants.
Additional Public Prosecutor SD Ghayal represented the State.
Advocates Swapnil Joshi and SB Deshpande represented the complainant.
|
Criminal Appeal No. 662 of 1986.
From the Judgment and Order dated 24.10.1986 of the Bombay High Court in W.P. No. 743 of 1986.
Dr. V. Gauri Shanker, Ms. Halida Khatun and Ms. A. Subhashini for the Appellants.
Ram Jethmalani and Herjinder Singh for the Respondent.
The Judgment of the Court was delivered by KHALID, J.
The Union of India has brought this appeal by special leave against the Judgment of a full Bench of the Bombay High Court quashing the notice under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, hereinafter referred to as SAFEMA.
It is necessary to set out the brief facts to appreciate the questions involved in this appeal.
Manoharlal Narang, the respondent in this appeal and Ramlal Narang are brothers.
An order of detention was passed on 19th December 1974, under Section 3(1) of the COFEPOSA Act against Ramlal Narang.
This order was challenged before the Delhi High Court, in Writ Petition No. 10/75 and the High Court quashed the order of detention by its order dated 30th April, 1975.
An appeal was filed against that order before this Court by the Union of India.
Though an applica tion for stay was moved, this Court declined to grant stay but passed an order on the 1st May, 1975 imposing certain condi 457 tions on the movement of Ramlal Narang.
On 25th June, 1975, Emergency was declared.
On 1st July, 1975, a fresh order of detention was passed against Ramlal on the same facts and grounds.
In the meantime the appeal filed by the Union of India against the order of 'the Delhi High Court relating to the earlier order of detention, was dismissed by this Court in 1977, for want of prosecution.
Ramlal was detained under the second order.
A relative of his, filed Writ Petition No. 115 of 1975, in the Delhi High Court, challenging this detention.
That petition was dismissed on 25th November, 1975.
An appeal was filed by Certificate, against that order before this Court as Appeal No. 399 of 1975.
In the mean while, notices under Section 6 & 7 of the SAFEMA were issued against Ramlal.
These notices were challenged by him by filing Writ Petition No. 720 of 1975, in the Delhi High Court.
Subsequently, this Court took up appeal No. 399/75 and disposed it of saying that it would be open to the petitioner to raise all contentions available to him in Writ Petition No. 720 of 1975 notwithstanding what is contained in the Judgment in Writ Petition No. 115/75.
The Delhi High Court heard Writ Petition No. 720 of 1975 and dismissed it.
Against that dismissal order Ramlal filed special leave petition No. 9361/82 before this Court.
In this special leave petition, notice was issued limited only to the ques tion of the competency of the authorities to issue the second detention order on the same facts and grounds.
That petition was thereafter admitted and the criminal appeal arising therefrom is criminal Appeal No. 2790 of 1985, which has been referred to a Constitution Bench and is pending disposal at present.
That learned Counsel for the appellants made a fervent plea before us that since the question of competency of the authorities to issue the second detention order is pending consideration before a Constitution Bench of this Court, this appeal also should be directed to be posted along with that appeal.
The respondent 's counsel met this plea stating that for the purpose of this appeal, this question is cov ered by a three Judge Bench decision of this Court in Ibra him Bachu Bafan vs State of Gujarat and Ors., and that it was not necessary to direct this appeal to be tagged with Civil Appeal No. 2790/85.
After hearing the counsel for some time, we indicated to the learned counsel for the respondent, that we were inclined to direct this appeal to be posted along with the appeal pending before the Constitution Bench but were still willing to hear the matter if he could sustain the Judgment under appeal, on grounds other than the one referred to the Constitution Bench.
He was willing to do so and he argued the case 458 on the other grounds raised by him.
We will now proceed to consider those other grounds and see whether the Judgment could be sustained or whether it has to be reversed.
The facts and the relevant dates have been stated above.
A few more facts are necessary.
An order of detention under COFEPOSA was issued against the present respondent on 31st January, 1975.
At that time he was in England.
He was brought to India on some express understanding given to the Government of the United Kingdom.
His order of detention was challenged before the Bombay High Court being Writ Petition No. 2752/75, and the High Court quashed that order of deten tion as per order dated 8th July, 1980.
The appeal filed against that order before this Court was dismissed on 4th November, 1980.
The notice under challenge in this appeal was issued to the respondent under Section 6 of the SAFEMA with the aid of Section 2 of the Act.
Section 2 reads as follows: "2.
Application. (1) The provisions of this Act shall apply only to the persons specified in sub section (2).
" Sub section (2), relevant for our purpose, reads as follows: "(2) The persons referred to in sub section (1) are the following, namely: (a) . . . . . . . . (b). . . . . . . . (c) every person who is a relative of a person referred to in clause (a) or clause (b) (d) . . . . . . . . . (e) . . . . . . . . .
Explanation 2.
states "For the purpose of clause (c) rela tive" in relation to a person, means . . . . . . . . . . . (ii) brother or sister of the person; . . . . . . . . . . . 459 The learned counsel for the respondent contended that the respondent could challenge the order of detention against his brother, to get the notice issued against him under SAFEMA quashed on all the grounds available to him, though they were raised by his brother or not.
He was not seeking to get the order of detention against his brother quashed for his brother 's benefit nor was he doing it on his behalf, but he was invoking the jurisdiction of the Court only for his own benefit.
While doing so he is not lettered by what happened to his brother 's petition or to the grounds raised by him.
Nothing held against his brother would, according to the learned counsel, operate as res judicata against the respondent.
The provisions of SAFEMA were being pressed into service because a relative answering the de scription given in Explanation 2 to Sub section (2) of Section 2 of the Act was available.
He cannot be prevented from urging all the grounds available to him to get out of the mischief of the notice issued to him under Section 6 of the SAFEMA.
We find that this submission is well founded.
We hold that in such cases, the person against whom action is taken by invoking the Explanation to Sub section (2) re ferred to above, is at liberty to raise all grounds avail able to him though such grounds were raised and found against in a proceedings initiated by the relative.
The ground that found favour with the Bombay High Court in this case is that the detaining authority did not apply its mind to the order passed by this Court on 1st May, 1975, in the special leave petition against the decision of the Delhi High Court which quashed the detention of Ramlal.
The appellants before us sought a stay of the order passed by the Delhi High Court.
This Court declined the request but passed the following order: "We grant Special Leave on usual terms.
The petitioner appellant should have gone to the High Court first for a certificate.
In view of the arguments heard, we give special leave in this matter as a very special case, and this is not to be treated as precedent in future.
We are unable to grant any stay.
We impose a condition on Ram Lal Narang, Detenu pending the disposal of the appeal in this Court that he will report to the police station in whose jurisdiction he reside either at Bombay or at Delhi, once every day at 10 A.M. or at 5 P.M. and whenever he will leave for Delhi, he will inform the police as to when he is leaving and when he will arrive at Delhi, similarly when he will leave for Bombay, he will inform the police as to when he is leaving 460 for Bombay and when he will arrive at Bombay.
Certified copy of the judgment impugned shall be filed as soon as possible.
" It is not disputed that the detenu Ramlal was reporting to the officer in charge of the Bandra Police station, Bombay regularly, in due compliance with the above order passed by the Supreme Court.
We have already adverted to the fact that proceedings against the respondent taken under SAFEMA were abandoned after the order of this Court on 4th November, 1980.
It is nearly 3 years later, on 29th October, 1983, that the pro ceedings, from which this appeal arises, were initiated under Section 6 of SAFEMA on the basis of the detention order dated 1st July, 1975, issued against Ramlal.
It is necessary to bear in mind that on 1st July, 1975, when the order of detention against Ramlal was passed, the authori ties had before them the order of this Court, extracted above, dated 1st May, 1975.
By this order Ramlal was permit ted to be at large on condition that he will report to the Police Station as mentioned therein.
It cannot be disputed that this order of the Supreme Court is a relevant material for the detaining authority to consider when the detention order was passed.
From the records it is not seen that the Union of India had specifically put forward a case at any time that this order was not a relevant material or that this order was considered by the detaining authority.
The first respondent had specifically raised this contention in paragraph 'Q ' of the grounds of the Writ Petition, by an amendment which was allowed by the order of the Division Bench of the Bombay High Court on 29th April, 1986.
The specific contention raised in ground 'Q ' was "that vital and material facts which would have weighed the mind of the detaining authority one way or the other, have been sup pressed from him, thus vitiating the order of detention dated 1st July, 1975, and consequent declaration made under Section 12(a) of the COFEPOSA".
After that, reference was made to the order of this Court extracted above, accompanied by an assertion that Ramlal was complying meticulously with the orders of the Supreme Court.
This specific assertion is met by the appellants in paragraph 53 of the Counter Affida vit filed by Under secretary.
Ministry of Finance ' which reads as follows: "With reference to para 24 Q, additional ground it is not admitted that any detaining authority as alleged or other wise.
461 In paragraph 54, this ground is met more elaborately with the following observations: " . .
At any rate it is submitted that the contents pertain to the proceedings in the High Court and the Supreme Court and the detention law does not contemplate that the detaining authority is required to take into account the different court proceedings wheth er independent proceedings, under the law not initiated, conducted, managed or looked after by the detaining authority It is well known that the different Ministries of the Govern ment carry out different types of work in different ways and the detaining is not re quired under the law to take notice of work of the Ministries or Court proceedings.
The Court proceedings and adjudication proceedings are initiated and conducted by different authori ties which are not required under the law to submit their reports or communicate their actions to the detaining authority.
The de taining authority, in turn, is not required under the law to carry out the process of collection of any material about any Court proceeding or proceedings before other author ities for the purpose of issuance of a deten tion order.
The contents of the paragraph refers to such proceedings which are not required to be collected by the detaining authority from such authorities or courts. ]" We are not very happy with the manner in which this important contention has been met in the Counter Affidavit.
An order of this Court is not an inconsequential matter.
It cannot be assumed for a moment that the detaining authority or the sponsoring authority did not know, at the time the detention order was passed, that this Court had refused stay of the Judgment of the Delhi High Court and that Ramlal was allowed freedom of movement subject to certain conditions.
It is to be regretted that the portion extracted above from the Counter Affidavit (shown in bracket) betrays an atti tude, to put it mildly, that lacks grace.
Be it understood that the braketted portion was made to meet a case that there existed an order of this Court which was a relevant and vital material.
We can use stronger language to express our displeasure at the manner in which reference was made indirectly to this Court 's order but we desist from doing so.
If the sponsoring authority and the detaining authority are to adopt such cavalier attitude towards orders of courts and of this Court in particular, their orders will meet with the same fate as the one under review.
462 If the detaining authority had considered the order of this Court, one cannot state with definiteness which way his subjective satisfaction would have reacted.
This order could have persuaded the detaining authority to desist from pass ing the order of detention since this Court had allowed freedom of movement.
Detention is only a preventive Act.
This Court did not find it necessary to restrict the liberty of Ramlal when the order on the stay application was passed.
It may also be that the detaining authority after consider ing the order of this Court carefully could still feel, that an order of detention is necessary with reference to other materials which outweigh the effect of this Court 's order.
In all these cases, non application of mind on a vital and relevant material need not necessarily lead to the conclu sion that application of mind on such materials would, always be in favour of the detenu.
Application of mind in such cases is insisted upon to enable the detaining authori ty to consider one way or the other, as to what effect a relevant material could have, on the authority that decides the detention.
In our view the absence of consideration of this important document amounts to non application of mind on the part of the detaining authority rendering the deten tion order invalid.
In Ashadevi vs K. Shivraj, ; this Court had occasion to consider the plea whether an order of deten tion would be vitiated if relevant or vital facts, essential to the formation of subjective satisfaction, were kept away from the consideration of the detaining authority.
This is how this Court dealt with this aspect: "It is well settled that the subjective satis faction requisite on the part of the detaining authority, the formation of which is a condi tion precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.
in Sk.
Nizamuddin vs State of West Bengal, the order of detention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magis trate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the mainte nance of supplies and services essential to the community and this subjective satisfac tion, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire 463 alleged to have been committed by the peti tioner on April 14, 1973.
In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub Divisional Magistrate, Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged.
It appeared clear on record that the history sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case.
" Then this Court, referred to a decision reported in and extracted the following in support of their view: "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate.
That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention.
It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be de tained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preven tive detention should be resorted to.
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate.
" The material not placed before the detaining authority is mentioned in paragraph 7 of the Judgment which reads as follows: "7.
In the instant case admittedly three facts were not communicated to or placed before the detaining authority before it passed the impugned order against the detenu, namely, (i) that during interrogation of the detenu, in spite of request, neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to 464 the Advocate in that behalf the detenu was not produced before the Magistrate on December 14, 1977, and (iii) that the confessional state ments were squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody; the first two had a beating on the question whether the confessional statements had been extorted under duress from detenu or not, while the third obviously was in relation to the confessional statements which formed the main foundation of the impugned order and as such were vital facts having a bearing on the main issue before the detaining authority.
" Ultimately the order of detention was quashed because the retracted confessional statement of the detenu was not placed before the detaining authority who passed the deten tion order on the detenu 's confessional statements.
This Court observed: "it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention and also to see whether the confessional statements recorded were voluntary statements or were statements obtained from the detenu under duress and also whether the retracted confession was in the nature of an after thought." On the facts of this case, by way of reiteration, we wish to state that the facts that Ramlal was detained, that he had undergone substantive period of detention did not weigh with this Court when the above order was passed, which clearly indicated that this Court felt that there was no need to detain him further pending appeal.
In Mohd. Shakeel Wahid Ahmed vs State of Maharashtra and Ors., a Constitution Bench of this Court had to deal with a somewhat similar situation.
There, one of the grounds of detention on which the appellant before this Court was detained was the same as the one on which one Shamsi was detained.
The Advisory Board had reported that there was no sufficient cause for Shamsi 's detention.
A case was pleaded before this Court that the report of the Adviso ry Board to the above effect ought to have been placed before the detaining authority which passed the order of detention against the petitioner before this court in that case.
It was contended that if this material had been placed before the detaining authority it may not have passed an order of detention against the petitioner in that case.
This court accepted this plea and observed as follows: "This submission is well founded and must be accepted.
It 465 is clear that Shamsi was detained for engaging in a smuggling activity arising out of the same incident and transaction which forms the subject matter of ground 1 in the instant case.
The opinion of the Advisory Board that there was no sufficient cause for Shamsi 's detention may not have been binding on the detaining authority which ordered the deten tion of the petitioner but, it cannot be gainsaid that the fact that the Advisory Board had recorded such an opinion on identical facts involving a common ground was at least relevant circumstance which ought to have been placed before the detaining authority in this case.
Since three out of the four grounds on which the petitioner was detained have been held to be bad by the High Court, we have to proceed on the basis that the petitioner was detained and could validly be detained on the remaining ground only.
That ground is similar to one of the grounds on which Shamsi was detained, the transaction being one and the same, as also the incident on which the two orders of detention are based.
That is why the opinion of the Advisory Board in Shamsi 's case becomes relevant in the petitioner 's case.
The failure of the State Government to place before the detaining authority in the instant case, the opinion which the Advisory Board had recorded in favour of a detenu who was de tained partly on a ground relating to the same incident deprived the detaining authority of an opportunity to apply its mind to a piece of evidence which was relevant, if not binding.
In other words, the detaining authority did not, because it could not, apply its mind to a circumstance which, reasonably, could have affected its decision whether or not to pass an order of detention against the petitioner.
" This Court observed further the scope of the consideration of the relevant materials in the following words: ". .
But the question for considera tion is not whether the detaining authority would have been justified in passing the order of detention against the petitioner, even after being apprised of the opinion of the Advisory Board in Shamsi 's case.
The question is whether the order of detention was passed in this case after applying the mind to the relevant facts which bear upon the detention of the petitioner.
It seems to us plain that the opinion of the Advisory Board in 466 Shamsi 's case was, at any rate, an important consideration which would and ought to have been taken into account by the detaining authority in the instant case.
That opportuni ty was denied to it.
" The Constitution Bench has in unambiguous terms out lined the scope of the doctrine of the application of mind and the purpose being it, in the above observation.
In a recent case, Sita Ram Somani vs State of Rajasthan and Ors., to which one of us was a party, it was held that non application of mind about the bail appli cations of the detenu in pending criminal case and his applications to the Collector of Customs, informing him that he had retracted his earlier confessional statements not having been placed before the detaining authority, the order of detention was held to be vitiated.
In another case, Criminal Writ Petition No. 397 of 1986, in a Judgment given by one of us along with Pathak J. (as he then was), the detention order which was based on three separate incidents, was quashed on the ground that the detaining authority did not apply its mind while passing the detention order, that the detenu had moved an application for bail, in the three pending cases and that he was enlarged on bail on 13 1 1986, 14 1 1986 and 15 1 1986.
Since the order of detention did not mention that the detenu in these cases was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases, this Court had to observe that there was a total absence of application of mind on the part of the detaining authority while passing the detention order and quashed the order of detention.
Appellants ' counsel in this case found it difficult to get over this plea made by the respondent, supported by weighty authorities.
He could not put forward any persuasive submissions to compel us to disagree with the consistent view taken by this Court in such matters.
He acted with propriety in not adopting the argument put forward in the Counter Affidavit that it was not the function of the authorities to go after all proceedings that take place in Courts of Law, relating to a detenu.
In view of the above conclusions we do not think it necessary to consider the question whether the authorities acted rightly in not considering the representation made by the respondent.
It cannot be disputed that provisions of SAFEMA cannot be invoked in cases where 467 there is no valid order of detention.
We agree with the High Court that the order of detention is bad on the ground discussed above.
Consequently we hold that the High Court was justified in quashing the notice issued under Section 6 and the proceeding initiated under Section 7 of the SAFEMA.
We accordingly dismiss the appeal.
S.R. Appeal dis missed.
|
Respondent and Ramlal Narang are brothers.
An order of detention passed on 19.12.1974 under section 3(1) of the COFEPOSA against Ramlal Narang was successfully challenged by W.P. 10/75 before the Delhi High Court.
An appeal was filed against that order before the Supreme Court by the Union of India.
Refusing a stay application, the Supreme Court passed an order imposing certain conditions on the movement of Ramlal Narang.
On 25.6.1975 Emergency was de clared.
On 1.7.1975 a fresh order of detention was passed against Ramlal on the same facts and grounds.
The earlier appeal filed by Union of India against W.P. 10/75 was dis missed in 1977.
Ramlal was detained under the second order of detention.
A writ petition No. 115/75 flied by his rela tive before the Delhi High Court challenging the second detention was dismissed on 25.11.1975.
An appeal was filed by certificate against that order before the Supreme Court as Crl.
Appeal No. 399/75.
In the meanwhile, notices under sections 6 and 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 were issued against Ramlal.
These notices were challenged by him by filing W.P. No. 720/75 in the Delhi High Court.
Subsequently Crl.
Appeal No. 399/75 was disposed of observing that it would be open to raise all contentions available to him in W.P. 720/75 notwithstanding what is contained in W.P. 115/75.
The Delhi High Court having dismissed W.P. NO.
720/75, Crl.
Appeal No. 2790/85 was preferred to the Supreme 455 Court and is now pending before the Constitution Bench on the question of competency of the authorities to issue second detention order on the name grounds and facts.
While Respondents Manoharlal was in England an order of detention under COFEPOSA was issued against him on 31.1.1975.
He was brought to India on some express under standing given to the Government of the United Kingdom.
His order of detention was quashed by the Bombay High Court, wile allowing his writ petition No. 2752/75 on 8.7.1980.
The Union appeal against the same was dismissed on 4.11.1980 by the Supreme Court.
A further notice under section 6 of the SAFEMA read with section 2 was issued to the Respondent on 29.10.83 on the basis of the detention order dated 1.7.1975 issued against Ramlal.
A full Bench of the Bombay High Court quashed the said notice resulting in the present Crl.
Appeal No. 662/86 by Union of India.
The appellants plea to have the case tagged on to Crl.
Appeal No. 2790/85 pending before the Constitution Bench was opposed by respondent since he could succeed on merits.
Dismissing the appeal, the Court, HELD: 1.
In this case, the provisions of Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 were being pressed into service because he is a rela tive answering the description given in Explanation 2 to sub section (2) of section 2 was available.
Therefore, in such cases, the person against whom action is taken by invoking the Explanation to Sub section 2 referred to above, is at liberty to raise all grounds available to him though such grounds were raised and found against in a proceedings initiated by the relative.
[459C D] 2.
An order of the Supreme Court is not an inconsequen tial order.
If the detaining authority has considered the order of Supreme Court, one cannot state with definiteness which way is subjective satisfaction would have reacted.
This order could have persuaded the detaining authority to desist from passing the order of detention since Supreme Court had allowed freedom of movement.
Detention is only a preventive Act.
The Supreme Court did not find it necessary to restrict the liberty of Ramlal when the order on the stay application was passed.
It may also be that the detaining authority after considering the order of the Supreme Court carefully could still feel, that an order of detention is necessary with reference to other materials which outweigh the effect of Supreme Court 's order.
In all these cases, non application of mind 456 on a vital and relevant material need not necessarily lead to the conclusion that application of mind on such materials would, always be in favour of the detenu.
Application of mind in such cases is insisted upon to enable the detaining authority to consider one way or the other, as to what effect a relevant material could have, on the authority that decides the detention.
The absence of consideration of this important document amounts to non application of mind on the part of the detaining authority rendering the detention order invalid.
[462A D] Ibrahim Bachu Bafen vs State of Gujarat & Ors., ; Ashadevi vs K. Shivraj, ; ; Mohd. Shakeel Wahid Ahmed vs State of Maharashtra & Ors.
,[1983] 2 SCC 392 and Sita Ram Somani vs State of Rajasthan & Ors., , referred to.
|
Civil Appeal No. 1773 of 1971.
(From the Judgment and order dated 20 2 1970 of the Allahabad High Court in Civil Misc.
Writ Petition No. 2943/69) S.C. Manchanda and O.P. Rana, for the Appellants.
V.S. Desai, P.B. Agarwala and B.R. Agarwala, for the Respondents.
838 The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate which is directed against the judgment and order dated February 20, 1970, passed by the High Court of Judicature at Allahabad in writ petition No. 2943 of 1969 raises two interesting ques tions viz. ( 1 ) whether carbon paper is paper falling within the purview of the word 'paper ' as used in serial No. 2 of Notification Ng.
ST 3124/X 1012(4) 1964 dated July 1, 1966, issued by the Governor of Uttar Pradesh in exercise of the power vested in him under section 3 A of the U.P. Sales 'Fax Act, 1948 (U.P. Act No. XV of 1948) so as to be liable to sales tax at the point and at the rate specified in the Schedule to the Notification and (2) whether ribbon is an accessory or a part of the typewriter.
It appears that the respondent which is a company incor porated under the Indian Companies Act dealing in carbon paper, typewriter, ribbon, stepler machines and stepler pins, despatches the said goods from its head office at Bombay to its branch office at Kanpur wherefrom sales there of are effected in the State of Uttar Pradesh.
During the course of the assessment proceedings for the assessment year 1956 57, the respondent claimed that carbon paper not being paper falling within the ambit of Entry No. 2 of the Schedule to the aforesaid Notification but a specialised article used for copying purposes, its turnover had to be assessed at the rate of 2 per cent prescribed for unclassi fied goods and not at the rate of 6 paise per rupee i.e. 6% prescribed in the aforesaid Notification.
The respondent further claimed that ribbon being an accessory anti not a part of the typewriter, its turnover could not be subjected to sales tax at the rate of 10% prescribed inter alia for typewriters and parts thereof by Notification No. ST 1738/X I012 1963 dated June 1, 1963.
The Sales Tax Officer, (Section IV), Kanpur, did not accede to the conten tions of the respondent and holding that carbon paper re mained paper even after going through certain chemical processes and that ribbon was a part of the typewriter, taxed the turnover of carbon paper for the period commencing from July 1, 1966, to the end of March, 1967 at 6% and that of ribbon at 10%.
He, however, taxed the turnover of carbon paper for the period April 1, 1966 to June 30, 1966 at 2%.
The validity and correctness of this order in so far as it related to the levy of tax on carbon paper at 6% and ribbon at 10% was challenged by the respondent by means of the aforesaid writ petition before the High Court at Allahabad which by its aforesaid judgment and order allowed the same and quashed the levy.
Hence this appeal.
Appearing in support of the appeal, Mr. Manchanda has assailed the reasoning and approach of the High Court and has vehemently urged that carbon paper does not lose its character as paper even after being subjected to chemical processes and that ribbon is not an accessory but an essen tial part of the typewriter.
We have carefully considered the submission made by Mr. Manchanda but find ourselves unable to accept the same.
839 It is well settled that a word which is not defined in an enactment has to be understood in its popular and commer cial sense with reference to the context in which it occurs.
In Attorney General vs Winstanley (1), Lord Tenterden started as follows: "Now, when we look at the words of an Act of Parliament, which are not applied to any particular science or art, we are to construe them as they are understood in common language.
