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2. The present appeal is directed against the judgment and order
dated 24th April, 2019 passed by the National Consumer Disputes
Redressal Commission, New Delhi (hereinafter referred to as the
NCDRC) in Revision Petition No. 897 of 2018, whereby the NCDRC
while allowing the said Revision Petition, has set aside the order
passed by the State Commission and has confirmed the order
passed by the District Forum.
Dr. 3. The short facts giving rise to the present appeal are that Mr.
Pradeep Kumar, the husband of the respondent herein (original
complainant) had taken/purchased a life insurance policy under the
Jeevan Suraksha Yojana on 14.04.2021 from the appellant-Life
Insurance Corporation, under which a sum of Rs. 3,75,000/- was
assured by the corporation, and in case of death by accident an
additional sum of Rs. 3,75,000/- was also assured. The insurance
premium of the said policy was to be paid six monthly. The next
premium was due to be paid by the said insured Pradeep Kumar on
14th October, 2011. However, he committed a default. On
06.03.2012, the said Pradeep Kumar i.e. the husband of the
complainant met with an accident and succumbed to the injuries on
21.03.2012. In the meantime, he deposited the due premium of
October, 2011 on, 09.03.2012 for reviving the policy. The
complainant after the death of her husband filed a claim before the
appellant-Corporation. The appellant paid a sum of Rs. 3,75,000/- to
the complainant, however, did not pay the additional amount of Rs.
3,75,000/- towards the Accident claim benefit. The complainant,
therefore, approached the District Forum by filing a complaint
seeking the said amount towards the Accident claim benefit. The
said complaint was resisted by the Life Insurance Corporation
contending, inter alia, that the day when the husband of the
complainant met with an accident, the said policy had already
lapsed on account of non-payment of the due premium.
4. The District Forum placing reliance upon the Ready reckoner
issued by the appellant-Corporation, allowed the said claim of the
respondent vide its judgment and order dated 14.10.2013. The
appellant-Corporation being aggrieved by the same preferred an
appeal before the State Consumer Disputes Redressal Commission.
The State Commission allowed the said appeal and set aside the
said order passed by the District Forum. The aggrieved complainant
preferred a Revision Petition being no. 897 of 2008 under Section
21(B) of the Consumer Protection Act (hereinafter referred to as the
said Act), before the NCDRC challenging the order passed by the
State Commission. The NCDRC vide the impugned judgment dated
24.04.2019 allowed the said Revision Petition of the respondent and
set aside the order passed by the State Commission. Hence, the
present Appeal has been filed by the appellant-Corporation.
5. The learned counsel appearing for the appellant-Corporation
placing heavy reliance on the condition no. 11 of the policy
submitted that the Accident claim benefit was payable only if the
policy was in force on the date of accident, however, in the instant
case, the policy had already lapsed in October, 2011 and the
husband of the respondent-complainant had sought to pay the
premium on 09.03.2012, i.e. three days after the occurrence of
accident on 06.03.2012. According to him, even the appellant-
Corporation was not informed about the said accident when the
policy was sought to be revived on 09.03.2012. He has placed
reliance on the judgments of this court in case of Vikram
Greentech (I) Ltd. & Anr vs New India Assurance Co. Ltd
(2009) 5 SCC 599 and in case of Life Insurance Corporation of
India Vs. Jaya Chandel (2008) 3 SCC 382 to submit that there
is a requirement of good faith on the part of the insured in the
contract of insurance.
6. However, the learned counsel appearing for the respondent-
complainant submitted that the said terms and conditions of the
policy were not brought to the notice of the insured i.e. the
husband of the complainant, and that the complainant was entitled
to the Accident claim benefit as per the Ready reckoner. He further
submitted that the husband of the complainant had made payment
of premium on 09.03.2012 along with the late fee charges and,
therefore, the policy had stood revived before the death of the
complainant’s husband. He also placed reliance on LIC vs. Jaya
Chandel (supra) to submit that since the insurance company had
issued the renewal premium receipt on 09.03.2012, it was required
to be construed that the policy which had already lapsed due to
non-payment of premium on time, had stood revived.
7. In order to appreciate the rival contentions raised by the
learned counsels for the parties, apt would be to reproduce the
relevant conditions of the policy in question. Relevant condition
“3. Revival of Discontinued Policies: If the policy has
lapsed, it may be revived during the life time of the
Life Assured, but within a period of five years, from
the due date of the first unpaid premium and before
the date of Maturity, on submission of proof of
continued incurability to the satisfaction of the
corporation and the payment of all the arrears of
premium together with interest compounding half
yearly at such rates as may be fixed by the
Corporation from time to time. The Corporation,
reserves the rights to accept or accept with modified
terms or decline the revival of Discontinued Policy.
The revival of a Discontinued Policy shall take effect
only after the same is a approved by the Corporation
and is specifically communicated to the proposer/Life
(a) If, after at least 3 full years premiums have been
paid in respect of this Policy, any subsequent
premiums be not duly paid, this Policy shall not be
wholly void, but shall subsist as a Paid-up Value
which shall be payable in case of death/Matyrly and
shall depend on the number of years for which
premiums have been paid and shall be greater of a
sum that bears the same ratio to the Maturity Sum
Assured as the number of premiums actually paid
shall bear to the total number of premiums originally
stipulated in the Policy.
The surrender value as per para 7 below assuming
that the policy has been surrendered on the date of
death/Matyruty, as the case may be.
11. Accident Benefit (If opted for): If at any time
when this policy is in force for the full sum assured or
reduced sum assured in case of partial surrender of
the policy, the life assured, before the expiry of the
policy term or the policy anniversary on which the
age nearer birthday of the Life Assured is 70 years,
whichever is earlier, is involved in an accident
resulting in either permanent disability as hereinafter
defined or death and the same is proved to the
satisfaction of the Corporation, the Corporation
(b) Death of the Life Assured: to pay an additional
sum equal to the Accident Benefit Sum Assured
under this Policy, if the life assured shall sustain and
bodily injury resulting solely and directly from the
accident caused by outward, violent and visible
means and such injury shall within 180 days of its
occurrence solely, directly and independently of all
other causes result in the death of the life assured.”
8. Now, so far as the facts of this case are concerned, it is not
disputed that the husband of the complainant had taken the life
insurance policy on 14.04.2011, that the next premium had fallen
due on 14.10.2011 but was not paid by him, that the husband of
the complainant met with an accident on 06.03.2012, that
thereafter the premium was paid on 09.03.2012 and that he
expired on 21.03.2012. It is also not disputed that at the time of
making payment of premium on 09.03.2012, it was not disclosed by
the complainant or her husband to the appellant-Corporation about
the accident which had taken placed on 06.03.2012. The said
conduct on the part of the complainant and her husband in not
disclosing about the accident to the corporation not only amounted
to suppression of material fact and lacked bona fides but smacked
of their mala fide intention, and therefore, the Accident benefit
claim of the complainant was liable to be rejected on the said
ground alone. It is well settled legal position that in a contract of
insurance there is a requirement of Uberrima fides i.e. good faith on
the part of the assured. The Supreme Court in case of Vikram
SCC 599, while dealing with the contract of insurance held as
“16. An insurance contract, is a species of
commercial transactions and must be construed like
any other contract to its own terms and by itself. In a
contract of insurance, there is requirement of
uberrima fides i.e. good faith on the part of the
insured. Except that, in other respects, there is no
difference between a contract of insurance and any
other contract.
17. The four essentials of a contract of
insurance are: (I) the definition of the risk, (ii) the
duration of the risk, (iii) the premium, and (iv) the
amount of insurance. Since upon issuance of the
insurance policy, the insurer undertakes to indemnify
the loss suffered by the insured on account of the
risks covered by the insurance policy, its terms have
to be strictly construed to determine the extent of
liability of the insurer.
18. The endeavour of the court must always be
to interpret the words in which the contract is
expressed by the parties. The court while construing
the terms of policy is not expected to venture into
extra liberalism that may result in rewriting the
contract of substituting the terms which were not
intended by the parties. The insured cannot claim
anything more than what is covered by the insurance
policy. (General Assurance Society Ltd. v.