" In Grenfell vs Commissioners of Inland Revenue (2) Pollock, J, pointed out: "As to tile construction of the Stamp Act, I think it was very properly urged that the statute is not to be construed according to the strict or technical meaning of the language contained in it, but that it is to be construed in its popular sense, meaning, of course, by the words 'popular sense ' that sense which people conversant with the sub ject matter with which the statute is dealing would attribute to it." The word 'paper ' admittedly not having been defined either in the U.P. Sales Tax Act, 1948 or the Rules made thereunder, it has tO be understood according to the afore said well established canon of construction in the sense in which persons dealing in and using the article understand it.
It is, therefore, necessary to know what is paper as commonly or generally understood.
The said word which is derived from the name of reedy plant papyrus and grows abundantly along the Nile river in Egypt is explained in 'The Shorter Oxford English Dictionary (Volume 2) (Third Edition) as "a substance composed of fibres interlaced into a compact web, made from linen and cotton rags, straw, wood, certain grasses, etc., which are macrated into a pulp, dried and pressed; it is used for writing.
printing, or drawing on, for wrapping things in, for covering the interior of wails, etc.
" In 'Encyclopaedia Britannica ', (Volume 13), (15th Edition), 'paper ' has been defined as the basic material used for written communication and the dissemination of information.
" In the Unabridged Edition of "The Randon House Dicition ary of the English Language", the word 'paper ' has been defined as "a substance made from rags, straw wood ' or other fibrous material, usually in thin sheets, used to bear writing or printing or for wrapping things, decorating walls etc.
" From the above definitions, it is clear that in popular parlance, the word 'paper ' is understood as meaning a sub stance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or cover ing the walls.
Now carbon paper which is manu (1) [1831] 2 Dow & Clark 302=(1901) ; (2) at 248.
840 factured by coating the tissue paper with a thermo setting ink (made to a liquid consistency) based mainly on wax, non drying oils, pigments and dyes by means of a suitable coat ing roller and equalising rod and then passing it through chilled rolls cannot be used for the aforesaid purposes but is used.
according to 'The Randon House Dictionary of the English Language ' between two sheets of plain paper in order to reproduce on the lower sheet that which is written or typed on the upper sheet i.e. making replicas or carbon copies cannot properly be described as paper.
It will be well at this stage to refer to a few deci sions which confirm our view.
In Kilburn & Co. Ltd. vs Commissioner of Sales Tax U.P., Lucknow(I) a Bench of Allahabad High Court while examining the very same entry in the Notification with which we are concerned in the instant case and holding that "Ammonia paper and ferro paper used for obtaining prints and sketches of site plans are not paper us understood generally and, therefore, will not come within the expression 'paper other than hand made paper ' as used in Notification No. ST 3124/X 1012(4) dated 1st July, 1966, issued under section 3 A of the U.P. Sales Tax Act, 1948" observed : "The word 'paper ' has not been defined in the Act or the Rules, and, as such, it has to be given the meaning which it has in 'ordinary parlance.
Paper, as understood in common parlance, is the paper which is used for printing.
writing and packing purposes.
" In Sree Rama Trading Company vs State of Kerala(2) the High Court of Kerala after a good deal of research held that cellophane is not paper coming within entry 42 in the First Schedule to the Kerala General Sales Tax Act, 1963, as it stood at the time relevant to the year 1966 67.
In State of Orissa vs Gestetner Duplicators (P) Ltd.(3) the HIgh Court of Orissa held that stencil paper was not paper within the meaning of serial No. 7 A of the Schedule to the Notification issued by the State Government under the first proviso to section 5(1) 'of the Orissa Sales Tax Act, 1947 and that sale of stencil paper was, therefore, not taxable at the rate of 7 per cent but is exigible to tax at the rate of 5 per cent.
In Commissioner of Sates Tax, U.P, vs
S.N. Brothers(1) this Court while upholding the decision of the Allahabad High Court which held that 'food colours ' and 'syrup es sences ' arc .edible goods while 'dyes and colours and compo sitions thereof and 'scents and perfume ' did not seem prima facie to connote that they are edible goods observed: (1) 31 S.T.C. 625.
(2) 28 S.T.C. 469.
(3) 33 S.T.C. 333.
(4) 31 S.T.C. 302. 841 "The words 'dyes and.
colours ' used in entry No. 10 and the words: scents and perfumes ' used in entry No. 37 have to be construed in their own context and in the sense, as ordinarily understood and attribut ed to these words by people usually conver sant with and dealing in such goods.
Simi larly, the words "food colours" and "syrup essences", which are descriptive of the class of goods the sales of which are to be taxed under the Act, have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them.
" Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word 'paper ' forms part of the denomination of a specialised article is not decisive of the question whether the article is paper as generally understood. 'the word 'paper ' in the common parlance or in the comercial sense means paper which is used for printing, writing or packing pur poses.
We are, therefore, clear of opinion that Carbon paper is not paper as envisaged by entry 2 of the aforesaid Notification.
Regarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former.
Just as aviation petrol is not a part of the aero plane nor diesel is a part of a bus in the same way, ribbon is not a part of the type writer though it may not be possible to type out any matter without it.
The very same question with which we are here confronted came up for decision before the High Court of Mysore in State of Mysore vs Kores (India)Ltd.
(1) where it was held: "Whether a typewriter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commer cial sense.
Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essen tial part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957.
" For the foregoing reasons, we do not find any force in this appeal which is dismissed but in the circumstances of the case without any order as to costs.
M.R. Appeal dismissed (1) 26 S.T.C. 87.
|
The Governor of U.P. issued a Notification under Section 3 A of the U.P. Sales Tax Act, 1948, and the Sales Tax Officer (Section IV) Kanpur, ordered the respondent company to pay tax on the turnover of ' carbon paper at 6%, and that of ribbon at 10%, as per entry 2 of the Notification.
The respondent challenged the order in a writ petition before the High Court.
contending that carbon paper was not 'paper ' with the meaning of entry 2 and its turnover was therefore to be assessed at the rate of 2% prescribed for unclassified goods, and that 'ribbon ' being an accessory and not a part of the typewriter, could only be taxed at the rate of 6% and not 10%.
The High Court allowed the writ and quashed the levy.
The appellant contended that carbon paper does not lose its character as paper in spite of being subjected to chemi cal processes, and that ribbon is not an accessory but an essential part of the typewriter.
Dismissing the appeal the Court, HELD :(1) A word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs.
It has to be understood according to the well established canon of construction in the sense in which persons dealing in and using the article understand it.
[839 A B] Attorney General vs Winstanley (1831) 2 Dow & Clark 302:(1901) ; , and Grenfell vs Commissioner of Inland Revenue (1876)1 exhibit D. 242 at p. 248 applied.
(2) The word 'paper ' is understood as meaning a sub stance which is used for bearing writing or printing, or for packing.
or for drawing on.
or for decorating, or covering the wails.
Carbon paper cannot be used for these purposes but is used for making replicas or carbon copies, and cannot properly be described as paper.
[839 G, 840 A B] K. Kilburn & Co. Ltd. vs Commissioner of Sales Tax, U.P. Lucknow (31 S.T.C. 625), Sree Rama Trading Company vs State of Kerala (28 S.T.C. 469).
state of Orissa vs Gestetner Duplicators (P) Ltd. (33 S.T.C. 333 ) Commissioner of Sales Tax, U.P.v.
S.N. Brothers (31 S.T.C. 302) applied.
(3) The above mentioned rule of construction equally applies to ribbon.
an accessory and not a part of the typewriter, though it may not be possible type out any matter without it.
[841 D E] State of Mysore vs Kores (India) Ltd. (26 S.T.C. 87) ap proved.
|
minal Appeal No. 50 of 1965.
Appeal by special leave from the judgment and order dated February 15, 1965 of the Bombay High Court in Criminal Revi sion Application No. 917 of 1964.
A. section R. Chari, O. P. Malhotra, V. N. Ganpule, P. C. Bhartari, and O. C. Mathur, for the appellants.
M. section K. Sastri and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
In this appeal by special leave against the judg ment of the High Court of Bombay in criminal revision application No. 917/64, the question that arises for decision is whether on the facts found by the courts below, the appellants were properly held to be guilty of all or any of the offences for which they have been convicted.
In the trial court there were as many as nine accused.
All the accused excepting accused Nos. 1 and 2 who are appellants 1 and 2 respectively in this Court, were, acquitted.
The prosecution case is as follows : The acquitted third ac cused was the owner of the jeep bearing registration No. BYF 5448.
Accused ,No. 2 is his father.
They are the residents of Malshiras.
On October 27, 1962, the appellants along with PW Rambhau Bhombe and one other, went in the jeep in question first to Phaltan which is about 33 miles away from Malshiras, from there to Rajale about seven miles away from Phaltan.
From Rajale they returned to Phaltan and from there to Malegaon.
They stayed for the night at Malegaon.
Next day they returned to Phaltan and finally to Malshiras.
During all this time, appellant No. 1 was driving the jeep.
On the way from Phaltan to Malshiras, about a mile and a half from Phaltan, the jeep struck one Bapu Babaji Bhiwarkar, as a result of which he sustained serious injuries.
The appellants put the injured person in the jeep and brought back the jeep to Phaltan where they approached PW Dr. Karwa for medical aid, but Dr. Karwa refused to treat the injured as it was a medico legal case.
He asked them to go to Government Dispensary.
The appellants instead of going to the Government Dispensary, drove straight to Malshiras.
On the way the injured died.
At Malshiras the appellants cremated his dead body.
At the time of the incident, the first appellant had 517 only a learner 's licence and no person having a valid licence for driving was by his side.
The courts below have accepted the above facts and on the basis of those facts, the trial court convicted the appellant No. 1 under section 304A IPC, section 3 read with section 112 of the Motor Vehicles Act and under section 89 of the same Act.
It convicted the second appellant under section 201 IPC, section 5 as well as under section 89 of the Motor Vehicles Act.
These convictions were affirmed by the learned Sessions Judge of Satara in appeal and by the High Court in revision.
The conviction of the first appellant under the provisions of the Motor Vehicles Act was not challenged before us, but we fail to see how the second appellant could have been convicted either under section 5 or under section 89 of the Motor Vehicles Act.
In convicting him under those provisions, the courts below appear to have overlooked the fact that he was not the owner of the jeep.
Nor was there any proof that he was in charge of the jeep.
Hence, his convictions under those provisions cannot be sustained.
The conviction of the appellant No. 2 under section 201 IPC de pends on the sustainability of the conviction of appellant No. 1 under section 304A IPC.
If appellant No. 1 was rightly convicted under that provision, the conviction of appellant No. 2 under section 201 IPC on the facts found cannot be challenged.
But on the other hand, if the conviction of appellant No. 1 under section 304A IPC cannot be sustained, then, the second appellant 's conviction under section 201 IPC will have to be set aside, because to establish the charge under section 201, the prosecution must first prove that an offence had been committed not merely a suspicion that it might have been committed and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear.
The proof of the commission of an offence is an essential requisite for bringing home the offence under section 201 IPC see the decision of this Court in Palvinder Kaur vs State of Punjab (1).
Therefore the principal question for decision is whether on the facts found, appellant No. 1 was rightly convicted under section 304A IPC.
On the material on record it is not possible to find out under what circumstances the accident took place.
The High Court in its judgment specifically says that "There are no witnesses whose evidence can establish rash and negligent driving on the part of accused No. 1.
" We may go further and say that there is absolutely no evidence to show that the accused was responsible for the accident.
The prosecution has not produced any evidence to show as to how the accident took place.
The High Court observed: (1) 518 'It is however, a fact conclusively established and not disputed before me that the accused No. 1 had only a learner 's licence at the material time.
It is not even suggested before me that accused No. 2 held a driving licence so that he could act as a trainer for accused No. 1.
In fact, there is no suggestion by the defence that there was a trainer by the side of accused No. 1.
Thus on the facts established, it is quite clear that at the material time, the jeep was driven by accused No. 1, who not only did not have a valid driving licence, but had only a learner 's licence.
The question for consi deration, therefore, is whether driving a jeep on a public road by a person, who does not know driving and is consequently unable to control the vehicle, is a rash and negligent act as contemplated by Section 304A IPC." The court answered that question in these words "The very fact that the person concerned holds only a learner 's licence, in my opinion, necessarily implies that he does not know driving and must be assumed to be incapable of controlling the vehicle.
If a person who does not know driving and is a consequently not able to control a car or a vehicle, chooses to drive a car or a vehicle on a public road without complying with the requirements of Rule 16 of Bombay Motor Vehicles Rules, he obviously does an act, which can be said to be rash and negligent, as contemplated by Sec.
304A IPC.
It is negligent because he does not take the necessary care of having a trainer by his side.
It is rash because it utterly disregards the public safety.
Prima facie it appears to me that driving a vehicle like a jeep or motor car on a public road without being qualified to drive, particularly in the absence of any evidence to show that the person concerned had the necessary experience and good control over the vehicle would amount to a rash and negligent act, as contemplated by Sec.
304A IPC.
" Assuming that the High Court was right in its conclusion that appellant No. 1 had not acquired sufficient proficiency in driving therefore he was guilty of a rash or negligent act in driving the jeep that by itself is not sufficient to convict him under section 304A IPC.
The, prosecution must go further and prove that it was that rash or negligent act of his that caused the death of the deceased.
Section 304A says "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable 519 homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act.
In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death.
There must be direct nexus between the death of a person and the rash or negligent act of the accused.
As mentioned earlier there is no evidence to show that it was rash or the negligent act of the accused that caused the death of the deceased.
Before referring to the decided cases, we would like to revert to prosecution evidence for finding out whether the High Court was right in its inference that the accused was novice in the matter of driving.
From the prosecution evidence itself it is clear that he drove the jeep to various places on October 27, 1962.
Then there was the evidence of PW Shankar Burmule, showing that he had seen accused No. 1 driving for about six months to a year.
The learned Judge of the High Court discarded his evidence with these observations : "In the present case, Mr. Jahagirdar relies on the evidence of Shankar Burmule, which is at Exh. 39, to contend that accused No. 1 had considerable driving experience.
Unfortunately the English notes of evi dence by the learned trial Magistrate do not indicate that the witness stated that accused No. 1 had driving experience, but the evidence recorded in Marathi undoubtedly indicates that the witness claims to have seen accused No. 1 driving for about six months to a year.
The witness seems to be a relation of accused No. 2, though not a near relation, and his word cannot be taken at par.
Moreover the admitted fact that at the material time accused No. 1 held only a learner 's licence itself indicates that no importance can be attached to the abovesaid statement of Shankar Burmule.
It is also urged that accused No. 1 did take the jeep from Malshiras to Phaltan and to some other places and that also would bear out the statement of Shankar Burmule.
All that I can say is that it was a sheer stroke of good fortune that accused No. 1 did not meet with any accident during his trip from Malshiras to Phaltan and some other places." With respect to the learned Judge we think this was not the proper way of appreciating evidence.
Conclusions must be based on the evidence on record.
PW Shankar Burmule has given material 520 evidence against the accused.
His evidence establishes an important link in the prosecution case.
He could not have been compelled to give that evidence if he was not a truthful witness.
The learned public prosecutor did not make any attempt in his reexamination to show that any portion of his evidence was untrue.
There is no presumption in law that a person who possesses only a learner 's licence or possesses no licence at all does not know driving.
For various reasons, not excluding sheer indifference, he might not have taken a regular licence.
The prosecution evidence that appellant No. 1 had driven the jeep to various places on the day previous to the occurrence is a proof of the fact that he knew driving.
There was no basis for the conclusion that it, was a sheer stroke of good fortune that he did not meet with any accident on that day.
Now let us turn to the decided cases.
Dealing with the scope of section 304A IPC, Sir Lawrence Jenkins observed in Emperor vs Omkar Rampratap(1) : "To impose criminal liability under section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another 's negligence.
It must be the cause causans, it is not enough that it may have been the cause sine qua non.
" That, in our opinion is the true legal position.
The scope of section 304A IPC came to be considered by this Court in Kurban Hussein Mohammedali Rangwalla vs State of Maharashtra(2).
In our opinion, the ratio of that decision governs the facts of the present case.
The facts of that case were : The appellant was the manager and working partner of a firm which manufactured paints and varnish.
The factory was licensed by the Bombay Municipality on certain conditions to manufacture paints involving a cold process and to store certain Specified quantities of turpentine, varnish and paint.
The factory did not have a licence for manufacturing wet paints but nevertheless manu factured them.
Four burners were used in the factory for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree.
While this unlicensed process was going on froth overflowed out of the barrel and because of heat varnish and turpentine, which were stored at a short distance caught fire, as a result of which seven workmen died.
The appellant was prosecuted and convicted under section 304A and section 285, IPC.
Hi, , appeal was summarily dismissed by the Bombay High Court.
This Court set aside the conviction under section 304A IPC, holding that (1) 4B.L.R. 679.
(2) ; 521 the mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the appellant responsible for the fire which broke out.
In the course of the judgment this Court observed that the cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though that circumstance was indirectly responsible for the fire which broke out; what section 304A requires is causing of death by doing any rash or negligent act and this means that death must be the direct or proximate result of the rash or negligent act.
On the basis of the facts of that case, this Court held that the direct and proximate cause of the fire which resulted in seven deaths was the act of one of the workmen in pouring the turpentine too early and not the appellant 's act in allowing the burners to burn in the particular room.
In the present case, we do not know what was the proximate cause of the accident.
We cannot rule Out the possibility of the accident having been caused due to the fault of the deceased.
The question whether appellant No. 1 was proficient in driving a jeep or not does not conclude the issue.
His proficiency in driving might furnish a defence, which a learner could not have, but the absence of proficiency did not make him guilty.
The only question was whether, in point of fact he was not competent to drive and his incompetence was the cause of death of the person concerned.
On behalf of the prosecution reliance was placed on the de cision of this Court in Juggankhan vs State of Madhya Pradesh (1), to which one of us was a party (Sikri, J).
The ratio of that decision does not apply to the facts of the present case.
In that ,case, it had been conclusively proved that the rash or negligent act ,of the accused was the cause of the death of the person concerned.
For the reasons mentioned above, we are unable to agree 'with the courts below that on the basis of the facts found by them the first appellant could have been held guilty under section 304A IPC.
We accordingly allow his appeal and acquit him of that offence.
From that finding, it follows that the second appellant could not have been convicted under section 201 IPC.
In the result, the second appellant 's appeal is allowed in full and he is acquitted of all the charges.
The first appellant 's appeal is allowed in part and his conviction under section 304A is set aside.
But his other convictions are sustained, namely, his convictions under section 3 read with section 112 of the Motor Vehicles Act and section 89 of the same Act, for which offences only a sentence of fine had been imposed upon him.
Appeal allowed.
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The first appellant holding only a learner 's licence was driving a jeep without a trainer by his side and injured a person.
The first appellant and his companion in the journey the second appellant put the injured in the jeep for getting medical aid, but the injured died on the way.
They cremated the dead body.
The first appellant was convicted under section 304 A I.P.C. and sections 3, 89 and 112 of the Motor Vehicles Act and the second appellant under section 201 I.P.C., and sections 5 and 89 of the Motor Vehicles Act.
HELD : There was no evidence to show that the first appellant was responsible for the incident so his conviction under section 304 A could not be sustained.
[517 H] The requirements of section 304 A I.P.C. are that the death of any person must have been caused by the accused by doing any rash or negligent act.
In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death.
There must be direct nexus between the death of a person and the rash or negligent act of the accused.
There is no presumption in law that a person who possesses only a learner 's licence or possesses no licence at all does not know driving.
For various reasons, not excluding sheer indifference, he might not have taken a regular licence.
The prosecution evidence that first appellant had driven the jeep to various places on the day previous to the occurrence war.
a proof of the fact that he knew driving.
[519 B C; 520 B C] The question whether first appellant was proficient in driving a jeep or not does not conclude the issue.
His proficiency in driving might furnish a defence.
which a learner could not have, but the absence of proficiency did not make him guilty.
[521 D E] As the conviction of the first appellant under section 304 A I.P.C. could not be sustained, the conviction of second appellant under section 201 I.P.C. had to be set aside.
Because to, establish the charge under section 201, the prosecution must first prove that an offence had been committed not merely a suspicion that it might have been committed and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear.
The proof of the commission of an offence is an essential requisite for bringing home the offence under section 201 I.P.C. [517 D G; 521 F G] Palvinder Kaur vs State of Punjab, , and Kurban Hussein Mohammedan Rangwalla vs State of Maharashtra ; , followed.
Emperor vs Omkar Rampratap 4 B.L.R. 679, approved.
516 Juggankhan vs State of Madhya Pradesh, ; distinguished.
The 'second appellant could not be convicted either under section 5 or section 89 of the Motor Vehicles Act.
In convicting him under those provisions, the fact that he was not the owner of the jeep had been overlooked.
Nor was there any proof that he was in charge of the jeep.
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Special Leave Petition (Civil) Nos. 4973/89 and 12763/89.
From the Judgment and Order dated 31.1.1989 of the Kerala High Court in O.P. No. 3218/88 and dated 25.3.82 of the Income Tax Appellate Tribunal, Cochin in I.T.A. No. 302/Coch/1977 78.
K.K. Venugopal and K.R. Nambiar for the Petitioner.
Soli J. Sorabjee, Attorney General, section Ganesh and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This is a petition under arti cle 136 of the Constitution for leave to appeal against the orders of the tribunal and the High Court.
The High Court vide its order dated 31st January, 1989 had dismissed the application for reference.
There is also an order of the tribunal refusing to make a reference under section 256(1) of the Income Tax Act, 1961 (hereinafter called 'the Act ').
This petition also seeks leave to appeal directly from the said order of the tribunal.
7 However, in order to appreciate the controversy in this case the facts reiterated by the High court of Kerala in its said judgment and order are important, it had observed as follows: "For the assessment year 1969 70 the petitioner filed a return declaring a total income of Rs.9,571.
In completing the assessment the assessing authority proceeded on the basis that the assessee was the owner of the gold seized on 9.11.68 and confiscated by the Customs authorities worth Rs.20 lakhs and accordingly the Income tax Officer treated the sum of Rs.20 lakhs as income from undisclosed source applying the provisions of Section 69 A of the Income tax Act, 1961.
On appeal, the Appellate Assistant Commissioner held that the assessee was not the owner of the contraband gold seized by the Central Excise Authority and therefore reduced the assessee 's total income by Rs.20 lakhs.
The Revenue filed a second appeal before the Appellate Tribunal, Cochin Bench.
After going through the evidence the Tribunal came to the conclusion that the car belonged to the assessee and the special places of concealment had been provided by design in the car.
Further the assessee himself was driving the car in which the gold was found.
The assessee also has not attributed the ownership to anybody else.
The assesee also has not established that the gold was given to him by any third party.
In view of all these, the addition of Rs.20 lakhs made by the Incometax Officer but deleted by the Appellate Asstt.
Commissioner was restored.
The additional ground raised by the Revenue that the appeal is not main tainable before the Appellate Asstt.
Commissioner was re jected.
The assessee thereafter filed a Miscellaneous Peti tion for rectification of the order of the Tribunal.
The rectification sought to be made are : (1) Business loss to the tune of Rs.20,00,000 incurred by the assessee due to investment in gold and the confiscation of the gold by the Customs authorities be allowed for the assessment year 1969 70, in view of the decision of the Supreme Court in CIT vs Piara Singh, decided on 8 5 1980 and reported in , (2) the income tax and special surcharge amounting to Rs. 16, 19,395, Rs.20,00,000 and 8 (3) as the tax has already been collected from the amount of Rs. 20,00,000 no interest was payable.
" The High Court noted that the tribunal could not accede to the requests of the petitioner as these could not be considered as mistakes apparent from records.
The points had not been raised by way of cross appeal or cross objections.
Thereafter, the assessee filed a petition u/s 256 of the Act seeking reference of the following questions of law: "1.
Whether the Tribunal is right in law in its view that the right to file an application under Section 254(2) of the Income tax Act, 1961 is open to be exercised only by the applicant and not by the respondent in the appeal before it? 2. Whether the Tribunal is right in law in rejecting the application under Section 254(2) on the ground that the applicant was not the appellant before it and that he had also not filed any memo of Cross objections in the appeal against him? 3.
Whether on the facts and in the circumstances of the case the assessee was bound to raise before the Tribunal, at the stage when he was only supporting the order appealed against him, of his case for deduction which he was legally entitled to claim in case of allowance of the appeal against him? 4.
Whether on facts and circumstances of the case the Tribu nal was right in law in holding that the claim of loss on account of confiscation of the gold was not the subject matter of the appeal?" The tribunal dismissed the petition holding that none of the questions sought to be raised was decided by the tribu nal and as such did not arise out of the order of the tribu nal.
Aggrieved by these two orders, one being refusal by the tribunal to refer the question as aforesaid u/s 256(1) and the other of the High Court directing the tribunal to refer the questions and state the case to the High Court, the petitioner has come up to this Court.
We find that it can legitimately be argued in the facts and the circumstances of the case that the question which essentially arose, which had to be borne in mind and which 9 was argued before the tribunal was, whether the sum of Rs.20 lakhs could be subject to taxation in the context as found by the tribunal as the income of the assessee.
The asses see 's further contention was that in view of the decision of this Court in C.I.T. Patiala vs Piara Singh, even if Rs.20 lakhs could be treated as the income of the asses see inasmuch as this has been ordered to be confiscated, there was a business loss as held in the said decision of this Court.
Therefore, this question should have been gone into which was sought to be raised by a MiscellaneOus Appli cation before the tribunal after disposal of the appeal by the tribunal.