Insurance Co. Ltd. v. Sony Cheriyan AIR 1999
SC 3252 and United India Insurance Co. Ltd. v.
9. From the afore-stated legal position, it is clear that the terms of
insurance policy have to be strictly construed, and it is not
permissible to rewrite the contract while interpreting the terms of
the Policy. In the instant case, condition no. 11 of the Policy clearly
stipulated that the policy has to be in force when the accident takes
place. In the instant case, the policy had lapsed on 14.10.2011 and
was not in force on the date of accident i.e. on 06.03.2012. It was
sought to be revived on 09.03.2012 after the accident in question,
and that too without disclosing the fact of accident which had taken
place on 06.03.2012. Thus, apart from the fact that the respondent-
complainant had not come with clean hands to claim the add
on/extra Accident benefit of the policy, the policy in question being
not in force on the date of accident as per the condition no. 11 of
the policy, the claim for extra Accident benefit was rightly rejected
by the appellant-Corporation. Since, clause 3 of the said terms and
conditions of the policy permitted the renewal of discontinued
policy, the appellant-Corporation had revived the policy of the
respondent-complainant by accepting the payment of premium
after the due date and paid Rs. 3,75,000/- as assured under the
policy, nonetheless for the Accident benefit, the policy had to be in
force for the full sum assured on the date of accident as per the
said condition no. 11. The said Accident benefit could have been
claimed and availed of only if the accident had taken place
subsequent to the renewal of the policy. The policy in the instant
case was lying in a lapsed condition since 14 th October, 2011 and,
therefore, was not in force as on 06.03.2012, resultantly, the claim
over Accident benefit was not payable to the respondent as per the
conditions of the contract of insurance.
10. The Court, therefore, is of the opinion that the impugned order
passed by the NCDRC setting aside the order passed by the
Commission and reviving the order passed by the District Forum
was highly erroneous and liable to be set aside.
11. In the aforesaid premises, the present appeal is allowed and
the impugned order passed by the NCDRC is set aside. The claim of
the respondent towards Accident benefit stands rejected
accordingly. Pending applications, if any, are disposed of.
|
The Supreme Court observed that it is not permissible to rewrite the contract while interpreting the terms of the Insurance Policy.The bench of Justices Sanjiv Khanna and Bela M. Trivedi said that the terms of insurance policy have to be strictly construed. In a contract of insurance there is a requirement of Uberrima fides i.e. good faith on the part of the assured, the court...
The Supreme Court observed that it is not permissible to rewrite the contract while interpreting the terms of the Insurance Policy.
The bench of Justices Sanjiv Khanna and Bela M. Trivedi said that the terms of insurance policy have to be strictly construed. In a contract of insurance there is a requirement of Uberrima fides i.e. good faith on the part of the assured, the court said.
The complainant's husband had taken a life insurance policy under the Jeevan Suraksha Yojana on 14.04.2021 from the Life Insurance Corporation, under which a sum of Rs. 3,75,000/- was assured by the corporation, and in case of death by accident an additional sum of Rs. 3,75,000/- was also assured. He met with an accident and succumbed to the injuries on 21.03.2012. The complainant after the death of her husband filed a claim before LIC. She was paid a sum of Rs. 3,75,000/- , but the additional amount of Rs. 3,75,000/- towards the Accident claim benefit was not paid.
The complainant, therefore, approached the District Forum by filing a complaint seeking the said amount towards the Accident claim benefit. LIC contended that the day when the husband of the complainant met with an accident, the said policy had already lapsed on account of non-payment of the due premium. The complaint was allowed by the District Forum. The State Consumer Disputes Redressal Commission allowed the appeal. But, the National Commission Disputes Redressal Commission restored the order passed by District Forum.
Before the Apex Court, LIC contended that condition no. 11 of the Policy clearly stipulated that the policy has to be in force when the accident takes place. The policy had lapsed on 14.10.2011 and was not in force on the date of accident i.e. on 06.03.2012. It was sought to be revived on 09.03.2012 after the accident in question, and that too without disclosing the fact of accident which had taken place on 06.03.2012.