The principle by which this should be determined has been fairly laid down by this Court in C.I.T., Bombay vs Scindia Steam Navigation Co. Ltd.; , wherein this Court at page 612 had observed as follows: "Section 56(1) speaks of a question of law that arises out of the order of the Tribunal.
Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein.
Such a question might involve more than one aspect, requiring to be tackled from different standpoints.
All that section 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal.
Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal.
It will be an over refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66(1) of the Act.
That was the view taken by this Court in Commissioner of Income tax vs Ogale Glass Works Ltd., and in Zoraster & Co. vs Commissioner of Income tax, , and we agree with it.
As the question on which the parties were at issue, which was referred to the court under section 66(1), and decided by it under section 66(5) is whether the sum of Rs.9,26,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it.
10 It is argued for the appellant that this view would have the effect of doing away with limitations which the Legislature has advisedly imposed on the right of a litigant to require references under section 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised.
It is no doubt true ' that sometimes the questions are framed in such general terms that, construed literally, they might take in questions which were never in issue.
In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case.
In this connec tion, it is necessary to emphasise that, in flaming ques tions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised.
Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those conten tions can be argued in support of it which had been raised before the Tribunal.
In our opinion, it is competent to the court in such a case to allow a new contention to be ad vanced, provided it is within the framework of the question as referred." Mr. Venugopal, appearing for the petitioner, drew our attention to the observations of Justice Shah, as the learned Chief Justice then was, at p. 617 which are to the following effect: "The source of the question must be the order of the Tribu nal; but of the question it is not predicated that the Tribunal must have been asked to decide it at the hearing of the appeal.
It may very well happen and frequently cases arise in which the question of law arises for the first time out of the order of the Tribunal.
The Tribunal may wrongly apply the law, may call in aid a statutory provision which has no application, may even misconceive the question to be decided, or ignore a statutory provision which expressly applies to the facts found.
These are only illustrative case: analogous cases may easily be multiplied.
It would indeed be perpetrating gross injustice in such cases to restrict the assessee or the Commissioner to the questions which have been raised and argued before the Tribunal and to refuse to take cognisance of question which arise out of the order of the Tribunal, but which were not argued, because they could not (in the absence of any indication as to what the 11 Tribunal was going to decide be argued." As mentioned hereinbefore, this is an application for leave to appeal from the decisions of the tribunal and the High Court under Article 136 of the Constitution.
The real and substantial question posed and canvassed before the tribunal in its appellate order and in the appeal, as is manifest from the facts stated before, was, whether a sum of Rs.20 lakhs could in the facts and the circumstances be considered as part of the income of the assessee and as such suffer taxation.
Now the question sought to be raised is, whether in view of the decision of this Court in Piara Singh 's case (supra) the amount of Rs.20 lakhs could be treated as legitimate business loss of the assessee.
It is possible to take the view that this is substan tially a different question, namely, whether an amount is a business loss even assuming that it was the income.
It is possible and conceivable to consider two different ques tions, namely, whether a certain sum of money is the income of the assessee, and secondly, whether even assuming that such was the income, was that income liable to be deducted in view of the provisions of the Act.
It is possible to take the view that these are substantially different questions and not merely different aspects of the same question.
Considerations which go into determination of whether an amount should be treated as income and the considerations which are relevant to determine whether even assuming that, that was the income the amount was deductible, are differ ent.
The question in this form was not canvassed before the tribunal at any point of time in the alternative.
It may be reiterated that the Central Excise Officers at Valayar check post seized gold weighing 16,000 gms.
from Car No. MYX 9432, which was being driven by the petitioner along with the documents and took the petitioner into custody.
The Collector of Central Excise, Madras had confiscated the gold in question and found that the petitioner was in possession of the gold.
The assessment of the petitioner for the year in question was originally completed at a total income of Rs. 1,571.
Subsequent to the completion of the original assessment, the petitioner filed a return declaring a total income of Rs.9,57 1.
The Income Tax Officer issued notice under section 148 of the Act.
The Tribunal ultimately had accepted the revenue 's contention, restored the addition of Rs.20 lakhs made by the assessing authority, inter alia, holding that the onus was on the petitioner to prove that the 12 gold was not owned by him which onus the petitioner had failed to discharge.
The Tribunal had gone into and adjudi cated the question substantially raised by the petitioner that the confiscated gold could not be treated as the income of the petitioner.
The Tribunal rejected the application of the petitioner on the ground that the claim of loss on account of the confiscation of the gold was not the subject matter of the appeal.
The principles of law have been discussed by this Court in Scindia Steam Navigation Co. Ltd 's case (supra).
In the facts and the circumstances of the case, the Tribunal and the High Courts have taken the view that wheth er certain sum of money can be treated as the income of an assessee and whether that sum of money could be deducted as loss are different question of law and not different aspects of the same question.
The Tribunal and the High Court have taken a particular view.
They have borne in mind the correct principles that are applicable in the light of the law laid down by this Court in Scindia Steam Navigation 's case (supra).
In the background of the facts and the circumstances of the case, as mentioned hereinbefore, if the aforesaid view of the Tribunal and the High Courts is a possible view, we are not inclined to interfere with that view under Article 136 of the Constitution in the light of the facts and the circumstances of this case.
We are not prepared to say that injustice has been done to the petitioner.
The view taken by the Tribunal and the High Courts is a possible view.
The Tribunal and the High Courts have borne in mind the princi ples of law laid down by this Court.
In the aforesaid view of the matter, ' in the facts and the circumstances of the case, this application is rejected and accordingly dismissed.
R.N.J. Petition dismissed.
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On November 11, 1968 the Petitioner was apprehended carrying contraband gold in a Maruti Car driven by him.
He was taken into custody and the seized gold was confiscated.
For the assessment year 1960 70 the Petitioner had filed a return declaring total income of Rs.9,571.
In finalising the assessment the Income Tax Officer added Rs.20 Lakhs being the price of the confiscated gold as income from undisclosed source.
The Petitioner went in appeal before the Appellate Assistant Commissioner who reduced the income by that amount holding that the assessee was not the owner of the confis cated gold.
On second appeal by the revenue the Tribunal restored the order of the I.T.O.
The Petitioner then moved a Misc.
Application under section 254(1) for amendment for treating Rs.20 Lakhs as business loss which was rejected by the Tribunal.
The Petitioner then moved a Petition u/s 256(1) of the Income Tax Act seeking reference to the High Court raising certain questions, which was turned down by the Tribunal holding that none of the questions sought to be raised was decided by the Tribunal and ' as such did not arise from its order.
The High Court also declined the application to direct the Tribunal to refer the questions and to state the case to it.
Hence this special leave petition directed against both the order of the Tribunal as well as the High Court.
Dis missing the Special Leave Petition, the Court, HELD: The real and substantial question posed and can vassed before the Tribunal in its appellate order and in the appeal was whether the sum of Rs.20 Lakhs be considered as part of the income of the 6 assessee and as such suffer taxation.
The question sought to be raised is whether in view of the decision of the Court in Piara Singh 's case this amount could be treated as legiti mate business loss of the assessee.
It is possible to take the view that this is substantially a different question, family whether an amount is a business loss even assuming that it was he income.
It is possible and conceivable to consider two different questions, namely whether a certain sum of money is the income of the assessee and secondly, whether even assuming that such was the income, was that income liable to be deducted in view of the provisions of the Act.
Considerations which go into determination whether an amount should be treated as income and considerations which are relevant to determine whether even assuming that, that was the income the amount was deductible, are differ ent.
The question in this form was not canvassed before the Tribunal.
The view taken by the Tribunal and the High Court is a possible view and they have borne in mind the princi ples of law laid down by the Court in Scindia Steam Naviga tion 's case.
[1 lB E; 12E] C.I.T., Patiala vs Piara Singh, 2 and C.I.T., Bombay Scindia Steam Navigation Co. Ltd., , referred to.
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Appeal No. 4474 of 1992.
From the Judgment and order dated 28.7.1992 of the Andhra Pradesh High Court in W.P. No. 9315 of 1992.
WITH WRIT PETITION (CIVIL) NO. 763 OF 1992.
(Under Article 32 of the Constitution of India) A.K. Ganguli, Rakesh K. Khanna for R.P. Singh for the Appellant/ Petitioners.
C. Sitaramiah, Ms. Pushpa Reddy and Mrs. T.V.S. Narasimhachari for the Respondents.
J. CIVIL APPEAL NO.
4474 OF 1992.
The appellant is engaged in the manufacture and sale of products like cast iron pipes, man hole covers, bends etc.
For the assessment year 1989 90, the Commercial Tax Officer, Narayanguda Circle, Hyderabad levied sales tax upon the turn over relating to said products treating them as general goods.
He overruled the petitioner 's contention that the said products are declared goods liable to tax at the rate of 4% only.
The assessees ' appeal preferred before the Appellate Deputy Commissioner is still pending.
Evidently because no stay was granted pending the said appeal, a notice was issued to the appellant calling upon him to pay the tax assessed, against which notice he preferred a writ petition, being W.P. No. 9315 of 1992, in the High Court of Andhra Pradesh.
His main contention in the writ petition was that by virtue of G.O.Ms.
No. 383 Revenue (S) Department dated 17.4.1985, his products are 'declared goods ' and are, therefore, liable to tax only @4%.
The Division Bench of the High Court dismissed the writ petition following its earlier decision in Deccan Engineers vs State of Andhra Pradesh (reported in 1991, Vol.
12 A.P. Sales Tax Generals, 138: 84 STC 92).
In Deccan Engineers, it was held by the A.P. High Court that the expression ' cast iron ' in item(2)(i)of the Third Schedule to the Andhra Pradesh General Sales Tax Act does not include cast iron pipes, man hole covers and bends etc.
In this appeal, the correctness of the said view is questioned.
Third Schedule to the Andhra Pradesh General Sales Tax Act pertains to 436 "declared goods in respect of which a single point tax only is leviable under section 6".
Section 6 was enacted by the A.P. Legislature.to accord with sections 14 and 15 of the .
Item(2) of the third Schedule to the A.P. Act reads as follows: THIRD SCHEDULE (As amended upto 15th August 1987) Declared goods in respect of which a single point tax only is leviable under Section 6.
Description of goods Points of levy Rate of Tax (1) (2) (3) (4) (1) . . . . (2) Iron and steel, that is do *4 do to say; (3002) (i) pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap; (ii) steel sends (ingots, slabs, blooms and billets of all qualities, shapes and sizes); (iii)skelp bars, tin bars, sheet bars, hoe bars and sleeper bars; (iv) steel bars (rounds, rods, squares, flats, octagons and hexagons; plain and ribbed or twisted; in coil form as well as straight length); (v) steel structurals (angles, joints, channels, tees, sheet pilling sections.
Z sections or any other rolled sections); (vi) sheets, hoops, strips and skelp, both black and galvanised, hot and cold rolled, plain and corrugated in all qualities, in straight lengths and in coil form, as rolled and in revitted condition; (vii)plates both plain and chequered in all qualities; (viii)discs, rings, forgoings and steel castings; (ix) tool, alloy and special steels of any of the above categories; (x) steel melting scrap in all forms including steel skull, turnings and borings, (xi) steel tubes, both welded and seamless, of all diameters and lengths,including tube fittings; (xii)tin plates, both not dipped and electrolytic and tin free plates; (xiii)fish plate bars, bearing plate bars,crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, rails heavy and light crane rails; (xiv)wheels, tyres, axles and wheel sets; (xv) wire rods and wires rolled, drawn, galvanised, aluminised, tinned or coated such as by copper; (xvi)defectives, rejects, cuttings or end pieces of any of the above categories.
Item (2) of the Third Schedule to the A.P. Act is an exact replica of item (iv) of section 14 of the .
According to section 15 of the Central Act, 'declared goods ' cannot be taxed at a rate exceeding 4% or at more than one stage.
The pracise question that was considered in Deccan Engineering (followed in the judgment under appeal) was whether the 'cast iron castings ' manufactured by the petitioner in that case are cast iron 'within the meaning of item (2) (i) of the Third Schedule to the A.P. Act/ Item (iv) (i) of section 14 of the C.S.T. Act.
At this stage, it is necessary to a certain precisely what does 'cast iron ' mean and how are the products of the appellant manufactured. 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould".
According to New Lexicon Webster 's dictionary of English language, the word ,cast iron ' means "an iron carbon alloy produced in a blast furnace.
It contains upto 4% carbon, and is more brittle, but more easily fused, than steel.
" According to Van Nostrand 's Scientific encyclopedia, 'cast iron ' is "primarily the product of remelting and casting pig iron".
(Interestingly, the expression 'cast iron ' with a hyphen between 'cast ' and 'iron ' has been defined separately as meaning "made of cast iron".
So far as item (iv) of section 14 is concerned, the official publication spells the expression cast iron ' without a hyphen.
Though an authorised publication of the A.P. Act is not placed before us, we presume that the printing of the said expression in the private publication placed before us represents the correct rendering it is without a hyphen.) That 'cast iron ' is different from 'cast iron 438 castings ' is brought out in the following extract from the Judgment in 'Deccan Engineering ', which is equally true in the case of the appellant as well: .LM15 "The assessee manufacturers and sells various goods mentioned earlier made from cast iron which has suffered sales tax.
The controversy is whether these several goods sold by the petitioners continue to be the same declared goods covered by the aforesaid entry or are different commercial commodity liable to levy of State Sales Tax.
The case of the Revenue is that, items sold by the petitioner are, therefore, exigible to tax as a distinct commercial commodity.
It is contended by the learned counsel for the assessee that the relevant entry in section 14 of the Central Act also IIIrd Schedule of the State Act speak of cast iron including ingots, moulds and bottom plates, iron scrap etc.
which indicates that any casting made out of cast iron also should be treated as included in the entry because of the word used 'including ' in the entry.
It is further contended that the Government of India in their letters have clarified that cast iron castings are covered by cast iron and the State Government has also issued the aforesaid G.O. subsequently under Section 42(2) of the State Act clarifying that the cast iron castings are covered within the term cast iron.
" It is thus clear that 'cast iron ' is different from 'cast iron castings ' manufactured by the appellant. 'Cast iron ' is purchased by the appellant and from that ' cast iron ', he manufactures several goods, like manhole covers, bends, cast iron pipes, etc.
In other words, 'cast iron ' used in item (iv) of section 14 of the Central Act is the material out of which the petitioner 's products are manufactured.
Position remains the same, even if the appellant purchases iron and mixes it with carbon and silicon thereby deriving 'cast iron ' and then pours it into different moulds.
In sum, 1 cast iron ' is different from the cast iron pipes, manhole covers, bends etc, manufactured and sold by the appellant.
It cannot be denied, in such a situation that the products manufactured by the appellant are, in commercial parlance, different and distinct goods from the cast iron.
Indeed this aspect is not seriously disputed by Shri Ganguli, the learned counsel for the appellant.
His case is entirely based upon certain clarifications and circulars issued both by the Central and State Governments and in particular upon an order issued by the Andhra Pradesh Government under section 42(2) of the A.P. Act namely viz., G.O. Ms. No. 383 dated 17.4.1985.
It is, therefore, necessary to refer to them.
The earliest clarification is the one contained in the latter dated 28th February, 1977 from the Department of Revenue and Banking (Revenue Wing) 439 Government of India addressed to the Finance/Revenue Secretaries of all State Governments and Union Tarritories.
It reads thus: "Subject:Clarification as to whether the term ' Cast Iron ' mentioned in section 14(iv) (i) of the would cover cast Iron casting.
In continuation of the marginally noted communications and with reference to this Department 's letter No. 24/3n3 ST.
20.11.1973, I am directed to say that the question whether the expression 'cast iron ' used in Section (iv) (i) of the will include ' Cast iron casting ' has been re examined in consultation with the Directorate General of Technical Development, Chief Chemist and the Ministry of Law, Justice & Company Affairs.
This Department has been advised that the existing expression 'cast iron ' in the aforesaid section will cover 'cast iron casting also Yours faithfully, Sd/ Deputy Secretary,to the Govt.
of India.
" Pursuant to the above clarification by the Central Government, the Commissioner of Commercial Taxes, Government of Andhra Pradesh intimated all the Deputy commissioners of commercial Taxes of the State that "Cast Iron Pipes and specials should be subjected to tax as falling under "Cast Iron" liable to tax @4% at the point of first sale in the State under entry 2 of the III Schedule of A.P.G.S.T. Act.
" To the same effect is another clarification issued by the Commissioner of Commercial Taxes, Government of Andhra Pradesh to his subordinate officials on 12.3.1982.
The next clarification from the Government of India was on 3 1st January, 1984.
It appears that the Government of Haryana had written to the Central Government stating that 'cast iron castings ' cannot be treated as declared goods and requested the Ministry of Finance, Government of India to examine the same.
It was in reply to the said query that the letter dated 3 1st January, 1984 was written by the Government of India, Ministry of Finance, Department of Revenue to the Financial Commissioner and Secretary, Government of Haryana, Excise and Taxation Department.
The letter says that the matter has been considered carefully by the Department in consultation with the Ministry of Law and the Director 440 General of Technical Development.
It set out the opinion of the Ministry of Law as also the opinion of the Director General of technical Development.
The latter 's opinion reads: "Cast iron is an alloy iron of Carbon silicon and other alloying elements if required i.e. Cast Iron Castings are covered under the term Cast Iron '.
It may also be clarified that ' cast Iron ' include Gray Iron, Chilled Malleable and Nodular Iron.
Ingot Moulds and Bottom Plates are nothing but Cast Iron Castings".
After setting out the said two opinions, the Government of India expressed its opinion in the following words: "In accordance with the above advice, cast iron castings are covered under the term "Cast Iron. . . .
State Government may kindly bring this position to the notice of Sales Tax authorities of the State.
If considered necessary this may be placed before the Committee of Commissioners of Sales Tax Commercial Tax set up under this Ministry 's letter No. Receipt of this letter may please be acknowledged.
Copies of this letter were communicated to all the State Governments and Admissions of Union Territories.
On 20th July, 1984 the Government of Andhra Pradesh, Revenue (S) Department issued a memorandum referring to the aforesaid letter of the Central Government dated 31st January, 1984 and reaffirming that " 'Cast Iron Castings ' are covered within the item Cast Iron including ingot ' in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act".
On the same day the Principal Secretary,to the Government, Revenue Department addressed a letter to the Secretary, Andhra Pradesh Small Scale Industries Association, Vijayawada informing the Association that "a clarification has been issued to the Commissioner of Commercial Taxes to the effect that "cast iron castings" are covered within the term "cast iron including ingot" in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957.
" On 27th March, 1984, however, the Commissioner of commercial Taxes, Government of Andhra Pradesh addressed a letter to all his subordinate officers stating that the question whether 'cast iron castings ' fall within the expression, 441 `cast iron ' is pending before the High Court of Andhra Pradesh and, therefore, the collection of arrears of tax due on 'raw castings ' is stayed for a period of one year.
At the end of one year, he said, the matter will be reexamined.
On 17th April, 1985 the Government of Andhra Pradesh issued a clarification contained in G.O.Ms.
No. 383 under sub section (2) of section 42 of the A.P. Act.
It will be appropriate to set out the G.O. in full: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Andhra Pradesh General Sales Tax Act, 1957 Levy, of Sales Tat on 'Cast Iron Casting ' Clarification issued.
REVENUE (S) DEPARTMENT.
G. O. Ms. No. 383.
Dated 17.04.1985 Read the followings: 1.
2216/SI/83 4.
20.7.84, 2.
No. 2216/83 4, dt.
20.7.84 addressed to Secretary A.P. Small Scale Industries Association, Vijayawada 3.
From the CCT 's Ref.
D.O.FE.Lr.
III (3) /1490/84, dt.
24.7.1984.
Government Memo 3166/SI/84 4, dt.
13.11.1984.
From the CCT.D.O. on CCT 'section Ref.
LI/(i) /1063/82 6.
Memo No. 3166/SI/84 5, dt.
22.2.1985.
From the commissioner of Commercial Taxes, Ref.
A3/LI/1093/82 dt.
19.3.1983.
ORDER: The Andhra Pradesh Small Scale Industries Association Vijayawada requested the Government to clarify whether 'cast iron ' and 'cast iron castings ' are one and the same commercial commodity.
442 2.
This matter was examined at length by the Government of India in consultation with Ministry of Law, (Department of legal Affairs) and Director General of Techinical Development.
The Ministry of Finance, Department of Revenue, Government of India clarified, in their letter F.No.
24/10/80/ ST.
dt. 31.1.1984.
to the effect that "cast iron castings" are covered within the term "cast iron".
Government have examined in detail the legal aspects of the issue and observe that the term "cast iron including ingot, moulds, bottom plates" as in sub item (i) of item 2 in the Third Schedule to the Andhra Pradesh Central Sales Tax covers "cast iron casting" and as such "cast iron castings" is not a different commercial commodity from the commodity "cast iron including ingot, moulds, bottom plates.
Under sub section (2) of section 42 of the Andhra Pradesh General Seles Tax Act, 1957 the Government hereby clarify that the "cast castings" are covered within the term "cast iron including ingot, moulds, bottom plates" occurred in sub item (i) of item 2 of this Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957.
(emphasis added) (BY ORDER IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) C.R. NAIR, PRINCIPAL SECRETARY TO GOVERNMENT." Section 42 of the A.P. Act confers upon the State Government the power to remove difficulties.
Sub section (i) confers the said power to meet the problems arising from transition from the previous Sales Tax Act to the present Sales Tax Act.
An order under sub section (1) is required to be published in the A.P. Gazette.
Sub section (2) is general in nature.
An order under sub section (2) is not required to be published in the A.P. Gazette.
Section 42 reads: "42 Power to remove difficulties: (1) If any difficulty arises in giving effect to the provisions of this Act in consequence of the transition to the said provisions from the 443 corresponding provisions of the Acts in force immediately before the commencement of this Act, the State Government may, by order in the Andhra Pradesh Gazettle, make such provisions as appear to them to be neccessary or expedient for removing the difficulty.
(2) If any difficulty arises in giving effect to the provisions of this Act (otherwise than in relation to the transition from the provisions of the corresponding Act in force before the commencement of this Act), the State Government may, by order make such provisions, not inconsistent with the purposes of this Act, as appear to them to be necessary or expedient for removing the difficulty.
" An order issued under section 42, is undoubtedly statutory in character.
A word about the validity of section 42 of the A.P.Act.
Section 37 of the Payment of Bonus Act conferred a similar power upon the Central Government; it further declared that any such order would be final.
It was truck down by a Constitution Bench of this Court in Jalan Trading Co. vs Mill Mazdoor Sabha ; as amounting to excessive delegation of legislative power.
However.
in a subsequent decision in Gammon India Limited etc.
vs Union of India & Ors. etc.
; , it has been explained by another Constitution Bench that the decision in Jalan Trading was influenced by the words occuring at the end of section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final.
Inasmuch as the said words are not there in section 34 of the , it was held, section 34 cannot be said to suffer from the vice of excessive delegation of legislative power.
It is meant "for giving effect to the provisions of the Act," it was held.
Sub section (2) of section 42 of the A.P. Act does no doubt not contain the aforesaid offending words, and can not therefore be characterised as invalid.
Yet, it must be remembered that the said power can be exercised "for giving effect to the provisions of the Act", and not in derogation thereof.
As we shall presently indicate it is necessary to bear this limitation in mind while examining the effect of G.O.Ms. 3,83.
So far as clarifications kirculars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions.
They are not binding upon the Courts.
IT is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax, if in truth such tax was leviable according to law.
, There can be no estoppel against the statute.
the understanding of the Government, whether in favour or against the assessee, is 444 nothing more than its understanding and opinion.
It is doubtful whether such clarifications and circulars bind the quasi judicial functioning of the authorities under the Act.
While acting in quasi judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars.
Law is what is declared by this Court and the High Court to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive.
of course, the Parliament/Legislature never speaks or explains what does a provision enacted by it mean.
(See Sanjeev Coke Manufacturing Company vs Mls.
Bharat Coking Coal Ltd. and another; , Now coming to G.O. Ms. 383, it is undoubtedly of a statutorily characterbut, as explained hereinbefore the power under section 42 cannot be utilised for altering the provisions of the Act but only for giving effect to the provisions of the Act.
Since the goods manufactured by the appellant are different and distinct goods from cast iron, their sale attracts the levy created by the Act.
In such a case, the government can not say, in exercise of its power under section 42 (2) that the levy created by the Act shall not be effective or operative.
In other words, the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be.
For doing that, the power of exemption conferred by section 9 of the A.P. Act has to be exercised.
Though it is not argued before us, we tried to see the possibility but we find it difficult to relate the order in G.O. Ms. 383 to the power of the Government under section 9, apart from the fact that the nature and character of the power under section 42 is different from the one conferred by Section 9.
As exemption under section 9 has to be granted not only by a notification, it is also required to be published in the Andhra Pradesh Gazette.
It is not suggested, nor is it brought to our notice, that G.O. Ms. 383 was published in the Andhra Pradesh Gazette.
This does not, however, preclude the Government of Andhra Pradesh from exercising the said power of exemption, in accordance with law, if it is so advised.
We need express no opinion on that score.
The learned counsel for the appellant brought to our notice that the very same Division Bench which rendered the decision in Deccan Engineers had rendered another decision in Tax Revision Case No. 93 of 1990 (The State of A.P. vs Pratap Steel) applying G.O. Ms. 383 and giving relief to the dealer.
It is argued that the Division Bench ought to have taken the same view in Deccan Engineers as well.
We have perused the decision in Pratap Steel.
It is a short judgment dismissing the Revision applying G.O.Ms. 383.
It does not appear that the matter was argued in the manner it was in Deccan Engineers.
The said argument, therefore, cannot advance the case of the appellant.
445 In this view of the matter in is not necessary for us to go into the question wether the word including in section 14 (iv) (i) of and item (2) (i) of the Third Schedule to the A.P. Act has the effect of making the said subclause exhaustive or otherwise.
Accordingly, we bold that the cast iron castings manufactured by the appellants do not fall within the expression 'cast iron ' in Entry 2(i) of the Third Schedule of the Andhra Pradesh General Sales Tax Act or within Section 14 (iv)(i) of the .
The appeal accordingly fails and is dismissed.
No order as to costs.
W. P. No.763 OF 1992 This writ petition preferred under Article 32 of the Constitution is directed against the notices issued by the assessing authority proposing to reopen the assessments of the petitioner/appellant with respect to earlier assessment years and also seeking to apply the principle of Deccan Engineers to the pending assessments.
For the reasons stated hereinabove this writ petition fails and is accordingly dismissed.
No costs.
G.S.B. Appeal and petition dismissed.
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Section 6 of Andhra Pradesh General Sales Tax Act, 1957 provides a single point tax @ 4 % on declared goods, mentioned in the Third Schedule to that Act.
Item (2) of the Third Schedule describes the articles made of Iron & steel which fall in the category of 'declared goods '; sub item (i) of Item (2) pertains to "pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap". 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould".
On February 28,1977 the Department of Revenue & Banking (Revenue Wing) Government of India issued a letter to all Finance/ Revenue Secretaries of all State Governments and Union Territories, explaining the term 'Cast Iron ' mentioned in section 14 (iv) (i) of the .
This letter said to have been issued in consultation with the Directorate General of Technical Development,_Chief Chemist and the Ministry of Law, Justice & Company Affairs, extended the scope of the expression 'cast iron ' to "cover 'cast iron casting ' also".
Based on similar clarifications, the Department of Revenue (S) Department of the Government of Andhra Pradesh issued a clarificatory order under section 42(2) of the Act vide GOMs No. 383 dated April 17,1985 extending the scope of the expression 'cast iron ' to include "cast iron castings".
This order was also published in the State 's official Gazette.
Section 42 (2) of A.P. General Sales Tax Act empowers the State Government to make, by an order, such provisions as appear to them necessary & expedient to remove difficulty in the implementation of this Act, provided that these are not inconsistent with the provisions of the Act.
The appellant manufactures and sells products like cast iron pipes,man 434 hole covers, etc.
He claims that read with the above clarificatory orders, he is liable to pay only 4% sales Tax under Section 6 of the A.P. General Sales Tax ct But, for the assessment year 1989 90 the Commercial Tax Officer C.T.O.) Narayanaguda Circle, Hyderabad levied Sales Tax on the said products at the rate applicable to general goods.
The C.T.O. having overruled the appellant 's contentions, the.
latter appealed to the Appellate Deputy Commissioner.
During the pendency of appeal a notice was issued to the appellant calling upon him to pay the tax assessed, since no stay has been granted in appeal.
Against this notice the appellant filed a writ petition No. 9315 of 1992 in the High Court of Andhra Pradesh.
The Division Bench of the High Court rejected the appellant 's main contention that his products were covered by Item (2) (i)of the Third Schedule to the A.P. General Sales Tax Act, and dismissed the writ petition.
Vide Civil Appeal No. 4474 of 1992 (with Writ Petition(Civil) No. 763 of 1992).
The appellant questions before this Court the above view of the High Court.
Rejecting the appellant 's contentions and upholding the judgment and order of the High Court, this Court, HELD: Law is what is declared by this Court and the High Court.
An executive authority can, at best, only opine its own understanding of the statute; such opinion is not binding upon the quasi judicial functioning of the authorities under the Act.
(444 B) Sanjeev Coke Manufacturing Company vs M/s Bharat Cooking Coal lid.
and another; , , referred to.
The Government cannot use the powers, conferred by section 42 (2) of the A.P. General Sales Tax Act, to dispense with a levy created by the Act.
(444D) The Van Nostrand 's Scientific Encyclopaedia treats 'cast iron ' 'and cast iron ' (with a hyphen) as two different words.
The Act speaks of 'cast iron ' (that is without a hyphen between the two words) (437 G H) Hence, the expression 'castiron 'in Item (2) (i) of A.P. General Sales Tax Act does not include the products cast iron pipes, man hole covers, bends etc.
(437 F) Deccan Engineers vs State of Andhra Pradesh.
1991 Vo. 12 A.P. Sales Tax Journal 138 referred to.
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ivil Appeal No. 1416 of 1975.
From the Judgment and Order dated 2.12.
1974 of the Madhya Pradesh High Court in M.P. No. 565 of 1974.
Sakesh Kumar and S.K. Agnihotri for the Appellants.
S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Respondents.
J. This is an instance of how a resourceful mind can find ingenious method to circumvent the law.
The first respondent in this case is the Home Decorators & Finance (P) Ltd. of which the second respondent is the Managing Director.
The appellant Government collects enter tainment tax under the Entertainment Duty and Advertisement Tax Act, 1936 (hereinafter referred to as the 'Act ') from the organisers of the entertainment programmes whenever the entries to such programmes are charged.
The entertainment tax is recovered at the rate of 36 per cent of the fee charged.
In order to evade this tax, the respondents evolved a stratagem and organised two 1002 performances called "Mahendar Kapoor Nite" in a local audi torium, namely, Manas Bhawan Hall Wright Town Jabalpur, on 7th and 8th July, 1974.
Although the Articles and the Memo randum of Association of the 1st Respondent did not permit them to do so, with a view both to bring the said programmes within the scope of the Articles of Association and to evade the payment of the tax, the respondents issued advertise ments of the programmes in a local newspaper giving out that the programmes were being arranged to encourage savings.
The scheme was that all those who wanted to attend the programme will become members of a group which they called "Nav Nirman Group" by paying an admission fee of Rs.2 which was non refundable and a membership subscription of Rs. 10 which was refundable after 10 years.
The advertisements also stated that since there was an overwhelming demand, the performance would be staged on two dates, namely, the 7th and 8th July, 1974 and that the membership forms would be available at the site on the dates concerned and that the entry to the pro gramme would be strictly on the production of the invitation card as well as the membership card.
It appears that on July 7, 1974 and July 8, 1974, as many as 3189 and 4649 gullible persons respectively fell victims, and paid both the admis sion fee as well as the membership subscription.
The re spondents collected both the membership forms as well as the receipts for payment from the said persons at the time of giving them the entry to the programme.
The result was that the persons concerned were left neither with the membership form nor with the receipts for the money they had paid.
Needless to say that although the promise was that such performances would be repeated for 10 years hence, and the members concerned would have an entry to the programmes on the basis of the membership cards, neither the membership cards were issued, nor the admission fee or the membership subscription were returned to the members, nor the perform ances were staged.
In effect, the respondents made good with the money they had collected ostensibly for promoting sav ings.
Thus both the members of the public were defrauded of their moneys as well the State Government of their taxreve nue.
The District Excise Officer who was also the Enter tainment Tax Collector under the said Act, sensing the ploy had, however, taken precaution to check, on both the said dates, the receipts and the amounts received by the respond ents and had dexterously prepared a panchnama at the spot.
He determined the amount of tax recoverable on the said collections, and issued to the respondents two separate 1003 notices on July 9, 1974 demanding the tax along with the dutysurcharge thereon for the collections made on 7th and 8th July, 1974 respectively.
The total amount so demanded by both the notices was Rs.35,429.76.
The respondents challenged the notices by a writ petition under Article 226 of the Constitution before the High Court.
The High Court by the impugned decision held that the assessment of the tax made by the Officer was arbitrary because, firstly, there was no allegation that the invitation cards which were issued were sold, and secondly, the subscription fee of Rs. 10 recovered from each member was not divided by 10 which it was necessary to do, for the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
The High Court, therefore, allowed the writ petition and quashed the notices.
It also appears that the respondents had paid Rs.5,000 in part payment of the amount demanded under the notices.
The High Court, therefore, also directed the appellants to refund the said amount as being "exacted" from the respondents.
We are afraid ,.
the High Court completely missed the crucial point and, therefore, mis directed itself.
The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of the members out of which Rs.2 were non refundable being the so called admission fee and Rs. 10 were refundable only after 10 years.
The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made.
Instead they were handed over entrance slips during interval which were col lected at the door.
The result was that even if the "mem bers" were to claim an entry for programmes, if any in future, they would not have been able to do so.
As it hap pened further, in fact, no programmes were ever staged at any time thereafter.
The so called 'Nav Nirman Group" did not have any legal existence.
It was an amorphous body.
The rules and regulations framed for the said body further showed some interesting features as follows: "For the purpose of Prizes there shall be Five Sub groups of one lakh members each.
After every Sub group of one lakh members there shall be total 4280 prizes divided into 20 half yearly draws and valuing total amount of Rs.5 lakhs.
The date of the First Draw will be announced through News papers.
Every member, irrespective of whether he has received any 1004 prize(s) or not shall be entitled to the refund of his deposit of Rs. 10 after the maturity of the duration of the group, i.e., 10 years, along with a bonus of Rs.2 on surren der of the official Receipt cum Membership Evidence issued by the Company.
Duration of the Group shall be commenced from the date of the 1st Draw.
x x x x x x For the purposes of Bumper Draw there shall be 50 SubGroups of 10,000 continued members each and after every such sub group there shall carry various valuable prizes to the tune of about Rs.2,50,000.
Members of incomplete subgroup of 10,000 continued members shall be given an extra bonus of Rs.25 in the shape of articles, the list of which shall be declared nearing maturity of the Group, instead of partici pating in Bumper Draw.
X X X X X X Every member will be issued a receipt while being admitted as a member and the number of such receipt shall be his membership Number also.
No separate pass book will be is sued.
The receipt itself shall be treated as final and conclusive evidence of membership.
X X X X X X After the completion of 1st sub group one lakh members the First Draw shall be conducted, but in case total membership of the sub group does not attain the target necessary to form the sub group before date of the draw (which shall be announced through Newspapers) then the remaining membership number of the sub group shall be treated as the Company 's membership numbers and any prize/benefit accruing through these numbers as a result of the draw shall remain the Company 's property.
The Company may allot such membership numbers subsequently to the new applicants for the remaining period with the subsequent benefits only.
The same rule shall apply to every further sub group of one lakh members.
X X X X X X 1005 Membership of the Group for 10 years and cannot be cancelled or withdrawn by the member before maturity of the Group.
Prizes and Film Star show are added incentive and not Part of the Scheme and are not binding on the Company under circumstance beyond control.
X X X X X X The management may change any article of the declared prize looking to the time and circumstances prevailing at the time of the particular draw.
X X X X X X The management of the Company reserves the right to add, alter, or amend the rules and regulations as and when neces sary for the efficient and proper conduCt of the group as well as in compliance with the Government rules and regula tions which may come in force hereafter and the same shall be binding on all the members.
" It will be apparent from the Scheme that it was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty.
The re ceipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
In the circumstances, whatever be the description given to the receipts/cards they were liable to the enter tainment duty.
The impugned notices were, therefore, proper ly issued by the appellants.
We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10.
Hence, we allow the appeal and set aside the impugned decision with costs.
T.N.A. Appeal allowed.
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The respondents organised two music programmes by formu lating an ostensible savings scheme under which the entry to the programme was open to persons on becoming members of the scheme by paying an admission fee of Rs.2, non refundable, and membership subscription of Rs. I0, refundable after 10 years.
The entry to the programme was strictly on the pro duction of invitation card as well as membership card.
Many persons paid the admission fee and the membership subscrip tion.
At the time of giving entry to the programme, the respondents collected the membership forms and money re ceipts from the persons concerned as a result of which they were left neither with membership form nor with the money receipts.
Although the promise was that such programmes would be repeated for 10 years yet no such performances were arranged.
The result was that members of the public were defrauded of their money and the State Government of its tax revenue.
The Entertainment Tax Collector checked the receipts of the respondent on both the dates of performances and accord ingly issued notices to them demanding the tax and the duty surcharge thereon under the Madhya Pradesh Entertain ments Duty and Advertisement Tax Act, 1936.
The respondents challenged the validity of the notices by filing a writ petition in the High Court which allowed the petition and quashed the notices by holding that the assessment of tax was arbitrary because (i) there was no allegation that the invitation cards were sold; and (ii) 1001 membership subscription of Rs. I0 was not divided by 10 since the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
Hence this appeal by the State.
Allowing the appeal and setting aside the decision of the High Court.
this Court.
HELD: The Scheme was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits.
and it was to be used as a device to evade the entertainment duty.
The receipts and the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
Therefore.
whatever be the description given to the receipts or cards they were liable to the entertainment duty.
The impugned notices were proper ly issued by the appellants.
Since the High Court completely missed the crucial point and, therefore, mis directed it self, it is not possible to accept its reasoning that Rs. 10 collected by the respondents were the membership subscrip tion or that tile duty could not have been collected at a time on Rs. 10.
[1005E F; 1003D]
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2. The controversy involved in these proceedings relates to the issue
as to whether the appellants possessed the eligibility criteria for
appointment to the posts of High School Assistants in the State of
Kerala. The main dispute is over the question as to whether the
appellants’ B.Ed. degrees were in the subjects fulfilling the eligibility
criteria. This is the common question involved in both the appeals and
we shall deal with this controversy in a composite manner in this
judgment. There are some variations in the factual basis of the claims of
both the appellants and we shall refer first to that aspect separately for
each of the appellants.
3. In the appeal originating in the Special Leave Petition (Civil) No.
4604 of 2020, the appellant is one Praveen Kumar C.P. We shall refer to
him henceforth as PK. The selection process for the post was initiated
by an employment notification dated 31st December, 2012, issued by the
Kerala Public Service Commission (KPSC). PK had applied for the said
post in Natural Science. The notification was for appointment in
Malayalam medium institutions in all the fourteen districts of the State
of Kerala. The requisite academic qualification for the post for which PK
had applied was stipulated Clause 7 of the said employment notification.
A degree in the concerned subject and B.Ed/BT in the
concerned subject conferred or recognized by the
University in Kerala (Concerned subjects are specified in
Note:- (i) Diploma in Rural Service awarded by the national
Council for Rural High Education will be treated as
equivalent to degree for the above purpose.
(ii) The applicants should have taken Botany or Zoology or
Home Science or Micro Biology as Main subjects for
graduation or post graduation.
(iii) Question papers for written test if any will be in
Malayalam, The candidates should answer the questions in
(iv) The disciplines in Degree and B.Ed Degree were
obtained should be mentioned in brackets in the application
form.
(v) Those candidates who secured B.Ed/B.T Degree from
the Universities outside Kerala should note in the
application form, the number and date of relevant orders
declaring the said degree as equivalent to those prescribed
for this selection. The copies of such order shall be
produced before the commission when it is called for.”
4. PK had obtained B.Ed. Degree in Biological Science from the
University of Mysore, the course which he pursued in Ramakrishna
Institute of Moral and Spiritual Education, Yadavgiri, Mysuru. The
University from which PK obtained B.Ed. Degree stood recognized by
University of Calicut, as would be apparent from Annexure P-10 to the
petition for special leave to appeal. This certificate stipulates:-
Certified that the B.Ed (Biological Science) Degree
of the University of Mysore after regular study has been
recognized as equivalent to the B.Ed Natural Science
Degree of this University.
Note: This is a general certificate and the original
certificate of the individual concerned has not been
verified in this office while issuing this. The eligibility
and the mode of study will be verified by the Admitting
5. PK’s certificate for B.Ed. degree did not specify the individual
subjects which formed part of his curriculum but in a document
captioned “Study Certificate” dated 12th December, 2019 issued by the
institute from which he pursued the B.Ed. course, it has been specified
he had passed B.Ed. Degree examination conducted by the University of
Mysore, Mysuru and his subjects in the B.Ed. were Content-cum-
Methodology 1-Biology and Content-cum-Methodology 2-Chemistry-
(Biological Science). This certificate was issued during pendency of the
dispute in the High Court of Kerala.
6. In the Appeal arising out of the Special Leave Petition (Civil) No.
3927 of 2021, the petitioner is one P. Anitha Devi. We shall refer to her
later in this judgment as AD. The selection process in her case was
initiated by a similar employment notification dated 15 th March, 2014 by
the KPSC. The subject-post was the same, i.e. High School Assistant
(Natural Science) but the category of schools for which this notification
was issued was Tamil medium institutions in the district of Palakkad and
Idukki. The relevant Clause pertaining to the qualification criteria of the
candidates in this notification was also Clause 7 and the stipulations
therein were broadly similar to that contained in the employment
notification dated 31st December, 2012. The said Clause in the
notification dated 15th March, 2014 specified: -
A degree of Postgraduate degree in the concerned subject
and B.Ed/BT in the concerned subject conferred or recognised
by the Universities in Kerala (Concerned subjects are specified
(i) Diploma in Rural Service awarded by the
National Council for Rural Higher Education will be
treated as equivalent to Degree for the above
purpose.
(ii) The applicants should have taken Botany or
Zoology or Home Science or Micro Biology as
Main subject for graduation or post graduation.
(iii) Post title degree holders are not eligible to
apply for the post of HSA.
(iv) Candidates applying for this post should have
sufficient knowledge in Tamil. Question papers for
written test/OMR test if any will be in Tamil. The
candidates should answer the questions in Tamil.
(v) The disciplines in which Degree and B.Ed
degree were obtained should be mentioned in
brackets in the application form.
(vi) Those candidates who secured B.Ed/B.T.
Degree from the Universities outside Kerala should
note in the application form, the number and date of
relevant orders declaring the said degree as
equivalent to those prescribed for this selection. The
copies of such order shall be produced before the
commission when it is called for.”
7. AD had obtained B.Ed. Degree in Biological Science and Physical
Science from Bharathiar University, Coimbatore, Tamil Nadu. The said
degree was also recognized by the University of Calicut in the State of
Kerala and certificate to that effect was issued on 31 st October, 2017.
This would be evident from Annexure P-4 to her petition. This
Certified that the B.Ed Degree of the Bharathiar University
Coimbatore after regular study has been recognized as
equivalent to the B.Ed Degree of this University.
Note: This is a general certificate and the original certificate
of the individual concerned has not been verified in this office
while issuing this. The eligibility and the mode of study will
be verified by the Admitting Authority.”
8. Both of them had participated in the selection process and were
included in the “main list”, which in substance signified their success in
the written test. But question arose as to whether their B.Ed. degrees
were in subjects equivalent to the “concerned subject” which was
stipulated in the employment notification. What would constitute
concerned subject has been stipulated in Note (ii) of Clause 7 of both the
employment notifications and neither of them possessed B.Ed. degree in
the subjects stipulated to be concerned in the said Clause.
9. As none of the appellants had B.Ed. degree in Natural Science, at
the time of verification of the documents of PK after publication of the
written test results, objection was raised in his case for not having B.Ed.
in the “concerned subject”. He was given time to produce the
Government Order regarding acceptance of his qualification. In the case
of AD also, similar objection was raised. PK had asked for extension of
time, which was denied, as submitted by his learned counsel. In case of
AD, she along with certain other candidates had approached the Kerala
Administrative Tribunal by filing an application (O.A. (EKM) No. 346
of 2018), inter-alia, claiming that she had the requisite qualification. An
interim order was passed on 20th February, 2018 by the Tribunal
permitting her to participate in the interview, subject to final outcome of
her petition. PK also had approached the Tribunal with an application
[O.A. (EKM) No. 257 of 2018] and an order was passed by the Tribunal
on 30th January, 2018 permitting him to take part in the interview subject
to further order in his case. On the basis of these orders, they
participated in the interview. Thereafter, the ranked lists were published
but the results of both the appellants were shown to have had been
withheld. PK again approached the Tribunal with an Original
Application registered as O.A. No. 1525 of 2019 challenging the
decision of the authorities in not accepting his B.Ed. Degree, the subject
of which he has termed as “Double Option”. During pendency of their
cases before the Tribunal, the Department of Higher Education,
Government of Kerala had issued two Government Orders (GOs) which
broadly sustained the claim of the appellants of having degrees
equivalent to that of the concerned subject. In the case of PK, the
Government Order dated 7th March, 2019 stipulated:-
Reference:- 1. Request submitted by Sri. Praveenkumar CP on
2. Letter No. ACD/03/Reg-1143/REC/18 dated
Praveenkumar CP who was included in the list of the Kerala
Public Service Commission had requested that a Government
Order be given stating that B Ed. degree in Biological Science
obtained from University of Mysore is equivalent to B Ed.
Degree in Natural Science, as per reference No. 1.
Government has considered the issue in detail on the basis of
the report of the Registrar of Mahatma Gandhi University as
per reference No. 2 which accepted that B. Ed. degree through
regular study obtained from University of Mysore is equivalent
to B.Ed. degree in Natural Science from Mahatma Gandhi
University. It is hereby ordered that B.Ed. degree in Biological
Science obtained through regular study from University of
Mysore is equivalent to B.Ed. Degree in Natural Science
obtained from Mahatma Gandhi University.
10. In the case of AD, a similar order dated 23rd July, 2019 was issued.
This GO also covered the case of another candidate Smt. Mafferith. The
Reference: 1. Application submitted by Smt. Mafferith,
2. Letter No. 103542/EQ&MG SO/2019/Admn. dated
28.06.19 of the Registrar, University of Calicut.
Smt. Mafferith, Smt. Anithadevi, who passed the exam
conducted by Kerala Public Service Commission had
submitted application as per Reference (1) to pass an
Order recognizing equivalence of Double Main B.Ed
Education & English Education) degrees obtained from
Bharathiar University through regular mode to B.Ed
Natural Science degree of University of Calicut. The
University of Calicut vide Reference (2) informed that
degrees obtained from Bharathiar University through
regular mode has been recognised equivalent as B.Ed
Natural Science degree of University of Calicut.
In the said circumstances, it is hereby ordered
that Double Main B.Ed (Biological Science Education
degrees obtained from Bharathiar University through
regular mode is recognized equivalent to B.Ed. Natural
Science degree of University of Calicut.
11. On the basis of these GOs, the Tribunal allowed both the petitions
and directed KPSC to include the appellants’ names in the ranked list. In
PK’s case, the order was passed by the Tribunal on 20th September, 2019
whereas the decision in AD’s petition was delivered on 2 nd September,
12. The KPSC assailed the Tribunal’s orders before the High Court of
Kerala. Their stand before the High Court was that equivalency ought to
operate from the dates of issue of the respective GOs and the said GOs
could not be given retrospective effect. This argument was sustained by
the High Court. In the case of PK, it was inter-alia held by the High
“The learned Standing Counsel appearing for the
PSC also contends that the equivalency issued is
after the notification and it could apply only for
future selections. Reliance is also placed on two
decisions of this Court in Lalitha Bai v. Public
Rajasree v. State of Kerala [2009 (1) KLT 259]. We
accept the contention, especially noticing the
decision of the Hon'ble Supreme Court in Zonal
Manager, Bank of India & Others v. Aarya K. Babu
and Another [(2019) 8 SCC 587]. Therein the
candidate did not have the qualification specified in
the notification, but on the basis of equivalency, this
Court allowed the candidate to be continued in the
post to the which she was appointed. The Hon'ble
Supreme Court deprecated the practice of the High
Court granting equivalency and categorically held
that the equivalency had to be specified in the
notification. The reasoning was also that there
would have been many other candidates with the
very same qualification, who would not have
applied in the belief that the said qualification is not
one prescribed in the notification.
For all the above reasons, we do not agree with the
Tribunal and we allow the original petition setting
aside the order of the Tribunal. Parties shall suffer
their respective costs.”
13. KPSC’s petition before the High Court, registered as OP (KAT)
No. 465 of 2019 against the Tribunal order in respect of AD was also
sustained on similar grounds and the orders of the Tribunal were set
aside in both their cases. In PK’s case, the judgment was delivered on
18th December, 2019 whereas KPSC’s petition against the Tribunal
judgment in AD’s case was rendered on 12th March, 2020.
14. The broad reasoning of the High Court in both the aforesaid
judgments was that the GOs could not be relied upon by the appellants
as these were issued subsequent to the employment notifications and on
conclusion of the selection processes. Opinion of the High Court was
that the acceptance of the Government Orders with retrospective effect
would amount to change in the rule of the game mid-way, which is
impermissible. The appellants have assailed legality of these judgments
before us. Their main argument is that the GOs only recognised a
subsisting position as regards status of their respective educational
qualifications and confirmation of the equivalency of their B.Ed.
subjects by the respective GOs met the eligibility requirement. It has
also been submitted on behalf of the appellants that the rejection of the
GOs issued recognizing their subsisting degrees as equivalent to that
specified on the ground that they could not be treated to have
retrospective operation would not apply in the facts of their cases.
15. The authorities which have been cited before us on behalf of
respondents, in support of the two judgments of the High Court are (i) P.
Mahendran v. State of Karnataka [(1990) 1 SCC 411], (ii) Prafulla
Kumar Swain v. Prakash Chandra Mishra & Ors. [1993 Supp (3)
SCC 181], (iii) Secretary, A.P. Public Service Commission v. B.
Ors. v. State of Rajasthan & Ors. [(2015) 8 SCC 484] and (v) Zonal
Manager, Zonal Officer, Bank of India Kochi & Ors. v. Aarya K
Babu & Anr. [(2019) 8 SCC 587]. These decisions are mainly
authorities on the point that the Rules prevailing on the date of issue of
employment notifications ought to prevail under normal circumstances
and new Rules or amendments coming midway through a selection
process cannot be applied to that process. Such new Rules would
operate prospectively. Certain judgments of the Kerala High Court have
also been relied upon by the KPSC on the same proposition of law. But
we do not consider it necessary to multiply the authorities in this
judgment on the same point.
16. Before us, argument has also been advanced by the learned
counsel for the appellants on legality of introducing specific subjects in
B.Ed. as qualifying criteria for the posts in question. Our attention in this
regard has been drawn to Clause 2(2)(a) of Chapter XXXI of the Kerala
Education Rules, 1959. The said Clause lays down that “A Degree in
concerned subject and B.Ed./ B.T./L.T conferred or recognized by the
Universities of Kerala” as qualification of a High School Assistant in a
particular subject. According to the appellants, there is no provision for
requiring a candidate having B.Ed. in concerned subject under the said
Rules. The heading of that chapter specifies that these are
“Qualifications of Private School Teachers”. But in their written
submissions, the State government has referred to the same Rules to be
applicable in the appellants’ cases as well. The appellants were seeking
employment in the State educational sector. The State wants us to give a
strained interpretation to the said Rules treating the same to be
applicable for the subject-posts, which are in State institutions and
simultaneously read the words “concerned subject” in relation to B.Ed.
Degree also. This argument of the State is advanced on the ground that
it would be in the interest of maintaining quality of education. But on a
plain reading of the said clause, it is apparent that there is no specific
subject in B.Ed. has been made to be the qualifying criteria in Clause
2(2)(a) of Chapter XXXI of the 1959 Rules. The graduation requirement
in concerned subject is there, but going by the said Clause, it postulates
B.Ed. degree simplicitor as the eligibility criteria. No other Rule has
been shown to us by the learned counsel for the State of Kerala or the
Commission from which it can be inferred that there was requirement of
a candidate for the subject posts to hold B.Ed. degree in the concerned
subject. So far as the present appellants are concerned, no dispute has
been raised over their graduation being in the concerned subject.
17. On behalf of KPSC, it has been contended that it was within their
power to stipulate qualification beyond that what is specified in
aforesaid Clause 2(2)(a) and they have relied on Kerala State and
Subordinate Services Rules, 1958 to establish that they had power to do
so. The said Rules lay down various aspects of recruitment and
conditions of service in the State of Kerala and Rule 10 thereof deals
with qualification requirements for a post in State and Subordinate
Services. The Kerala State and Subordinate Services Rules, 1958 have
been framed under Article 309 of the Constitution of India. The relevant
provisions of Clause 10 thereof provide:-
“10. Qualifications. _____ (a) (i) The educational or other
qualifications, if any, required for a post shall be as
specified in the Special Rules applicable to the service in
which that post is included or as specified in the executive
orders of Government in cases where Special Rules have
not been issued for the post/service.
(ii) Notwithstanding anything contained in these rules or in
the Special Rules, the qualifications recognized by
executive orders or standing orders of Government as
equivalent to a qualification specified for a post, in the
Special Rules or found acceptable by the Commission as
per rule 13 (b) (i) of the said rules in cases where
acceptance of equivalent qualifications is provided for in
the rules and such of those qualifications which pre-
suppose the acquisition of the lower qualification
prescribed for the post, shall also be sufficient for the post.”
18. Clause 13 of the 1958 Rules permits the Commission to prescribe
special qualifications in cases where appointments have to be made in
consultation with it or by the State Government or by an appointing
authority with approval of State Government in other cases. No specific
notification or order issued by the KPSC has been brought to our notice
under which the eligibility criteria of holding B.Ed. Degree had to be in
the concerned subject for the posts of High School Assistants. KPSC’s
submission on this point is that the same was not raised at any earlier
stage of the proceeding. But in our opinion, the appellants cannot take
aid of this argument as the respective employment notifications had
specified B.Ed. in concerned subject. The appellants having participated
in the said selection process without raising any objection on that count,
it would not be open to them to question the eligibility criteria specified
in the employment notification. We shall, thus, proceed on the basis that
the candidates for the posts in question were required to have B.Ed.
degree in the concerned subject and it is not in dispute that B.Ed.
degrees of the appellants were not in the concerned subjects. The two
GOs, however, confer on the subjects in which the appellants obtained
B.Ed. degrees, equivalency to the required subjects.
19. There is support for adoption of principle of equivalency in Clause
10 (a)(ii) of the 1958 Rules. The appellants’ case is also that their B.Ed.
degrees should have been accepted as their subjects in the respective
degree courses were equivalent to the designated subjects, as was
stipulated in the employment notifications.
20. We shall now turn to the question as to whether the two GOs dated
07th March, 2019 and 23rd July, 2019 could apply in the cases of the
appellants for consideration of the equivalent status of their degrees in
B.Ed., the employment notifications having been published in the years
2012 and 2014. In that perspective, will consideration of their degrees in
B.Ed. in the light of the aforesaid two GOs result in changing the rules
21. Before we address that question, we shall refer to Note (v) and
Note (vi) of Clause 7 of the respective employment notifications
concerning PK and AD respectively. We have reproduced the said
Clauses earlier in this judgment. There was requirement in Clause 7 that
the candidates ought to disclose the dates of GOs declaring equivalency
to the concerned subjects. But neither the KPSC nor the State has
argued before us that there was any defect in the appellants’ applications.
They were permitted to participate in the written test. On this count, the
respondents have relied on a judgment of this Court in the case of T.
Jayakumar v. A. Gopu [(2008) 9 SCC 403] to contend that oversight
on the part of the authorities at the stage of processing applications
would not be treated to be condonation of some fatal defect in such
applications. Next requirement, as per said Clause 7 was production of
such Orders before the Commission when the same was called for. The
respective clauses did not, however, identify the authorities who should
issue such orders. The two universities of the State of Kerala have
certified the appellants’ B.Ed. degrees to have equivalent status to the
ones required and this was followed by the two GOs. These documents,
however, were generated during the selection process.
22. A large body of authorities was cited to contend that such
recognition subsequent to publication of the employment notification
was impermissible. The High Court particularly relied on a Full Bench
decision of the Kerala High Court in the case of A. Suma v. The Kerala
Public Service Commission & Ors. reported in [(2011) 1 KLT1 (FB)].
In that judgment, referring to the 1958 Rules, it was held that the
Commission was incompetent to deal with the question of equivalence
of educational and other qualifications prescribed unless the subject
rules provided for recognition of qualifications other than that prescribed
as equivalent. But so far as these two appeals are concerned, we are not
dealing with a question as regards the authority of Commission to deal
with the question of equivalency. In this case, equivalency has been
declared by the State Government, and prior to that, by two universities
of the State of Kerala. The power of the State Government to make
orders on the question of equivalence is not in dispute. Such power, inter
alia, stems from Clause 10(a) (ii) of 1958 Rules. Thus, the case of A.
Suma (supra) has no application as regards the appellants’ rights to be
considered for the posts in question having regard to their B.Ed. degrees.
23. Learned counsel for the respondents have emphasised on the
decision of this court in the case of Aarya K. Babu (supra). This case
involved the question of appointment of certain individuals by the
appellant bank in the post of Agricultural Field Officer. One of the
degrees prescribed in the eligibility criteria was Agro-Forestry. The
clause relating to qualification requirement in the notification dated
operation & Banking/Agro-Forestry.”
24. The candidates who brought that action initially did not possess
degree in any of the subjects specified therein, but their degrees were in
Forestry. They were successful in the selection process but their
selection was cancelled on the ground that they did not possess the
prescribed qualification in terms of the notification. It transpired that
there was no 4-year degree programme being offered in this country for
Agro-Forestry. Indian Council of Agricultural Research (ICAR) had
taken a view that definition of agriculture included forestry. It appears
that on that basis the degrees of the respective candidates in that
proceeding were accepted at the initial stage. In the month of November,
2015, an Office Memorandum was issued by the Ministry in which the
fact of there being no 4-year bachelor programme in Agro-Forestry
available in the country was taken note of. On the ground that Agro-
Forestry was covered comprehensively as a subject in the ICAR
approved syllabus for B.Sc. Forestry, it was suggested that it would be
appropriate that degree in B.Sc. Forestry ought to be considered for the
posts of Agricultural Field Officer in banks. A corrigendum was
subsequently issued by the Indian Bank Personnel Selection (IBPS) on
16th January, 2016 in that regard. The cancellation order was
successfully challenged by the terminated candidates in the High Court
of Kerala, against which the Bank instituted the petition for special leave
to appeal. Leave was granted in the Bank’s petition. It was held by a
coordinate Bench of this Court in the case of Aarya K. Babu (supra):-
“17. In that backdrop, though in the instant facts presently
the qualification possessed by the private respondents is
decided to be included for the purpose of recruitment to the
post of Agricultural Field Officer, as on the date of the
recruitment notification the same was not included therein,
which cannot be substituted by the Court with
retrospective effect for the reasons stated above. Therefore,
in the said circumstance, in the present facts, the High
Court was not justified in its conclusion. We, however,
make it clear that though we have referred to the legal
position and applied the same to the case of the parties
who are before us, if in the case of similar recruitment, the
employers themselves have permitted the equivalence and
have continued such of those officers recruited, this
decision shall not be applied to initiate action against such
officers at this distant point of time. Subject to the above,
the orders passed by the High Court of Kerala which are
impugned herein are set aside.
18. Having arrived at the above conclusion we also take
note of the submission of the learned counsel for the
private respondent in the appeal arising out of SLP (C) No.
16567 of 2016, namely, Smt. Aarya K. Babu that she is
placed in very difficult circumstances subsequent to the
discharge from service which is also due to certain setback
in her personal life. Though we do not wish to articulate
the actual fact situation narrated we have no reason to
disbelieve the same, hence, we find it appropriate that in
her case it is necessary to exercise our discretion under
Article 142 of the Constitution to serve the ends of justice
and do complete justice without prejudicing either of the
parties. In that view, we direct the appellant Bank of India
to provide appointment to Smt. Aarya K. Babu as
Agricultural Field Officer or such other equivalent post if
the vacancy exists as on today or in the vacancy that would
arise in future. In that regard it is made clear that the same
will be considered as a fresh appointment from the date of
appointment and no previous benefit can be claimed by
her. Further, it is made clear that this direction is issued in
the peculiar facts and circumstances of this case and the
same shall not be treated as a precedent for any other
case.”
25. So far as the present appeals are concerned, the facts are not
identical or near similar also considering the factual background of the
case of Aarya K. Babu (supra). In the two GOs which have been
reproduced earlier, it has been specified that the respective B.Ed. degrees
of the appellants through regular study were equivalent to B.Ed. degree
in Natural Science. In the case of PK, his B.Ed. Degree in Biological
Science was recognized as equivalent to B.Ed. Natural Science Degree
of Mahatma Gandhi University, Kerala. In the case of AD, the GO
stipulated that Double Main B.Ed. (Biological Science Education and
Physical Science Education) degree obtained by her through regular
mode was recognized as equivalent to B.Ed. Natural Science Degree of
University of Calicut. It is a fact that these orders came much after the
employment notifications were issued. But what we have to address in
these appeals is as to whether the respective B.Ed. degrees of the
appellants declared as equivalent to those of the concerned subjects as
notified would operate from the dates of issue of the respective GOs or
the same would relate back to the time when they obtained the degrees
or at least to the date of the employment notification. The appellants
have relied on a decision of a coordinate Bench in the case of Beena R.
v. Kerala Public Service Commission and Ors. [(2017) 15 SCC 306].
In that case, however, there was no dispute in the case of appellant that
she possessed equivalent qualification of KGTE (English typewriting)
but she did not have separate certificate as far as the computer
wordprocessing was concerned. In this judgment, a coordinate Bench
examined the implication of the expression “produced”. This authority
does not aid the appellants.
26. Note (v) of Clause 7 of the employment notification in the case PK
and Note (vi) of Clause 7 of the employment notification in the case of
AD required disclosure of the equivalency orders. A plain reading of the
two GOs clearly reflect that their degrees were equivalent to the
requisite qualifications contained in the eligibility criteria. In the case of
Aarya K. Babu (supra), the disputed subject was recognized
subsequently and introduced as part of the eligibility criteria. The
principle of equivalency was not the main reasoning on the basis of
which the said case was decided. The word “equivalence” in its plain
meaning implies something which is equal to another. In the field of
academics, application of the principle of equivalency in relation to
degrees in two subjects would mean that they had the same standing or
status all along, unless the official instrument according equivalency
specifies a date from which the respective subjects would be treated as
such, in express terms or by implication.
27. Whether a GO would have prospective effect or relate back to an
earlier date is a question which would have to be decided on the basis of
text and tenor of the respective orders. The GOs which declared
appellants’ degrees to be equivalent to those required as per the
applicable notifications were not general orders but these two orders
were person specific, relating to the two appellants. Once the GOs
specifically declared that their B.Ed. degrees were equivalent to the
designated subject which formed part of the employment notification,
the GOs in substance have to be interpreted as clarificatory in nature and
these cannot be construed to have had elevated the status or position of
the degree they already had after the declaration was made in the GOs.
The subject GOs only recognised an existing state of affairs so far as the
nature of the degrees were concerned and did not create fresh value for
the degrees which the appellants possessed. Though these equivalent
orders were not in existence on the dates of issue of employment
notifications, the GOs in substance recognize such status from the dates
of obtaining such degrees. The GOs do not reveal any intervening
circumstances which could be construed to imply that the respective
degrees acquired the equivalent status because of such circumstances
occurring subsequent to grant of their B.Ed. degrees. The aforesaid
Notes to Clause 7 of the employment notifications postulated disclosure
of the number and date of the orders on equivalence. But the GOs to
which we have referred treat the equivalency to be operating on the dates
of obtaining such degrees. Thus, the defect, if any, on disclosure
requirement, shall stand cured on issue of the University orders followed
by the GOs. The GOs also specify the context in which these were
issued and refer to the appellants being included in the list of KPSC.
This being the case, we do not think treating the appellants’ degrees as
equivalent to those required under the applicable notifications by the
GOs issued in the year 2019 would result in change in the rules of the
game midway. At best, it can be termed as interpreting the rules when
the game was on, figuratively speaking. Such a course would, in our
opinion, be permissible. For this reason, we do not consider it
necessary to deal with the different authorities cited on the principle of
“change in the rule of the game midway”. We have opined that the
appellants’ degrees in B.Ed. were equivalent to those required by the
employment notifications and the equivalency orders were merely
clarificatory in nature. For this reason, we do not think there was any
fundamental breach of Notes (v) and (vi) of Clause 7 of the respective
employment notifications in the cases of the appellants.
28. Once we hold so, we do not think relief can be denied to these two
appellants on the ground that other similarly situated persons may not
have had applied for the same posts and were being put to disadvantage.
In the case of Aarya K. Babu (supra), that course was adopted by a
coordinate Bench as it was a new subject which was added to a
subsisting range of subjects in the qualification criteria. The principle of
service jurisprudence that a candidate must possess the requisite
qualification for a post on the date of issue of employment notification
cannot be applied in the appellants’ cases, as in our view, they possessed
equivalent qualifications when they applied for the posts. The GOs only
confirmed the equivalency of their B.Ed. degrees. In our opinion, they
shall be deemed to have had the equivalent qualification on the relevant
date. As we have held that the respective GOs only clarified or
confirmed an existing status of certain educational qualifications, in
absence of specific instance of similarly situated but unspecified number
of persons having not applied for the posts would be unfair to the ones
who apply for the same and undergo three levels of litigations to
establish that they had equivalent degrees.
29. The judgments under appeal are accordingly set aside and the
orders of the Tribunal dated 20th September, 2019 and 2nd September
2019 shall stand restored. Let result of the appellants be disclosed and in
the event, on the basis of their performance, they come within the list of
selected candidates as per the ranked lists, the benefit thereof shall not
be denied to the appellants on the ground of lapse of the list by efflux of
time. In the event they qualify for appointment, they shall be given
appointment and they shall be treated to have been in service from the
date of their appointment in their respective posts. The appeals stand
allowed in the above terms. All pending applications stand disposed of.
30. There shall be no orders as to costs.
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The Supreme Court has held that candidates with B.ED degree in 'Biological Science' are eligible to apply to the post of High School Assistant (Natural Sciences) in government schools in Kerala.A bench comprising Justice L Nageswara Rao and Justice Aniruddha Bose set aside the judgments of the Kerala High Court which held that B.Ed degree in 'Biological Science' was not a qualification for...
The Supreme Court has held that candidates with B.ED degree in 'Biological Science' are eligible to apply to the post of High School Assistant (Natural Sciences) in government schools in Kerala.
A bench comprising Justice L Nageswara Rao and Justice Aniruddha Bose set aside the judgments of the Kerala High Court which held that B.Ed degree in 'Biological Science' was not a qualification for High School Assistant (Natural Sciences).
Background facts
The Supreme Court was considering two appeals. The appellants were persons with B.Ed in 'Biological Science'. As per the notification issued by the Kerala Public Service Commission, the qualifications for the post of HSA (Natural Sciences), were :
Applicants should have taken Botany or Zoology or Home Science or Micro Biology as Main subjects for graduation or post graduation.B.Ed/BT in the "concerned subject".
The issue was whether B.Ed in 'Biological Sciences' would qualify as B.Ed in the "concerned subject" for the purpose of HSA(Natural Science).
When the PSC refused to accept their applications, stating that they don't have B.Ed in 'Natural Science', they approached the Kerala Administrative Tribunal. During the pendency of their cases before the KAT, the Kerala Government issued two orders stating that the B.Ed 'Biological Science' degree of the appellants were equivalent to B.Ed in 'Natural Science'.
On the basis of these Government Orders, the Tribunal allowed both the petitions and directed KPSC to include the appellants' names in the ranked list.
The KPSC assailed the Tribunal's orders before the High Court of Kerala. Their stand before the High Court was that equivalency ought to operate from the dates of issue of the respective GOs and the said GOs could not be given retrospective effect from the date of notification of the posts. Accepting the argument of the PSC, a division bench of Justices K Vinod Chandran and VG Arun of the High Court set aside the order of the KAT. The High Court said that the acceptance of the Government Orders with retrospective effect would amount to change in the rule of the game mid-way, which is impermissible.
Challenging the High Court verdict, the candidates approached the Supreme Court. Their main argument is that the GOs only recognised a subsisting position as regards status of their respective educational qualifications and confirmation of the equivalency of their B.Ed. subjects by the respective GOs met the eligibility requirement.
Supreme Court's reasoning
The Supreme Court noted that there is no provision in the Kerala Education Rules which making B.Ed in a specified subject the qualifying criteria.
"The graduation requirement in concerned subject is there, but going by the said Clause, it postulates B.Ed. degree simplicitor as the eligibility criteria. No other Rule has been shown to us by the learned counsel for the State of Kerala or the Commission from which it can be inferred that there was requirement of a candidate for the subject posts to hold B.Ed. degree in the concerned subject", the judgment authored by Justice Aniruddha Bose stated.
As regards the Government Orders, the Court held that they "recognized an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed".
"Once the GOs specifically declared that their B.Ed. degrees were equivalent to the designated subject which formed part of the employment notification, the GOs in substance have to be interpreted as clarificatory in nature and these cannot be construed to have had elevated the status or position of the degree they already had after the declaration was made in the GOs. The subject GOs only recognised an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed. Though these equivalent orders were not in existence on the dates of issue of employment notifications, the GOs in substance recognize such status from the dates of obtaining such degrees. The GOs do not reveal any intervening circumstances which could be construed to imply that the respective degrees acquired the equivalent status because of such circumstances occurring subsequent to grant of their B.Ed. degrees", the judgment stated.
The Court said that it does not think "treating the appellants' degrees as equivalent to those required under the applicable notifications by the GOs issued in the year 2019 would result in change in the rules of the game midway".
"At best, it can be termed as interpreting the rules when the game was on, figuratively speaking. Such a course would, in our opinion, be permissible", the Court observed.
"We have opined that the appellants' degrees in B.Ed. were equivalent to those required by the employment notifications and the equivalency orders were merely clarificatory in nature. For this reason, we do not think there was any fundamental breach of Notes (v) and (vi) of Clause 7 of the respective employment notifications in the cases of the appellants", the Court added.
The Supreme Court set aside the High Court's judgment and restored the orders of the Administrative Tribunal.
"Let result of the appellants be disclosed and in the event, on the basis of their performance, they come within the list of selected candidates as per the ranked lists, the benefit hereof shall not be denied to the appellants on the ground of lapse of the list by efflux of time. In the event they qualify for appointment, they shall be given appointment and they shall be treated to have been in service from the date of their appointment in their respective posts", the Court ordered.
Advocate Sarath Janardanan appeared for the appellant.
Case Details
Title : Praveen Kumar CP v. Kerala Public Service Commission and others(C.A No.4846/2021) and connected case
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Criminal Appeal No. 169 of 1987.
From the Judgment and Order dated 11.8.1986 of the Allahabad High Court in Criminal Appeals No. 583, 892 896 of 1985 and Capital Reference No. 2 of 1985.
724 Shakeel Ahmad for the Appellants.
The Judgment of the Court was delivered by SEN, J.
Appellants Asharfi Lal and Babu who are real brothers, are under sentence of death on their conviction under section 302 read with section 149 of the Indian Penal Code, 1860 for having committed the brutal murders of their two nieces Kumari Sumati, aged 14 years and Kumari Kalkanta, aged 20 years, daughters of their pre deceased paternal cousin, and under section 307 read with section 149 of the Indian Penal Code for having attempted to commit the murder of Smt.
Bulakan, widow of Devi, and sentenced to undergo rigorous 'imprisonment for 7 years.
The remaining appellants Ganga Prasad and Hemraj, two sons of Asharfi Lal, and Mata Badal, son of Babu, have been convicted under section 302 read with section 149 of the Indian Penal Code for having committed the two murders in further ance of the common object of their unlawful assembly and each of them sentenced to life imprisonment.
They have also been convicted under section 148 for the attempted murder of Smt.
Bulakan.
There was long drawn litigation between the Smt.
Bulakan on the one hand and the appellants on the other in respect of certain agricultural property.
The last of the series of the litigation was a proceeding initiated under section 145 of the Code of Criminal Procedure, 1973 on a report made by Smt.
Bulakan, P.W. 1.
To wreak their vengeance, the appellants effected an entry on the night between August 13/14, 1984 into the courtyard of the adjoining house where the three ladies were sleeping on three different cots.
The testimony of Smt.
Bulakan, P.W. 1 shows that she woke up hearing the shrieks of her younger daughter Kumari Sumati and found that appellant Mata Badal was perched over the lower part of the body of Kumari Sumati pressing down her legs while appellant Babu repeatedly struck her with a gandasa and severed her neck.
The girl died almost instanta neously; her head hung down the cot partially attached to the neck.
Bulakan further deposes that appellant Ashar fi Lal struck her other daughter Kumari Kalkanta on the neck and face with a banka while appellant Hemra chopped off the right hand of the girl with a gandasa.
She also shrieked and appellant Ganga Prasad struck her on the face and upper part of the body with a gandasa.
She ran from her house through the village abadi and fell down near the house of Kandhai, P.W. 2, which was some 30 40 paces away.
She narrated the incident to Kandhai who immediately ran and informed Bhag wati Prasad Pandey, P.W. 3 who resided some 200 paces away.
The Village Pradhan Bhagwati Prasad Pandey, P.W. 3 accompa nied by some of the villagers arrived at the house of Smt.
Bulakan and saw the 725 deceased Kumari Sumati lying dead on the cot and Kumari Kalkanta lying unconscious in a pool of blood on another cot.
She subsequently died in the hospital.
Learned counsel for the appellants made no endeavour to challenge the conviction of the appellants for having com mitted various offences with which they were charged, and rightly so.
The conviction of the appellants rests on the unimpeachable and truthful evidence of Smt.
Bulakan who was herself the victim of the murderous assault, as conoborated by P.W. 2 Kandhai and P.W. 3 Bhagwati Prasad Pandey.
She is a natural witness and has given a vivid description of the entire incident resulting in the gruesome deaths of her daughters Kumari Sumati and Kumari Kalkanta.
It is estab lished in evidence that immediately after the occurrence she named all the assailants.
The first information report (Exh.
Ka 1) lodged by Bhagwati Prasad Pandcy P.W. 3, the Village Pradhan, contains the names of the assailants.
The 1st Additional Sessions Judge, Barabanki by his judgment and sentence dated August 23, 1985 convicted the two appellants Asharfi Lal and Babu under section 302 of the Indian Penal Code on two counts of murder and awarded them capital punishment.
He also convicted Ganga Prasad and Hemraj, two sons of Asharfi Lal, and Mata Badal, son of Babu, under section 302 read with section 149 and sentenced each of them to undergo life imprisonment.
All the appellants have also been convicted under section 148 of the Indian Penal Code.
The High Court by its judgment dated August 11, 1986 on a careful consideration of the evidence has agreed with the learned Additional Sessions Judge and confirmed the conviction and sentences awarded to the appellants.
In affirming the sentence of death imposed on the two appellants Asharfi Lal and Babu, the High Court observed that on a careful consideration of the entire material, the facts and circumstances and the applicable law, it was satisfied that this was one of the rarest of the rare cases where death penalty is the only appropriate sentence which ought to be imposed on them.
We have heard learned counsel for the appellants mainly on the question of sentence but we are not impressed with his submission.
The two appellants Asharfi Lal and Babu were guilty of a heinous crime out of greed and personal ven geance and deserve the extreme penalty.
This case fails within the test 'rarest of the rare cases ' as laid down by this Court in Bachan Singh vs State of Punjab, as elaborated in the later case of Machhi Singh vs State of Punjab, The punishment must fit the crime.
These were cold blooded brutal murders in which two innocent girls lost their 726 lives.
The extreme brutality with which the appellants acted shocks the judicial conscience.
Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by section 302 of the Indian Penal Code.
It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment.
The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of the two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother Smt.
Bulakan is nothing but death.
As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants Asharfi Lal and Babu is confirmed.
The appeal is dismissed accordingly.
N.P.V. Appeal dis missed.
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The prosecution alleged that in order to wreak their vengeance on account of long drawn litigation in respect of certain agricultural property between P.W. 1 and the appel lants two real brothers and their three sons, the appel lants effected entry on the night of 13/14 8 1984 into the courtyard of the adjoining house where P.W. 1 and her two daughters.
were sleeping and brutally attacked them with gandasas and a banka.
The younger daughter was repeatedly struck with a gandasa and her neck was severed, as a result of which she died instantaneously, while the other daughter was struck on the neck and face with a banka and her right hand was chopped off with the gandasa, and she died later in the hospital.
P.W. 1 was struck on the face and upper part of the body with the gandasa.
She ran from the house through the village abadi and narrated the incident to P.W. 2 who, in turn, informed P.W. 5, the Village Pradhan.
After visit ing the scene of offence, P.W. 3 filed a First Information Report.
The appellants were tried and the two brothers were convicted under Section 302 of the Indian Penal Code on two counts of murder and were awarded capital punishment while the other three appellants were convicted under Section 302 read with Section 149 of Indian Penal Code and sentenced to life imprisonment.
All the appellants were also convicted under Section 148 of the Indian Penal Code.
723 The High Court, affirming the conviction and sentences awarded to the two brothers, observed that it was satisfied that this was one of the 'rarest of the rare cases ' where death penalty was the only appropriate sentence which ought to be imposed on them.
Dismissing the appeal, this Court HELD: 1.1 It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment.
[726B] 1.2 The punishment must fit the crime.
The present cases were cold blooded brutal murders in which two innocent girls lost their lives.
The extreme brutality with which the appellants acted shocks the judicial conscience.
The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother is nothing but death.
[725H; 726B C] 1.3 Failure to impose death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality, will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code.
[726A B] 1.4 As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants is confirmed.
[726C] 1.5 The two appellants were guilty of a heinous crime out of greed and personal vengeance and deserve the extreme penalty.
This case falls within the test 'rarest of the rare cases ' as laid down by this Court.
[725G H] Bachan Singh vs State of Punjab, [1980] SCC 684 and Machhi Singh vs State of Punjab, referred to.
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Appellate Side
Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Ajay Kumar Gupta
C.R.A. 561 of 2015
Jiten Barman
Versus
The State of West Bengal
For the appellant : Mr. Amitabha Karmakar, Adv.
For the State : Mr. Parthapratim Das, Adv.
Mrs. Manasi Roy, Adv.
Heard on : 21.12.2022
Judgment on : 11.01.2023
Ajay Kumar Gupta, J:
1. The instant appeal is directed against the judgment and order dated
15.06.2015 and 18.06.2015 passed by the Additional Sessions Judge, 3rd
Court, Tamluk in Sessions Trial No. 3(11)/2014 arising out of Sessions Case
No. 299 (June) of 2014 whereby convicting and sentencing the appellant to
suffer rigorous imprisonment for 10 years along with a fine of Rs. 30,000/-,
in default, to suffer simple imprisonment for six months for the offence
punishable under Section 326A/34 of the Indian Penal Code.
2. Brief facts of the prosecution case is that one Smt. Pampa Barman,
the mother and sister of the victims alleged that on 10.08.2013 at night after
having dinner her daughter, Sastika Barman and sister, Shampa Barman
had been sleeping in the father’s house. At about 2 a.m. at night her sister
and daughter started shouting loudly. After awakening parents of the
complainant immediately switched on the electric light and noticed the face,
breast of her sister and the belly, hand and leg of her daughter were burnt
extensively with blisters. It was suffocating in the whole room by the essence
of carbolic acid. Immediately her sister and daughter were removed to
hospital for their treatment. Both were admitted in Tamluk District hospital
in serious condition.
3. It was further alleged that Jiten Barman S/o- Dipak Barman of
Rajanagar Baharjola, P.S.- Tamluk and his friend Gajen Jana S/o- Naru
Jana of Kalapenya P.S.- Nandakumar, District- Purba Medinipur used to
tease her sister in various manner while going to school on the road. Jiten
Barman used to propose her for marriage. As her sister disagreed with his
proposal, Jiten Barman used to express if she does not marry him he would
make her condition so that no man of the world would marry her and also
expressed that human being would be frightened by seeing her face. As her
sister informed about the incident to her parents, they stopped her from
going to school or on the road and promptly arranged for the marriage of her
sister. Date was proposed for the visit of bride groom’s party from Haur on
11.08.2013 for betrothal. It was her strong belief that coming to know this
fact Jiten Barman and his friend Gajen Jana had spoiled the life of her sister
and daughter by throwing acid on their persons. She submitted a written
complaint to that effect in resulting Tamluk P.S. Case No. 338 of 2013 dated
11.08.2013 had been started under Section 450/326A/307 I.P.C. against
the appellant and his friend Gajen Jana.
4. The Officer-in-Charge, Tamluk P.S. initially entrusted the said case for
investigation to S.I. Swapan Chabri, who subsequently on his transfer
investigation was transferred to another police officer, Sri Maniklal Adak.
After completion of investigation, charge sheet was filed against the
appellant and Gajen Jana under Section 450/326A/307/34 of the I.P.C.
5. The case was committed to the Learned Court of Session after taking
cognizance by the Chief Judicial Magistrate as the case was a sessions
triable one. Subsequently, the case was transferred to the Learned
Additional Sessions Judge, 3rd Court, Tamluk for trial and disposal.
6. Charge was framed under Section 450/326A/307/34 of the I.P.C.
against the appellant and Gajen Jana, who were pleaded not guilty and
claimed to be tried. In order to prove the case, prosecution examined 12
witnesses and exhibited number of documents as Exhibits 1 to 14 and
material Exhibits I and II respectively.
7. Defence of the appellant was that he is innocence and false
implication. During questioning by the Court under Section 313 of the
Cr.P.C., the appellant made a simple denial, though incriminating materials
both oral and documentary were brought to his notice. No evidence adduced
from the side of defence.
8. After appreciation of the oral evidence and considering the documents
exhibited by the prosecution, the Trial Judge, by impugned judgment and
order, convicted and sentenced the appellant as mentioned above. By the
selfsame judgment, co-accused Gajen Jana was convicted and sentenced as
similar as appellant. However, he has not preferred appealed against his
conviction and sentence as revealed from the office report.
Arguments led by the parties:
9. Learned counsel appearing on behalf of the appellant submitted that
the trial Court did not appreciate the evidence of the prosecution that none
of the witnesses saw them at the place of incident or committing offence as
alleged. Victims only suspected that the appellant Jiten Barman and another
convict Gajen Jana committed the offence at the said night because they
were causing disturbance and teasing Sampa Barman on the way of her
school. The appellant Jiten Barman loved her and he wanted to marry her.
None of the witnesses explained how they had entered the house where the
incident had taken place. There is no whisper about the entry of the
appellant in the house of the victims at night. There is no eye witness as
such case is totally based on circumstantial evidence. It is further submitted
that witnesses failed to identify the appellant in Court. No T.I. Parade was
also held by the prosecution. Strong suspicion by the prosecution case is not
sufficient to hold the appellants guilty of the offences alleged. Prosecution
also failed to prove with reliable evidence the harassment and teasing of the
victim while going to school. Finally it is submitted the Trial Court had
convicted and sentenced the appellant on the basis of surmises and
conjectures only. Therefore, the order of conviction is required to be set
aside.
10. Per contra learned counsel appearing on behalf of the State submitted
there was a clear motive for throwing acid on the victims while they sleeping
at the residence. Appellant had threatened her prior to the incident if she
would not marry him, he would disfigure her in such manner that no man of
the world will marry her and every human being would be frightened to see
her face. Accordingly, they committed the offence when they came to know
that the parents of Sampa Barman had arranged her marriage and date was
fixed on 11.08.2013 for her engagement. Medical evidence showed victims’
suffered injuries by chemical substance like acid. Therefore, their conviction
is correct and requires no interference by this Court. As such appeal is liable
to be dismissed.
Appreciation of Evidence :
11. The proper appreciation of evidence is the heart and soul of criminal
jurisprudence and is necessary for a just and proper adjudication of the case
in hand. Now, let me start the scanning of evidences of P.Ws. in seriatim.
At the very outset, I would like to say on perusal of the entire evidence
it reveals P.W.s 1 (Complainant, Pampa Barman), 3 (Pramila Barman,
mother of victim Sampa Barman), 4 (Rabindra Nath Barman, father of victim
Sampa Barman), 5 (Madan Barman, father of another victim Swastika
Barman) and 6 (Swapan Barman uncle of victim Sampa Barman) were
declared hostile by the prosecution.
12. P.W. 2 the victim girl narrated the incident that on the said night she
was sleeping along with her niece Sastika (daughter of P.W. 1) on the floor of
a room. All on a sudden she woke up feeling burning sensation on her face
and two hands. Minor Sastika also sustained burn injuries on her belly and
legs. They cried out. At that time her mother switched on the light of their
room. Soon thereafter her father, mother and uncle rushed to the
Janubasan BPHC along with them for treatment and therefrom, both were
referred to Tamluk District Hospital. Minor Sastika was admitted in Tamluk
hospital for 12 days. She further deposed that she knew the appellant and
his friend. Prior to the date of incident, appellant and his friend were
causing disturbance and teasing them on the way to their school. Jiten
Barman expressed that he loved her and wanted to marry her. Accordingly,
she entertained belief that both were involving in the said incident.
13. P.W. 7, the another victim also deposed in her evidence that she was
sleeping in their house. At that time she sustained burn injury from acid in
the house of her maternal uncle. She also corroborated that her massi
namely Sampa Barman also sustained burn injuries from acid. She was
treated in the hospital and had sustained burn injury on her belly. But she
failed to identify the appellant and another convict in court. During cross
examination she admitted that she suspected that Jiten Barman and Gajen
Jana committed the offence in the said night because they were causing
disturbance and teasing her on the way to school although she admitted
that she never disclosed the fact of disturbance and teasing to her teacher
and other students of her school.
14. P.W.8, doctor attached to District Hospital Tamluk deposed that on
11.08.2013 she was posted as surgeon of Purba Medinipur District Hospital,
Tamluk. One Swastika Barman, 5 years and 4 months was examined by her
and she was admitted in the said hospital under her care. She was referred
from Janubasan BPHC. She was admitted at 3.43 a.m. (night). After
examination of the patient she found chemical burns on about 20 % of the
total body surface area. She was admitted in the hospital and was
discharged on 20.08.2013 at 12.15 p.m. in favourable condition. The injury
of the patient was from acid. On that day one Sampa Barman, aged about
18 years was also examined by her. She was admitted in the said hospital
under her care at 3.40 a.m. and she was referred from Janubasan BPHC.
After examination of said patient she found acid burns about 20 % of the
body surface on the face, chest, right axilla and right leg. She was referred
by her to eye surgeon for her eye problem. Sampa Barman was admitted in
the hospital on 11.08.2013 and she was discharged on 26.08.2013 at 11.00
a.m. in favourable condition. The injury of the patient was from acid. The
documents like BHT of aforesaid two patients were noted in six sheets in her
own handwriting. She knew the handwriting and signature of said doctor Dr.
R.N. Bhanja. BHT for two patients were exhibited & marked as Ext. 4 series
and signatures of the doctor were marked by Ext. 4/1 series.
15. P.W 9, Doctor deposed that he examined two patients namely Sampa
Barman and Swastika Barman. At the time of examination, Sampa Barman
was unconscious and she had injuries on the face, neck and chest by acid
injury. Her burn injury was about 28%. The injury was superficial in nature.
The patient brought with a history of carbolic acid burn thrown by someone
when the patient was sleeping at bed as per statement of patient party. As
per history, the time of occurrence was 1.45 a.m. on 11.08.2013. Time of
examination was at 2.15 a.m. on 11.08.2013. At the time of examination of
Swastika Barman she was semi-conscious and she had injuries of burn on
her abdomen about 18 %. The injury was superficial. The patient brought
with a history of acid burn over abdomen thrown by someone when the
patient was sleeping at bed as per statement given by patient party. As per
history, the time of occurrence was 1.45 a.m. on 11.08.2013. Time of
examination was at 2.15 a.m. on 11.08.2013. The injury reports of Swastika
Barman and Sampa Barman are marked by Ext. 5 and signature of the
doctor is marked by Ext. 5/1. The emergency ticket of Janubasan BPHC
with regard to Swastika Barman is marked as Ext. 6 and the signature of
the doctor is marked as Ext. 6/1. Emergency ticket of Janubasan BPHC
with regard to Sampa Barman is marked as Ext. 7 and the signature of the
doctor is marked as Ext. 7/1. Both patients were referred to Tamluk District
Hospital for better treatment.
16. The investigating officer examined as P.W. 12. He deposed that on
11.08.2013 he was posted at P.S. Tamluk as S.I. On that day, he was
entrusted by the then Officer-in-Charge Arun Kr. Khan to cause
investigation of Tamluk P.S. Case No. 338 dated 11.08.2013 under Section
450/326A/307 of the I.P.C. against the accused persons Jiten Barman and
Gajen Jana. He identified the handwriting and signature of the Officer-in-
Charge Arun Kr. Khan appearing in the formal FIR marked as Ext. 9 and
Ext. 9/1 respectively. He visited the place of occurrence and prepared the
rough sketch map and index. The said sketch map and index are marked by
Ext. 10 and 10/1 respectively. During the course of investigation, he
examined witnesses, namely, Pramila Barman, Rabindra Nath Barman,
Madan Barman, Swapan Barman, victim girl Sampa Barman, Dr. Basudeb
Das, Dr. Tridibesh Banerjee and Pamba Barman and recorded their
statements under Section 161 Cr.P.C. He also seized bottle of carbolic acid
of 100 ml with little acid, one mosquito net of parrot green colour, one pillow
with cover (Gerua colour) with smell of carbolic acid, one green coloured top
of Churidar and the lower part of one violet coloured churidar after preparing
seizure list marked as Ext. 11 and signature on the seizure list was marked
as Ext. 11/1. He also collected the injury report from Janubasan BPHC and
bed head ticket from Tamluk District Hospital. The said documents were
marked by Exhibits 4, 4/1, 5, 5/1, 6, 6/1, 7 and 7/1. He also collected call
details from the suspect’s mobile phones. The call details report containing
18 pages marked as Ext. 12. He also recorded the statement of the father
under Section 164 of the Cr.P.C. In the mean time, he was transferred on
20.12.2013 and for that, incomplete C.D. was handed over to the Officer-in-
Charge for further investigation. The said incomplete investigation was
handed over by the Officer-in-Charge, Tamluk P.S. to the 2nd investigating
officer (P.W. 11) for further investigation.
17. P.W. 11 deposed after receiving the C.D, at first, he had gone through
the written complaint , FIR , papers and documents those were available and
collected by erstwhile investigating officer namely S.I. Swapan Chabri. In
course of investigation, he arrested one accused namely Gajen Jana from
Kaktia on 14.05.2014 and thereafter he was forwarded before the learned
C.J.M., Tamluk. Another accused Jiten Barman surrendered before the
learned C.J.M. on 26.05.2014. After completion of investigation he
submitted charge sheet under Section 450/326A/307/34 of the I.P.C.
against both the accused persons namely, Jiten Barman and Gajen Jana
after consultation with the superior officer.
18. From the perusal of the evidence of hostile witnesses i.e. P.W. 1 this
Court finds she deposed that the incident occurred at about 1 a.m. (night) in
her father’s house at Kaktiya. She was informed about the incident by her
mother over phone. Thereafter, at about 2 a.m. (night) she went to her
father’s house at Kaktiya i.e. place of occurrence. P.W. 1 was told by her
mother after hearing a screaming sound she found that Sampa i.e. her sister
and Sastika, her daughter who were sleeping on the floor of the room had
sustained injuries on their face and belly respectively. She further stated she
lodged a written complaint against the appellant and Gajen Jana. Though
she admitted in her examination that she knew Gajen Jana and Jiten
Barman prior to the date of the incident, she could not identify the
appellant. She identified her signature appearing in the seizure list as a
witness.
19. P.W. 3 Pramila Barman deposed that victims were sleeping in her
house. That night her husband, her daughter Sampa Barman, her grand-
daughter Sastika Barman were sleeping with her in the same room. She
disclosed that she and her husband were sleeping on a Khat (cot). Her
daughter Sampa and grand-daughter Sastika were sleeping on the floor of
the room. At about 2 a.m., her daughter Sampa raised a hue and cry. She
was crying as she had sustained acid injuries on her face and body. Her
grand-daughter Sastika also sustained acid burn injury on her belly. Soon
thereafter, Sastika and Sampa were taken to Nonakuri BPHC. The doctors of
said BPHC referred them to the District Hospital, Tamluk. Both were in
hospital for 20 days. She failed to identify the appellant and the other
convict Gajen Jana in Court. She deposed she was never interrogated by the
police over the incident.
20. P.Ws. 4, 5 and 6 also deposed in similar lines as P.W. 3 and
were unable to identify the appellant and Gajen Jana.
21. Upon careful perusal of the evidence and judgment delivered by the
trial Court, I find the trial Court had relied on the version of witnesses
mainly victims as well as doctors who were examined as P.Ws. 2, 7, 8 and 9.
Most of the witnesses had turned hostile.
Even the family members of victims who were present at the place of
occurrence did not support the case of the prosecution.
Prosecution case is required to be proved by leading cogent, reliable
and credible evidence. From the entire evidence, none of the witnesses could
identify the appellant and co-accused as the miscreants. So, this case is not
based on direct evidence. Let me see whether the prosecution case may be
sustained to on circumstantial evidence.
It is well settled that in a case resting on circumstantial evidence, the
circumstances put forward must be satisfactorily proved and those
circumstances should be consistent only with the hypothesis of the guilt of
the accused.
In Hanumant Govind Nargundkar and Anr. V. State of Madhya
Pradesh1, it was observed that:
"It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should be in the first
instance be fully established and all the facts so established
should be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it
must be such s to show that within all human probability the
act must have been done by the accused."
In a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra2, while dealing with circumstantial evidence, it has been held
that onus is on the prosecution to prove that the chain is complete and the
infirmity or lacuna in prosecution cannot be cured by false defence or plea.
The conditions precedent in the words of this Court, before conviction could
be based on circumstantial evidence, must be fully established. They are:
“the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned `must' or `should' and not `may be'
established;
the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis except
that the accused is guilty;
the circumstances should be of a conclusive nature
and tendency;
they should exclude every possible hypothesis
except the one to be proved; and
there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.”
These aspects were also highlighted in State of Rajasthan v. Raja
Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
In Padla Veera Reddy V. State of A.P.3, it was laid down that when a
case rests upon circumstantial evidence, such evidence must satisfy the
following tests:
“(1) the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) The circumstances, taken cumulatively, should for a chain
so complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused and
none else; and
(4) The circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis then that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence.”
In the instant case, only two circumstances have been proved by the
prosecution.
Firstly, Victims suffered acid burn injuries. This is corroborated by
medical documents and evidence of Doctors who treated them; and
Secondly , Jiten Barman and his friend Shri Gajen Jana used to tease
victim Sampa Barman in various manner while going to school on the road.
Jiten Barman had proposed Sampa Barman for marriage. As she did not
accept his proposal, Jiten Barman used to tell her she did not marry him he
would make her so ugly so that no man of the world would marry her and
also said that every human being would be frightened by her face.
No other evidence is brought on record. None of the witnesses deposed
they had seen the appellants at the place of occurrence. Even there are
contradictory versions about the actual place of occurrence. P.W. 2 stated
they were sleeping on the floor of the room whereas P.W. 9, doctor stated
they were sleeping on the bed as per statement given by patient party.
Prosecution had declared P.Ws. 1, 3, 4, 5 and 6 as hostile witnesses. Hostile
witnesses while supporting substantial portions of the prosecution case
failed to identify the appellant in dock.
Victim girls could not state who threw acid on their persons at night in
their house, while sleeping. None of the family members, who were very
much present in the house, neighbours or persons of the surrounding
locality have seen the appellant together or committing offence on the date of
the fateful night.
I am fully convinced with the arguments of the learned Advocate
though the victims suffered acid burn injuries but who is actual culprit is
not brought on record by the prosecution. The victim P.W. 7 failed to identify
the appellant. During cross examination she admitted that she suspected
that Jiten Barman and Gajen Jana committed the offence in the said night
because they were causing disturbance and teasing her on the way to school
although she admitted that she never disclosed the fact of disturbance and
teasing to her teacher and other students of her school.
Another victim girl examined as P.W. 2 deposed prior to the date of
incident, appellant and his friend were causing disturbance and teasing
them on the way to their school. Jiten Barman expressed that he loved her
and wanted to marry her. Accordingly, she has formed belief that both were
involving in the said incident. Both victims had not seen the appellant or
his friend at the place of incident or in and around of their house or
throwing acid on them. How appellant and his friend entered the room at
night where the victims were sleeping and how they threw acid on them is
not clear from the prosecution witnesses. Their suspicion or belief do not
constitute proof.
On the basis of suspicious circumstances, appellant cannot be held
guilty. Suspicion, howsoever high, cannot take the place of proof of guilt.
Accordingly, appellant is entitled to the benefit of doubt and ought to be
acquitted.
Therefore, I find that prosecution failed to bring home the charges
against the appellant beyond the reasonable doubts either by direct or
circumstantial evidence.
22. The impugned judgment and order of conviction and sentence is, thus,
set aside.
23. The appellant is acquitted of the offence levelled against him.
24. Another convict, Gajen Jana, did not file appeal against the same self-
judgment. However, he stands on the same footing with the appellant.
Hence, in the interest of justice, he ought to be extended the same relief and
acquitted of the charge levelled against him in view of the law declared in
Sahadevan & Anr. Vs. State of Tamil Nadu4 and Md. Sajjad Vs. State of
West Bengal5 as such he is also acquitted of the offence in view of the
aforesaid judgments.
25. Accordingly, the appeal is allowed.
26. Appellant as well as co-convict Gajen Jana shall be set at liberty
forthwith if they are not wanted in any other case, upon execution of a bond
to the satisfaction of the Trial Court which shall remain in force for a period
of six months in terms of Section 437A of the Code of Criminal Procedure.
27. Lower Court records along with a copy of judgment be sent down at
once to the Learned Trial Court for necessary action.
28. Photostat certified copy of this judgment, if applied for, be given to the
parties on priority basis on compliance of all formalities.
I Agree.
|
Suspicion, howsoever high, cannot take the place of proof of guilt, observed the Calcutta High Court recently while acquitting two persons convicted by the trial court in an acid attack case [Jiten Barman v. The State of West Bengal].
A Bench of Justices Joymalya Bagchi and Ajay Kumar Gupta made the observation while overturning a 2015 trial court conviction in the case against two men.
"On the basis of suspicious circumstances, appellant cannot be held guilty. Suspicion, howsoever high, cannot take the place of proof of guilt. Accordingly, appellant is entitled to the benefit of doubt and ought to be acquitted," the Court said.
The case dated back to 2013, when two girls aged about 18 years and 5 years old, who were the sister and daughter of the informant respectively, were attacked with acid in their house at night.
Two men alleged to have had teased the informant's sister earlier were accused of the crime. As per the informant, her sister had turned down a marriage proposal from one of the accused. In retaliation, the accused allegedly threatened that he would make the girl's condition such that no one else would marry her and that human beings would be frightened by seeing her face, the informant had alleged.
On account of this, her parents had stopped the informant's sister from going to school or on the road, and arranged for her marriage, the Court was further told. The informant claimed that the accused had thrown acid on her sister and daughter on coming to know of her sister's betrothal.
The trial court's conviction in the matter was challenged by one of the accused before the High Court, who pleaded innocence in the case and contended that he had been falsely implicated. The appellant argued that none of the witnesses could explain how the accused could have entered the house at night when the incident took place. There were no eyewitnesses and the trial court had based its conviction on conjectures and surmises alone, the appellant submitted.
The High Court noted that while the trial court had relied on the version of various witnesses to the case, most of the witnesses had turned hostile.
"Even the family members of victims who were present at the place of occurrence did not support the case of the prosecution," the High Court found.
Since the case rested on circumstantial evidence, the circumstances put forth should be consistent only with the hypothesis of the guilt of the accused, the Court observed. However, in this case, the High Court found that contradictory versions of the incident, as well as hostile witnesses, marred the prosecution's case.
"I am fully convinced with the arguments of the learned Advocate though the victims suffered acid burn injuries but who is actual culprit is not brought on record by the prosecution," the Court concluded.
The Court further pointed out that the suspicions of the prosecution in the matter is not sufficient to incriminate the accused.
"How appellant and his friend entered the room at night where the victims were sleeping and how they threw acid on them is not clear from the prosecution witnesses. Their suspicion or belief do not constitute proof," the Court said.
Therefore, the High Court acquitted the appellant. The benefit of this acquittal was also extended by the Court to the co-accused who had not challenged the trial court order.
"... he stands on the same footing with the appellant. Hence, in the interest of justice, he ought to be extended the same relief and acquitted of the charge levelled against him in view of the law declared in Sahadevan & Anr. Vs. State of Tamil Nadu and Md. Sajjad Vs. State of West Bengal." the Court observed.
Advocate Amitabha Karmakar appeared for the appellant. The State was represented by Advocates Parthapratim Das and Manasi Roy.
|
Appeal No. 543 of 1962.
Appeal from the judgement and order dated November 26, 1959 of the Punjab High Court in Civil Writ No. 678 1957.
Bishan Narain and N. N. Keswani, for the appellant.
B. K. Khanna and B. R. G. K. Achar, for respondent Nos. 1 to 3.
D. N. Mukherjee, for respondent No. 4.
R. V. section Mani and T. R. V. Sastri, for respondent No. 5.
March 12, 1964.
The Judgment of the Court was delivered by AYYANGAR, J.
This is an appeal on a certificate of fitness granted under article 133 by the High Court of Punjab against the order of that Court dismissing the appellant 's petition to it under article 226 of the Constitution.
The point in controversy lies within a narrow compass and hence of the voluminous facts we propose to set out only those which are relevant for appreciating the contentions urged before us.
The father of the appellant owned con siderable agricultural property in Pakistan and he with the members of his family moved over to India on partition.
The appellant 's father was allotted a considerable extent of land in village Kharar, District Ambala, but we are not concerned with that.
He had still some unsatisfied claim for allotment and on December 29, 1955 he was allotted by the Managing Officer on quasi permanent tenure Khasra Nos. 880, 881 and 882 which were within the municipal area of Kharar with the regularity of which allotment alone this appeal is concerned.
It may be mentioned that the appellant 's father had died in 1952 and the allotment made was actually to the appellant in lieu of the claim of his father.
On the allotment being made, a sanad was issued to the appellant on December 31, 1955 by the Managing Officer.
When the appellant tried to take possession of these lands, disputes were raised by respondent& L/P (D) ISCI 7 . . 194 Nos. 4 and 5.
They were not displaced persons but they claimed that they had been in possession of this property from a long anterior date from which they could not be disturbed and also that the property could not be the subject of a valid allotment.
These respondents moved the Assistant Settlement Commissioner for cancellation of the allotment and this appeal was allowed by the officer who found that the land comprised in these three khasra numbers were within an " urban area" within the meaning of r. 2(h) of the Displaced Persons Compensation and Rehabilitation Rules, 1955 and consequently that the allotment to the appellant was contrary to law.
He, therefore, cancelled the allotment.
The appellant thereafter applied to the Chief Settlement Commissioner in revision and not being successful there moved the High Court by a, petition under articles 226 and 227 of the Constitution.
As stated earlier, this petition was dismissed and it is the correctness of this dismissal that is challenged in the appeal before us.
Mr. Bishan Narain, learned Counsel for the appellant urged in the main two contentions in support of the appeal.
The first was (1) that after the Managing Officer granted a sanad on December 31, 1955 in the name of the President of India, the appellant obtained an indefeasible title to the property and that this title could not be displaced except on grounds contained in the sanad itself even in the event of the order of allotment being set aside on appeal or revision.
We have considered this point in Shri Mithoo Shahani and Ors.
vs The Union of India and Ors.(1) which was pronounced on March 10, 1964 and for the reasons there stated this submission has to be rejected.
The second point that he urged was, and this was in fact the main contention raised before the High Court, that rule 2(h) of the Displaced Persons Compensation and Rehabilitation Rules, 1955 was unconstitutional as contravening article 14 of the Constitution and so the original allotment to the appellant must be held to be lawful.
We consider that there is no substance in this argument.
In fact, we are unable to appreciate the ground on which the contention is being urged.
Section 40 of the enables the Central Government by Notification in the Official Gazette to make rules to carry out the purposes of the Act, and in particular on an elaborately enumerated list of matters.
It was not suggested that the rules of 1955 were not competently made under section 40.
These rules were published on May 21, 1955 when they came into force.
Rule 2(h) the validity of which is impugned in these proceedings is a rule containing the definitions.
Rule 2(h) reads, to extract what is material: (1) ; 195 "2.
In these rules, unless the context otherwise requires (a) to (g). . . . . . (h) 'Urban area ' means any area within the limits of a corporation, a municipal committee, a notified area committee, a town area committee, a small town committee, a cantonment or any other area notified as such by the Central Government from time to time; Provided that in the case of the quasi perma nent allotment of rural agricultural lands already made in the States of Punjab and Patiala and East Punjab States Union, the limits of an urban area shall be as they existed on the 15th August, 1947.
" The words 'of rural agricultural lands ' occurring in the proviso to this rule were replaced by an amending Notifica tion of 1957 by the words 'in rural area ', but this amendment is obviously of no significance.
"Rural area" is defined by rule 2(f) to mean 'any area which is not an urban area '.
Pausing here, it would be useful to state two matters which are not in dispute: (1) that the allotment to the appellant was made on December 29, 1955, the sanad being issued two days later.
It was therefore an allotment which was made after May 21, 1955 when the rules came into force; (2) the other matter is that Khasra Nos. 880, 881 and 882 were included in urban limits on February 10, 1951 by the municipal area of Kharar being extended to cover these plots.
It would, therefore, be obvious that on the date when the allotment was made, the allotted land was in an "urban area" and therefore it could not have been validly allotted.
We must confess our inability to comprehend what precisely was the discrimination which the rule enacted which rendered it unconstitutional as violative of article 14.
So far as we could understand the submission, the unreasonable discri mination was said to exist because of the operation of the proviso.
Under the proviso in regard to quasipermanent allotments 'already made, i.e. made before May 21, 1955 in the States of Punjab and PEPSU, the test of what was to be considered an "urban area" was to be determined on the basis of the state of circumstances which obtained on 15th August, 1947.
The allotment in favour of the appellant was after the rules came into force and was not one "already made".
Therefore if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and so could not have been validly made and that was the reason why it was set L, P(D) 1 SCI , (a). 196 aside.
The discrimination is said to consist in the rule having drawn a dividing line at the date when it came into force, or determining whether the allotment was valid or not.
It is the discrimination that is said to be involved in this prospective operation of the rule that we find it difficult to appreciate.
It is possible that before the rules were framed the land now in dispute could have been allotted, but because of this it is not possible to suggest that the rule altering the law in this respect which ex concessis is within the rule making power under the Act, is invalid.
Such a contention is patently self contradictory.
Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alteration An the law.
It is sometimes possible to plead injustice it ', a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which we are unable to follow.
There are no merits in this appeal which fails and is dis missed with costs.
Appeal dismissed.
|
The father of the appellant owned considerable agricultural property in Pakistan and he with the members of his family moved over to India on partition.
The appellant 's father had some unsatisfied claim for allotment and on December 29.
1955 he was allotted some plots in Urban area within a certain municipality.
The appellant 's father died in 1952 and the allotment made was actually to the appellant in lieu of the claim of his father.
On the allotment being made, a sanad was issued to the appellant by the Managing Officer.
When the appellant tried to take possession of these lands, disputes were raised by respondents Nos. 4 and 5.
These respondents moved the Assistant Settlement Commissioner for cancellation of the allotment on the ground that these disputed plots were within an "urban area" within the meaning of r. 2(h) of the Displaced Persons, Compensation and Rehabilitation Rules, 1955 and, therefore, the allotment to the appellant was contrary to law.
The Assistant Settlement Commissioner accepted the contention of the res pondents and allowed the appeal and cancelled the allotment.
The appellant then applied to the Chief Settlement Com missioner in revision.
He rejected the petition.
Then the appellant moved a petition under articles 226 and 227 of the Constitution before the High Court.
This petition was also dismissed.
the High Court granted certificate of fitness under article 133 of the Constitution and hence the appeal.
Held:(i) Where an order making an allotment was set aside by the Assistant Commissioner or Settlement Commissioner the title which was obtained on the basis of the continuance of that sanad or order also fell with it.
Shri Mithoo Shahani vs Union of India, ; , relied on.
(ii)The contention of the appellant that r. 2(h) of the Displaced Persons Compensation and Rehabilitation Rules, 1955, was unconstitutional as contravening article 14 of the Constitution must fail.
This contention is based on the basis of the proviso to Rule 2(h).
Rule 2(h) was framed under section 40 of the Act.
This rule along with other rules came into force on May 21, 1955.
The allotment was made to the appellant on December 29, 1955 and the Sanad was issued two days later.
In other words the allotment in favour of the appellant was after the rule came into force and was not one "already made" as stated in the proviso to r. 2(h).
Therefore, if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and the proviso, had no application.
193 The discrimination is said to consist in the rule having drawn a dividing line at the date when it came into force, for determining whether the allotment was valid or not.
Such a contention is patently self contradictory.
Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alternation in the law.
It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which cannot be accepted.
|
Petition Nos.
1483, 1494 and 1544 of 1986 etc.
Under Article 32 of the Constitution of India.
Dr: Y.S. Chitale, Satish Chandra, P.K. Banerjee, S.N. Kacker, K.C. Agarawal, S.S. Rathore, L.K. Garg, M.K.D. Namboodiary, P.M. Amin, Ashok Grover, Bulchandani, M.N. Shroff, P.H. Parekh and Sohail Dutt for the Petitioners.
K. Parasaran, Attorney Genera1, G. Ramaswamy Additional Solicitor General, G. Subramaniam, A.S. Rao, Ms. Relan and P.P. Parmeshwaran for the Respondents.
R.S. Nariman, (Indo Afghan Chamber of Commerce).
Kapil Sibal, (M/s Raj Prakash Chemicals) and Rajiv Dutta for the Interveners.
The Judgment of the Court Was delivered by SABYASACHI MUKHARJI, J.
Writ Petition No. 1483 Of 1986 is directed.
against 'the Show Cause Notices dated 21st August, 1986, 11th September, 1986 and 26th September, 1986 issued to the petitioners Messrs.D. Navinchandra & Company, a partnership firm and Dilip Kumar Dalpatlal Mehta, a part ner 'of the said firm.
In order to 'appreCiate this chal lenge;, it is necessary to refer to certain facts.
This petition raises the question of the rights of the petition ers and 993 other diamond exporters who were entitled to export house certificates and additional licences under import policy of 1978 79 and who were granted the same pursuant to the judg ment and 'order of this Court dated 18th April,1985.
As we shall explain later, there is no conflict With this decision of a Bench which consisted of a bench of three judges and the subsequent decisions of this Court which We.
Shall presently refer.
It is necessary also that in order to make out.
a case, the petitioners have sought to emphasise on the point that the decision dated 18th April, 1985 was a deci sion of three learned Judges, in Order to spin out a case of some sort of conflict with this decision and certain subse quent decisions of this Court consisting of benches of two ' learned judges.
It appears that the import policy issued by the Government of India for the year 1978 79 by paragraph 176 provided for, additional licences.
On 29th April, 1979, the first petitioner, a diamond exporters, was refused Export House Certificate.
The said.
petitioner filed a writ petition before the High Court of Bombay.
being Misc.
peti tion No. 1293/1979.
By his order and judgment, Pendse , J. made the rule absolute holding that canalised items were not banned items, and there was no reason why the first peti tioner should not be compel " led to approach the canalising agency for import of the same.
On 7th April, 1983, the Delhi High Court delivered a judgment in Civil writ Petition No. 1501 of 1981 (which for the sake of convenience, the party has chosen to describe as Rajnikant Bros. & Ors.
case allow ing the diamond exporters the same and holding that merely Canalising an item could not be regarded as import of that item being absolutely banned.
Against` these judgments special leave petitions were filed in this Court, Appeal was also filed on 27th March.
1984 by the Import Control Authorities and Union of India against the judgment dated 11th November, 1983 mentioned hereinbefore passed by Pendse, J. and the said appeal as dismissed on that date.
Against the ' same, the, Export Control authorities and Union of India filed special leave petition No. 7190 Of 1984 in this Court.
Similar special leave petitions were filed in this Court against similar judgments of the Bombay High Court.
On 18th April, 1985, by a common judgment, the special leave.
petitions were disposed of.
As much has been made out 'of this judgment and order, it is necessary to refer to the same.
The matter was disposed of by the order in Civil Appeal No, 1423 of 1984 ' by a bench consisting Fazal Ali, J., Varadarajan, J. and one of us (Sabyasachi Mukharji, J.).
It was held by the said order that there was no requirement of diversification of exports as a condition for the grant of Export 994 House Certificate in the Import Policy for 1978 79.
There fore, while confirming the High Court 's judgment, quashing the order impugned in the writ petitions in the High Court, this Court directed the appellants namely Union of India and Import Control authorities to issue necessary Export House Certificates for the year 1978 79.
It was further directed that Export House Certificates should be granted within three months from that date.
The order stated that 'save and except items which are specifically banned under the preva lent import policy at the time of import, the respondents shall be entitled to import all other items whether cana lised or otherwise in accordance with the relevant rules '.
The appeals were disposed of accordingly with no order as to costs.
Pursuant to the aforesaid order, on 29th July, 1985, import licence was issued, it is claimed, to the first petitioner.
of the c.i.f. value of Rs.71,15,900.
Pursuant to the said import licence, the first petitioner imported several consignments of items failing either under Appendix 3 (List of Limited Permissible Items), Appendix 2B (List of Restricted Items) or Appendix 5 (Canalised Items).
According to the petitioner, in the matter of clearance of such con signments different standards were applied by the Custom authorities.
On 18th October, 1985, in special leave petition No. 11843 of 1985 In the case of Raj Prakash Chemicals Ltd. vs Union of India this Court directed that Acrylic Ester Mono mors would not be permitted to be cleared until further orders unless they had already been cleared.
Similarly, on 31st January, 1986, interim order was passed in the case of M/s Indo Afghan Chambers of Commerce vs Union of India (Writ Petition No. 199 of 1986) directing that Dry Fruits in respect of which Custom clearance had been obtained till 30th January, 1986 would be allowed to be cleared and no clearance of Dry fruits from 31st January, 1986 onwards would be made by the Custom authorities until further or ders.
On 5th March, 1986, judgment was delivered in the case of Raj Prakash Chemicals Ltd. and Another vs Union of India and Others, by a bench consisting of three learned Judges Tulzapurkar, J. and two of us (R.S. Pathak, J. as the Chief Justice then was, and Sabyasachi Mukharji, J.).
This Court held that additional licence holders were entitled to import items permissible to Export Houses under Import Policy 1978 79 excluding those items which fell in Appendix 3 (List of Banned Items) of the Import Policy 1985 88.
This Court observed that diamond exporters who were granted Addi 995 tional Licences had formed a bona fide belief that they could import all the items accessible to them under Open General Licence under the Import Policy of 1978 79 except those placed in Appendix 2 Part A of the Banned List under the Import Policy 1985 88.
This belief was formed on the basis of consistent orders of the High Courts and consistent manner in which Import Control authorities construed those orders.
In view of such a belief, it was further held by this Court, in the interest of broad principles of justice, equity and fair play and to avoid undeserved hardship, without going to the legal technicalities that those diamond exporters who were granted Additional Licences under the Import Policy 1978 79 and had opened and established irrevo cable letters of credit before 18th October, 1985 i.e. the date on which the interim order was passed by this Court in Raj Prakash 's case as mentioned hereinbefore, should be permitted, notwithstanding the construction placed by this Court on the order dated 18th April, 1985 of this Court, to clear the goods imported, or to be imported by them pursuant to such irrevocable letters of credit.
In other words, all imports effected pursuant to such letters of credit should be deemed to have been legally and properly made, and should entail no adverse consequences whatsoever.
This Court fur ther reiterated that the Court must be presumed to have given effect to law That presumption can be rebutted only upon evidence showing a clear intention to the contrary, either expressly or by necessary implication.
This Court noted that the order dated 18th April, 1985 which we have set out hereinbefore used the expression "specifically banned" and the controversy before this Court in Raj Pra kash 's case was on the meaning of the expression 'specifi cally banned ' and the controversy between the parties cen tered round the meaning of the words 'specifically banned '.
It was mentioned that Appendix 3 is the list of items which could not be imported by an Export House on additional licence, it was a ban with reference to the category of importers.
Appendix 4 is the list of items which could not be imported by anyone whosoever.
This Court, therefore, was of the view that when regard is had to the Import Policy 1984 85, reference must necessarily be made to the corre sponding Appendix 3, formerly described as the List of Banned Items and now described as the List of Limited Per missible Items, and Appendix 2 Part A which is now the list of Banned Items replacing Appendix 4 (List of Absolutely Banned Items).
In other words, said the Court, the Addition al Licences to be issued to diamond exporters entitled them to import items permissible to Export Houses under such licence under the Import Policy 1978 79 excluding those items which fell within Appendices 3 and 4 of the Import Policy 1978 79 and also excluding items which fell in Appen dix 3 and Appendix 2 Part A of the Import This Court was of the view that this is the meaning which must be given to the terms of the order dated 18th April, 1985.
This Court noted that when this Court made the previous order on 18th April, 1985 when the Import Policy of 1985 88 was in force.
there were only two items which were absolutely banned.
and these were animal tallow and animal cannot.
That was also Substantially the position under the Import Policy 1984 85.
This Court was of the view that in the Import Policies of 1984 85 and 1985 88 the items open to import under Open General Licence were then set forth, when Raj Prakash 's judgment was delivered i.e. in Appendix 6.
A perusal of Part I1 of List 8 in Appendix 6 indicated that it enumerated in fairly long detail the items allowed to be imported by the Export Houses holding Additional Licences for sale of those items to eligible Actual Users (Industrial) subject to Actual User conditions.
That was the entitlement of the holder of an Additional Licence under paragraph 265(4) of the Import Policy 1985 88.
It is necessary to set out in detail the aforesaid judgment and also to refer to the order of 18th April.
1985 to emphasise that whether non canalised items could be imported directly.
and not through canalised agency, was not in issue in either of these two cases.
nor decided or adju dicated upon.
In the judgment in Raj Prakash 's case (supra), it was held that Additional Licence holders were entitled to import items permissible to Export Houses under the Import Policy 1978 79 excluding those items which fell in Appendix 3 (list of banned items) of the Import Policy 1985 88.
On 17th March, 1986, letter was written by the Joint Chief Controller of Imports to Messrs. B. Vijay Kumar and Co. stating that against Additional Licences issued in terms of this Court 's Order dated 18th April, 1985, import of items permissible against Additional Licences in terms of Policy for 1978 79 would be allowed even if such items were in the list of canalised items in Policy for 1978 79.
On 3rd April, 1986, there was a meeting with Member of C.B.E.C. and Principal Collector where the minutes recorded that items which were under O.G.L. during 1978 79 and subse quently canalised in Policy for 1985 88 would be allowed to be imported.
On 23rd April, 1986, a circular was issued from the Under Secretary to the Government of India to port authorities stating that canalised items 997 were not covered within the purview of this Court 's decision in Raj Prakash 's case and Additional Licence holders would be allowed to import canalised item.
By a letter on 14/15th May, 1986 from Principal Collector to Chairman, Western Region, Federation of Indian Export Organisation, the matter had been clarified and clearance of canalised items against Additional Licences was unconditionally allowed.
This Court again dealt with the question in the case of M/s Indo Afghan Chambers of Commerce and Another etc.
vs Union of India and Other etc., [1986] 3 SCC 352.
In that decision two of us (R.S. Pathak, J. as the learned Chief Justice then was and Sabyasachi Mukharji, J.) were parties.
It was held that under the import policy of 1978 79 dry fruits (exclud ing cashewnuts) could be imported by all persons under the Open General Licence.
There was no need to obtain any Addi tional Licence for importing items in the year 1978 79 and therefore, the wrongful denial of Additional Licences to diamond exporters in the year 1978 79, could not justify any restitution subsequently in regard to the import of dry fruits (other than cashewnuts).
It was further observed that under the Import Policy 1985 88, dry fruits (excluding cashewnuts and dates) were no longer open to import under the Open General Licence.
The sanction for importing them must be found under some other provision of the Import Policy.
The diamond exporters, it was held, ' could not be regarded as dealers engaged in the trade of stocking and selling dry fruits (excluding cashewnuts and dates).
They were, therefore, not entitled to the advantage of paragraph 181 (3) of the Import Policy 1985 88.
Dry fruits, it was further held, must be regarded as consumer goods of agricul tural origin.
The words "agricultural origin" in Item 121 of Appendix 2 Part B are used in the broadest sense.
The words 'consumer goods ' in item 121 referred to dry fruits imported for supply to Actual Users (Industrial).
It was further held that dry fruits do not appear in Appendix 3 Part A and 5 nor can be imported under the Open General Licence under the Import Policy 1985 88, Inasmuch as they fail within Item 121 of Appendix 2 part B they are excluded from the scope of Item 1 of Appendix 6, and cannot be imported as raw materi als and consumables for sale to Actual Users (Industrial).
Appendix 2 Part B (List of Restricted Items) was also suc cessor of Appendix 4 (List of Absolutely Banned Items) under the Import Policy 1978 79.
This Court reiterated, and it was important to emphasise, that On the reasoning which found favour with this Court in Raj Prakash 's case, it must be held that diamond exporters holding Additional Licences were not entitled to import goods enumerated in Appendix 2 Part B of the Import Policy 1985 88.
As held in that case, holders of Additional Licences were 998 entitled to import only those goods which were included in Appendix 6 Part 2 List 8 of the Import Policy 1985 88.
Dry fruits were not included in that list and therefore they could not be imported under Additional Licences.
It is stated that on 20th May, 1986, there was an order of adjudication in respect of one consignment of the first petitioner in this case i.e. Messrs. D. Navinchandra & Co. of items falling in Appendix 2B (List of Restricted Items) ( 10 Bills of Entry) imposing fine aggregating to Rs.45,000.
Then on 21st August, 1986, a show cause notice was issued to the first petitioner in this petition in respect of consign ment falling in Appendix 5 (Canalised Items) of the Policy for 1985 88.
Reply was duly given on 9th September, 1986 and a show cause notice was issued on 11th September, 1986 to the first petitioner in respect of one consignment falling in Appendix 2B (List of Restricted Items) of Policy for 1985 88.
In the meantime, this Court had occasion to examine some passage of this decision.
This question was examined and it is necessary to refer to the said two subsequent decisions of this Court.
The first one is the decision in Union of India vs Godrej Soaps Pvt. Ltd. and Another, ; and the second one is the decision in M/s Star Diamond Co. India vs Union of India and Others, ; It is neces sary first to refer to Godrej Soaps ' case.
It was held that a diamond exporter could import the items he was entitled to import under the Import Policy 1978 79 provided they were importable also under the Import Policy ruling at the time of import.
These are items which are open to import by an Export House holding an Additional Licence for sale to eligible Actual Users (Industrial).
These are items which could be directly imported, for example, the items enumerat ed in Part 2 of List 8 of Appendix VI of the Import Policy 1985 88.
These are items which are not 'canalised '. 'Cana lised ' items are those items which are ordinarily open to import only through a public sector agency.
There is, howev er, nothing to prevent an Import Policy from providing in the future that an Export House holding an Additional Li cence can directly import certain canalised items also.
In that event, an Export House holding an Additional Licence would be entitled to import items "whether canalised or otherwise", meaning thereby items open ordinarily to direct import (non canalised items) as well as items directly importable although on the canalised list.
It is in that sense that the Court had intended to define the entitlement of a diamond exporter by using the words "whether canalised or otherwise" in its order dated 18th April, 1985.
999 In that case this Court found that in respect of Palm Kernel Fatty Acid which was a canalised item listed as Item 9(v) in Appendix V Part B of the Import Policy 1985 88, there is no provision in that policy which permitted the import of such item by an Export House holding an Additional Licence.
Therefore, both on grounds of equity and construc tion the claim of the diamond exporters, or, as in that case, a purchaser from the diamond exporter, was held to be not maintainable.
As importation of canalised items, this Court reiterated, directly by holders of additional licences was banned, it should not be construed to have been permit ted by virtue of the order of this Court and the items sought to be imported do not come within List 8 of Part 2 of Appendix 6 of the Import Policy of 1985 88 against addition al licences.
It was found that the goods were purchased by the respondents in that case after they were aware of the position of law as enunciated in Raj Prakash 's case as well as Indo Afghan Chambers of Commerce 's case.
No question of any restitution of rights, therefore, arose.
Goods in ques tion being specially banned goods, these could not be im ported under Item I of Appendix 6 (Import of items under Open General Licence) of Import Policy, 1985 88, more so the import being not by the Actual User (Industrial) but by somebody else from whom the respondent purchased the goods.
This position was reiterated in the case of M/s Star Diamond Co. India vs Union of India and others (supra).
This Court further reiterated that a decision of this Court is binding on all.
To complete the narration of events, reply was given by the first petitioner to the show cause notice dated 11th September, 1986 on 18th September, 1986.
On 26th September, 1986, another show cause notice was issued to the Petitioner in respect of another consignment falling in Appendix 2B (List of Restricted Items) of Policy for 1985 88.
Personal hearing was given to the first peti tioner thereafter.
The petitioner moved this Court under Article 32 of the Constitution, for quashing the show cause notices dated 21st August, 1986, 11th September, 1986 and 26th September, 1986 and the order of adjudication dated 20th May, 1986 and for consequential relief.
We are, however, unable to find any merit in this appli cation either in law or in equity.
1000 One of the points on which an argument was sought to be built up was that the Bench of two judges of this Court in the subsequent decisions had cut down the effect of the decision of this Court dated 18th April, 1985 in the case of Union of India vs Rajnikant Bros.
It has been stated that in subsequent decisions referred to hereinbefore, this Court had deviated and indeed differed from the view expressed in that case.
It was urged that in Rajnikant Bros. case a bench of three judges categorically stated that the respondents would be entitled "to import all other items whether cana lised or otherwise" except those which were specifically banned under the prevalent import policy at the time of import, with the relevant rules.
In our opinion, the subse quent decisions referred to hereinbefore do not take any different or contrary view.
Indeed it gives effect to the letter and spirit of the said decision.
It has to be borne in mind, that the basic background under which the Rajni kant 's decision was rendered, the Export Houses had been refused Export House Certificates because it was insisted that they should have diversified their export and that was a condition for the grant or entitlement of an export house certificate.
It was found and it is common ground now that that was wrong.
Therefore, the wrong was undone.
Those who had been denied Export House Certificates on that wrong ground were put back to the position as far as it could be if that wrong had not been done.
To do so, the Custom au thorities and Govt.
authorities were directed to issue necessary Export House certificates for the year 1978 79 though the order was passed in April, 1985.
This was a measure of restitution, but tile Court, while doing so, ensured that nothing illegal was done.
It is a presumption of law that the courts act lawfully and will not ask any authority to do anything which is illegal.
Therefore, the court directed that except those which were specifically banned under the prevalent import policy at the time of import, the respondents shall be entitled to import all other items whether canalised or not canalised in accordance with the relevant rules.
Analysing the said order, it is apparent, (1) that the importation that was permissible was of goods which were not specifically banned, (2) such ban ning must be under the prevalent import policy at the time of import, and (3) whether items which were canalised or un canalised would be imported in accordance _with the relevant rules.
These conditions had to be fulfilled.
The court never did and could not have said that canalised items could be imported in any manner not permitted nor it could have given a go bye to canalisation policy.
It must be emphasised that in the case of Raj Prakash (supra), this position has been explained by saying that only such items could 1001 be imported by diamond exporters under the Additional Li cences granted to them as could have been imported under the Import Policy of 1978 79.
the period during which the dia mond exporters had applied for Export House Certificates and had been wrongly refused and were also importable under the import policy prevailing at the time of import which in the present case would be during the import policy of 1985 88.
These were the items which had not been 'specifically banned ' under the prevalent import policy.
The items had to pass to two tests.
firstly, they should have been importable under the import policy 1978 79 and secondly they should also have been importable under the import policy 1985 88 in terms of the Order dated 18th April.
1985 and if one may add.
in such terms in accordance with the import rules ' whether canalised or not canalised.
It must be emphasised that in this case also.
the CoUrt had no occasion to consid er the significance of the words 'whether canalised or otherwise ' mentioned in the Order dated 18th April.
1985 because that point did not arise in the case before it.
What did the court then intend by these words used by the court? We have seen that diamond exporters could import the items which they were entitled to import under the Import Policy 1978 79 provided they were importable also under the import policy ruling at the time of import.
These are items which were open to import by Export Houses holding Additional Licences for sale to the Actual Users (Industrial).
These are items which were directly imported, for example, items in Part 2 List 8 of Appendix 6 of Import Policy 1985 88.
These are items which are not canalised.
Canalised items are those items which are ordinarily open to import only through a public sector agency.
Although generally these are import able through public sector agencies, it is permissible for any import policy to provide an exception to the rule and to declare that an importer might import a canalised item directly.
It is in that sense and that sense only that the Court could have intended to define the entitlement of diamond exporters.
They would be entitled to import items which were canalised or not if the import policy prevailing at the time of import permitted them to import items falling under such category.
This was also viewed in that light in the case of Indo Afghan Chambers of Commerce (supra).
It must be emphasised that in the Order dated 18th April, 1985, this Court did not do away with canalisation.
That was not the issue before this Court.
The expression 'whether canalised or not canalised ' was to include both.
This Court did not say that canalised items could be import ed directly by the importers ignoring the canalisation process.
We are of the opinion that this Court did not say that canalisation 1002 could be ignored.
That was not the issue.
High public poli cy, it must be emphasised, is involved in the scheme of canalisation.
This purpose of canalisation was examined by this Court in Daruka & Co. vs Union of India & Ors., ; where the Constitution Bench of this Court ob served that the policies of imports or exports were fash ioned not only with reference to internal or international trade, but also on monetary policy, the development of agriculture and industries and even on the political poli cies of the country and rival theories and views may be held on such policies.
If the Government decided an economic policy that import or export should be by a selected channel or through selected agencies the court would proceed on the assumption that the decision was in the interest of the general public unless the contrary was shown.
Therefore it could not be collaterally altered in the manner suggested.
The policy of canalisation which is a matter of policy of the Government was not given a go bye by the observations referred to in the Order of 18th April, 1985.
Indeed it is possible to read the Order in a manner consistent with canalisation scheme in the way we have indicated.
If that is so, then it should be so read.
When this Court observed that the fact whether items were sought to be imported by diamond merchants were canalised, would not be an impediment to the import directly by them, the Court meant to say that this could be imported directly by them through the canalisation organisation.
The need for canalisation stands on public policy and that need cannot be lightly or inferencially given a go bye.
It should not be presumed that collaterally the court had done away with the system of canalisation based, on sound public policy.
We have found nothing in the different authorities on this subject, which militate against the above views.
Therefore, the action taken by the Custom authorities in issuing adjudication notice and pro ceeding in the manner they did, we are of the opinion that they have not acted illegally or without jurisdiction.
This must proceed in accordance with law as laid down by this Court which, in our opinion, is clear enough.
The fact that in subsequent decision, the petitioner is not a party is not relevant.
Generally legal positions laid down by the court would be binding on all concerned even though Some of them have not been made parties nor were served nor any notice of such proceedings given.
As held in Star Diamond 's case (supra), the meaning of the expression "whether canalised or otherwise" used by this Court in Rajnikant Bros ' case as explained in Godrej Soaps Pvt. Ltd. case and reiterated and followed in the present case is applicable to the present petitioner.
1003 We see no substance in the submission made in the peti tion and reiterated before us in this Court for a reconsid eration of this question by a larger Bench.
In the aforesaid view of the matter, we are unable to sustain the grounds urged in support of this petition.
We are, therefore, of the opinion that proceedings must go in accordance with law.
The government 's understanding of the matter at one point of time is irrelevant.
There are several applications for impleadment.
These are allowed, and they are impleaded.
Their statements are taken on record.
Before parting with this case, certain factors must be noted.
The diamond exporters and dry fruit exporters have their full round in this Court.
Speaking entirely for my self, my conscience protests to me that when thousands remediless wrongs await in the queue for this Court 's inter vention and solution for justice, the petitions at the behest of diamond exporters and dry fruit exporters where large sums are involved should be admitted and disposed of by this Court at such a quick speed.
Neither justice nor equity nor good conscience deserves these applications to be filed or entertained.
There is no equity of restitution against the law declared categorically and repeatedly by this Court and no principle of estoppel involved in these applications.
The Writ petition is dismissed and in the facts and circumstances of this case, we direct that the petitioner must pay cost of this application.
It has been prayed that clear cut date must be fixed where contracts had been entered into and in which letters of credit prior to 15th April, 1986 have been entered into, there should be no prosecution.
It has been further prayed that where however contracts have been entered into but no letters of credit have been opened, such parties should not be penalised in the facts and circumstances of the case.
No direction is necessary by this Court on this aspect.
The authorities concerned will decide the same in taking into consideration all the facts and circumstances and taking into consideration the case of the petitioners and the alleged claim of bona fide on their part.
A submission was made on the principle of promissory estoppel and reliance was placed on the several observations of several cases including the case in Union of India and Others etc.
vs Godfrey Philips India Ltd. etc.
; , It is true that the doctrine of 1004 promissory estoppel is applicable against the Government in the exercise of its government, public or executive func tions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppel.
But in this case no such case of promissory estoppel has been made out.
The intervention applications filed in this connection are allowed and the submissions contrary to what we had stated hereinbefore are rejected.
As the points involved in Writ Petition No. 1494 of 1986 are same, this is also dismissed with costs.
Interim orders, if any, are vacated forthwith.
The proceedings will proceed as expeditiously as possible in accordance with law.
For the same reasons, Writ Petition No. 1544 of 1986 is also dis missed with costs with the same observations.
H.L.C. Petition dis missed.
|
By a common order dated April 18, 1985 in C.A. No. 1423 of 1984, etc., Union of India vs Rajnikant Bros. the Court had directed issue of Export House Certificates and Addi tional Licences to the petitioners and other diamond export ers under the Import Policy 1978 79 stating: "Save and except items which are specifically banned under the preva lent Import Policy at the time of import, the respondents shall be entitled to import all other items whether cana lised or otherwise in accordance with the relevant rules".
The petitioners, who were issued Additional Licences pursu ant to this order, imported several consignments of items falling under Appendices 2B, 3 and 5 of Import Policy, 1985 88, and, while clearing them, the Customs Authorities imposed a fine of Rs.45,000 in respect of certain items failing in Appendix 2B and issued show cause notices in respect of certain other items failing in Appendices 2B and 5.
The petitioners challenge was directed not only against these orders, but extended to certain subsequent decisions of the Court which, according to them, had cut down the effect of the Court 's earlier order dated April 18, 1985 in Union of India vs Rajnikant Bros. Dismissing the petitions, HELD: The decisions rendered subsequent to the decision dated April 18, 1985 in Union of India vs Rajnikant Bros. do not take any different or contrary view.
Indeed, they give effect to the letter and spirit of that decision.
The basic background in which the decision in Union of India vs Rajni kant Bros. was rendered was that Export Houses had been refused Export House Certificates on the ground that they had not diversified their exports.
It was found that was wrong.
The wrong was undone by directing issue of Export House Certificates for 990 the year 1978 79 though the order was passed in April, 1985.
That was a measure of restitution, but the Court, while doing so, ensured that nothing illegal was done.
It is a presumption of law that the courts act lawfully and will not ask any authority to do anything which is illegal.
It was directed that except those items which were specifically banned under the prevalent import policy at the time of import, the respondents therein were entitled to import all other items whether canalised or not canalised in accordance with the relevant rules.
Analysing the said order, it is apparent: (1) that the importation that was permissible was of goods which were not specifically banned, (2) that such banning must be under the prevalent import policy at the time of import.
and (3) whether items which were canalised or uncanalised would be imported in accordance with the relevant rules.
These conditions had to be fulfilled.
The court never did and could not have said that canalised items could be imported in any manner not permitted nor it could have given a go bye to the canalisation policy.
[1000C H] (ii).
In Raj Prakash Chemicals vs Union of India,, it was explained that only such items could be imported by diamond exporters under the Additional Licences granted to them as could have been imported under the Import Policy 1978 79 and were also importable under the Import Policy prevailing at the time of import.
These were the items which had not been 'specifically banned ' under the prevalent Import Policy.
The items had to pass through two tests, firstly, they should have been importable under the Import Policy 1978 79 and, secondly, they should also have been importable under the Import Policy, 1985 88 in terms of the Order dated 18th April, 1985 and if one may add, in such terms 'in accordance with the import rules ' whether cana lised or not canalised.
The Court had no occasion to consid er in that case the significance of the words 'whether canalised or otherwise ' mentioned in the Order dated 18th April, 1985 in Union of India vs Rajnikant Bros., because that point did not arise there.
[1000H; 1001A D] (iii) What did the court then intend by the words 'whet her canalised or otherwise ' used in the order dated 18th April, 1985 in Union of India vs Rajnikant Bros? The diamond exporters could import the items which they were entitled to import under the Import Policy 1978 79 provided they were importable also under the Import Policy ruling at the time of import.
These are items which were open to import by Export Houses holding Additional Licences for Sale to the Actual Users (Industrial).
These are items which were di rectly imported, for example, items in Part II List 8 of Appendix 6 of Import Policy 1985 88.
These are items which are not canalised.
Canalised items are those 991 items which are ordinarily open to import only through a public sector agency.
Although generally these are import able through public sector agencies, it is permissible for any Import Policy to provide an exception to the rule and to declare that an importer might import a canalised item directly.
It is in that sense and that sense only that the Court could have intended to define the entitlement of diamond exporters.
They would be entitled to import items which were canalised or not if the Import Policy prevailing at the time of import permitted them to import items failing under such category.
[1001D G] (iv) In the Order dated 18th April, 1985 in Union of India vs Rajnikant Bros., this Court did not do away with canalisation.
That was not the issue before this Court.
This expression 'whether canalised or not canalised ' was to include both.
This Court did not say that canalised items could be imported directly by the importers ignoring the canalisation process.
High public policy, it must be empha sised, is involved in the scheme of canalisation.
This purpose of canalisation was examined by.this Court in Daruka of this Court observed that the policies of imports or exports were fashioned not only with reference to internal or international trade, but also on monetary policy, the development of agriculture and industries and even on the political policies of the country and rival theories and views may be held on such policies.
If the Government decid ed an economic policy that import or export should be by a selected channel or through selected agencies, the court would proceed on the assumption that the decision was in the interest of the general public unless the contrary was shown.
Therefore, it could not be collaterally altered in the manner suggested.
The policy of canalisation which is a matter of policy of the Government was not given a go bye by the observations referred to in the Order of 18th April, 1985.
Indeed, it is possible to read the Order in a manner consistent with canalisation scheme in the way we have indicated.
If that is so, then it should be so read.
When this Court observed that the fact whether items were sought to be imported by diamond merchants were canalised, would not be an impediment to the import directly by them, the Court meant to say that this could be imported directly by them through the canalisation organisation.
The need for canalisation stands on public policy and that need cannot be lightly or inferentially given a go bye.
It should not be presumed that collaterally the court had done away with the system of canalisation based on sound public policy.
We have found nothing in the different authorities on this subject, which militate against the above views.
Therefore, the action taken by the Customs Authorities in issuing adjudica tion notice and proceeding in 992 the manner they did we are of the opinion that they have not acted illegally or without jurisdiction.
This must proceed in accordance with law as laid down by this Court which, in.
our opinion is clear enough.
The fact that in subsequent decision, the petitioner is not a party is not relevant.
Generally legal positions laid down by the court would be binding on all concerned even though some of them have not been made parties nor were served nor any notice of such proceedings given.
[1001H; 1002A G] Union of India vs Rajnikant Bros., C.A. No. 1423 of 1984 decided on April 18, 1985; Raj Prakash Chemicals Ltd. & Anr.
vs Union of India & Ors.
, ; M/s. Indo Afghan Chambers of Commerce &Anr., etc.
vs Union of India & Ors., etc., [1986] 3 S.C.C. 352; Union of India vs Godrej Soaps Pvt. Ltd. &Anr., ; ; and M/s. Star Diamond Co. India vs Union of India & Ors., [1986] 4 S.C.C. 246, discussed, explained and reiterated.
Daruka & Co. vs Union of India & Ors., ; , referred to.
|
ivil Appeal Nos.
2349 61 of 1988.
From the order dated 8.7.1987 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal Nos.
E/l583 to l589/ 86 A and 1533, 1521, 1528, 1529 31/1986 A and order No. 491 to 503 of 1987.
A.K. Ganguli, Mrs. Indu Malhotra and Mrs. Sushma Suri for the Appellant.
Soli J. Sorabji, M. Chandrasekharan Mrs. V.J. Francis and N.M. Popli for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals are under Section 35L,(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ') directed against the decision of the Customs Excise (Gold) Control Appellate Tribunal, New Delhi, (hereinafter called 'the CEGAT ').
The respondent M/s. Indian oxygen Ltd., Visakhapatnam, are manufacturers of dissolved acetylene gas and campressed oxygen gas (hereinafter called 'the gases ').
The respondent was supplying these gases in cylinders at their factory gate.
For taking delivery of these gases, some consumers/customers used to bring their own cylinders and take the delivery, while others used to have the delivery in the cylinders supplied by the respondent.
For the purpose of such supply of cylinders, certain rentals were charged by the respondent and also to ensure that these cylinders are returned properly, certain amount of deposit used to be taken from the customers.
On those deposits notional interest @ 18% per annum was calculated.
These two amounts with which we are concerned, namely, the rentals of the cylinders and the notional interest earned on the deposit of cylinders, are the subject matters of the dispute herein.
Whether these two amounts were includible in the value under Section 4 of the Act, is the question.
The revenue 's case is that the notional income on deposit of 764 cylinders and the rental are part of the asessable value and, hence, should be included in computing the assessable value.
The respondent, however, disputed that.
They had neither included such rentals nor the interest received from the buyers in the price list for the assessment.
Therefore, the revenue issued show cause notices to the respondent.
In their reply the respondent stated that the deposits from buyers were only to ensure return of the gas clinders from the customers.
The Asstt.
Collector Central Excise, Visakhapatnam, by an order dated 3.6.1965 held that the respondent had to pay excise duty on the interest earned @ 18% during the relevant period.
He further held that since the respondent had suppressed this fact from the revenue, in the past 5 years, under Rule 8 read with Section 11A of the Act, these are includible.
He also included the rentals of these cylinders in the value.
On an appeal, the Collector of Central Excise, Madras, upheld the said order with certain modifications.
Dissatisfied with the aforesaid, the respondents appealed to the CEGAT.
In its order under appeal, the Tribunal observed, inter alia, as follows: "As regards charge on account of rental for the cylinders and the interest which accrues on account of deposit receipts for the supply of gases in returnable cylinders, we are not persuaded that either of these charges is related to the cost of manufacture of the goods as such." The Tribunal, therefore, under Section 4 deleted from the value, rentals for the cylinders and interest which accrued on account of deposit receipts for the supply of gases.
Hence, this appeal by the Collector.
It is well settled that the levy under the Act, is on the manufacture.
Under Section 4(1)(a) of the Act, excise duty is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this Section, be deemed to be the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale.
Here the sale is of the gases.
The levy is on the manufacture of gases and the excisable goods are these gases.
765 The scope of Section 4 has been explained by this Court in Union of India & ors.
vs Bombay Tyre International Ltd., ; as well as the ramifications thereof in Asstt.
Collector of Central Excise vs Madras Rubber Factory Ltd., [19861 Supp SCC 751.
In the light of the aforesaid principles it has to be borne in mind that the supply of gas cylinders is ancillary to the supply of gases but it is strictly not incidental thereto because there are classes of persons who can take delivery of these gases without supply of cylinders by the respondent and in those cases no question of charging rental nor interest on those deposits for cylinders, would arise.
It is true that the gas being a commodity of peculiar nature, had to be delivered in cylinders but these cylinders might be supplied either by the supplier as an ancillary activity or brought by the consumer or purchasers at their own risk and cost.
For purchasers taking it in their own cylinders supplied by them, there was no charge for them.
This is not an activity for the manufacture of gases.
This is ancillary to it but not incidental.
Any income either in the shape of interest on deposits, notional or real, may be earned on the deposit for the safe return of cylinders, or any rental would be though ancillary but would not be the price for the manufacture.
These might be profits or gains, if any, of any ancillary or allied venture.
If that is the true position, then on the principle under Section 4(1)(a) of the Act, the Tribunal was right in excluding these two amounts while computing the value of the excisable goods.
Mr. A.K. Ganguli, learned counsel appearing for the revenue, sought to urge before us that there are two different classes of buyers, one class of such buyers was who used to bring their own cylinders and the others used to get their supplies through the cylinders of the suppliers.
According to him, different rates for these two classes of buyers.
, in fact, constitute two different markets and are permissible.
This, according to him, is contemplated under the first proviso to Section 4(1)(a) of the Act, which reads as follows: "(i) where, in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such class of buyers. ' There may be different classes of buyers for different classes of goods.
Section 4(1)(a) of the Act emphasises that if the goods is of the 766 same type, the prices should also be the same.
The proviso to the said Section postulates that where in accordance with normal practice such goods, namely, the gases are sold to different classes of buyers then different prices may be charged.
If gases had been sold to different classes of buyers at different rates, it is possible that there might be different markets for the same.
But here the charges like rentals for the cylinders and the notional interest income, are for ancillary or allied services and that is not an activity of manufacture.
Hence, Section 4(1)(a) proviso can be of no avail to the renenue.
It is a case of two different supplies.
One is supply of gases and the other is incidental supply of cylinders for rent.
In that view of the matter, in our opinion, the Tribunal was right in the view it took.
The interest, notional or real, accruing on deposits for the safe return of cylinders as well as the rentals would not constitute part of the assessable value.
In the aforesaid view of the matter the order of the Tribunal needs no interference.
The appeals, accordingly, fail and are dismissed There will be no order as to costs.
N.V.K. Appeals dismissed.
|
The respondent firm are manufacturers of dissolved acetylene gas and compressed oxygen gas.
They were supplying these gases in cylinders at their factory gate.
For taking delivery some consumers/ customers used to bring their own cylinders and take the delivery.
Others, used to have the delivery in the cylinders supplied by the respondent firm.
For the purpose of such supply of cylinders certain rentals were charged by the firm, and also to ensure that these cylinders are returned, a certain amount as deposit used to be taken from the customers.
On these deposits notional interest at 18 percent per annum was calculated.
The Central Excise Authorities issued show cause notices to the respondent on the ground that the notional income on the deposit of cylinders and the rental are part of the assessable value, and hence should be included in computing the assessable value.
In their reply the respondent stated that the deposits from the buyers were only to ensure return of the gas cylinders from the customers.
The Assistant Collector by his order dated 3rd June, 1965 held that the respondent had to pay excise duty on the interest earned at 18% during the relevant period, and that as the respondent had suppressed this fact from the revenue during the past 5 years, the amount was includible and recoverable under Rule 8 read with Section 11A of the .
He also included the rentals of the cylinders in the value.
In appeal the Collector upheld the order of the Assistant Collector but with certain modifications.
762 The respondent appealed to the Central Excise and Gold Control Appellate Tribunal, which allowed the appeal, and held that the charge on account of rentals for the cylinders and the interest which accrued on the deposit for the cylinder are not relatable to the cost of manufacture of the goods, and therefore under Section 4 deleted from the value, rentals for the cylinders and the interest on the deposit.
In the appeals to this Court it was contended on behalf of the Revenue that there are two different classes of buyers, one class who brings their own cylinders, and the others who get their supply through the cylinders of the suppliers, and that different rates for these two classes of buyers constitute two different markets and are contemplated and permissible, under the first proviso to Section 4(1)(a) of the Act.
Dismissing the Appeals, ^ HELD: 1.
Section 4(1)(a) proviso can be of no avail to the Revenue.
There may be different classes of buyers for different classes of goods.
In the instant case, if the respondent company sold the gases to different classes of buyers then different prices may be charged.
If the gases had been sold to different classes of buyers at different rates, it is possible that there might be different markets for the same.
The charges like rental for the cylinders and the notional interest income are for ancillary or allied services and that is not an activity of manufacture.
[766A B] Union of India & Ors.
vs Bombay Tyre International Ltd., ; and Asstt.
Collector of Central Excise vs Madras Rubber Factory Ltd., [1986] Supp SCC 751, referred to. 2.
It is well settled that levy under the Central Excises Salt Act is on manufacture.
In the instant case, the sale is of gases.
The levy is on the manufacture of gases and the excisable goods are these gases.
[764G,H] 3.
Gas being a commodity of peculiar nature, has to be delivered by cylinders, but these cylinders might be supplied either by the supplier as an ancillary activity or brought by the consumers or purchasers at their own risk and cost.
For purchasers taking it in their own cylinders supplied by them, there was no charge for them.
This is not an activity for the manufacture of gases.
This is ancillary to it but not incidental.
[765C] In the instant case, there are two different supplies.
One is supply 763 of gases and the other is an incidental supply of cylinders on rent.
The interest notional or real accruing on deposits for the safe return of cylinders as well as the rental would not constitute part of the assessable value.
The Tribunal was right in the view it took.
[766C D]
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