Taking note of this fact, the bench observed:
It is not disputed that the husband of the complainant had taken the life insurance policy on 14.04.2011, that the next premium had fallen due on 14.10.2011 but was not paid by him, that the husband of the complainant met with an accident on 06.03.2012, that thereafter the premium was paid on 09.03.2012 and that he expired on 21.03.2012. It is also not disputed that at the time of making payment of premium on 09.03.2012, it was not disclosed by the complainant or her husband to the appellant-Corporation about the accident which had taken placed on 06.03.2012. The said conduct on the part of the complainant and her husband in not disclosing about the accident to the corporation not only amounted to suppression of material fact and lacked bona fides but smacked of their mala fide intention, and therefore, the Accident benefit claim of the complainant was liable to be rejected on the said ground alone. It is well settled legal position that in a contract of insurance there is a requirement of Uberrima fides i.e. good faith on the part of the assured.
The court further observed thus, by referring to Vikram Greentech (I) Ltd. V/s New India Assurance Co. Ltd. (2009) 5 SCC 599:
From the afore-stated legal position, it is clear that the terms of insurance policy have to be strictly construed, and it is not permissible to rewrite the contract while interpreting the terms of the Policy. In the instant case, condition no. 11 of the Policy clearly stipulated that the policy has to be in force when the accident takes place
The court observed that the Accident benefit could have been claimed and availed of only if the accident had taken place subsequent to the renewal of the policy. Having held thus, it allowed the appeal and dismissed the complaint.
Case no. and Date: SLP(C) 13868 OF 2019 | 29 October 2021
Coram: Justices Sanjiv Khanna and Bela M. Trivedi
|
Civil Appeals Nos. 356 and 357 of 1961.
Appeals by special leave and certificate from the judgment and orders dated October 16, 1959, and February 16,1960, of the Madhya Pradesh High Court in L. P. A. No. 93 of 1957 and Misc.
Petition No. 254 of 1959 respectively.
152 section T. Desai and N. H. Hingorani, for the appellant.
M. R. Nambiar, section N. Andley, Rameshwar Nath and P. L. Vohra, for respondent No. 1. 1960.
October 20.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
These two appeals by special leave have been filed by the Municipal Committee, Raipur, against two different respondents who carry on business of extraction of oil from oil seeds.
The case involves an interpretation of the Byelaws of the Municipal Committee and the determination of octroi duty which was payable by the respondents in the relevant years of assessment on sarso oil seeds brought by them within the area of the appellant Committee for purposes of their business.
The Municipal Committee demanded an ad valorem octroi duty Rs. 4 11 0 per cent from the respondents, claiming to levy it under item 44 of the Schedule of goods liable to octroi duty in the Raipur Municipality, appended to the Rules framed on June 4, 1951.
The respondents, on the other hand contended that a duty of 2 annas per maund was leviable under item 4 of the same Schedule, which covered the case of oil seeds.
The respondents made representations described as appeals, but were unsuccessful.
Their demand for refund of octroi duty paid by them was refused and they, therefore, filed petitions under article 226 of the Constitution in the High Court of Nagpur (later, of Madhya Pradesh) against the appellants alleging inter alia that this imposition of octroi duty ad valorem at Rs. 4 11 0 percent on sarso oil seeds as against other oil seeds was ultra vires the Municipal Committee under article 14 of the Constitution.
They also averred that octroi duty was properly leviable under item 4 and not under item 44.
In the High Court, the petition out of which Civil Appeal No. 356 of 1961 arises, was heard by a learned single Judge, who held that 153 sarso oil seeds were chargeable to duty under item 44 and not under item 4.
From the order of the learned single Judge, it does appear that the constitutional question was urged before him.
Against this order, a Letters Patent Appeal was filed, and the Divisional Bench, which heard the appeal, held, disagreeing with the learned single Judge, that duty was properly leviable only under item 4.
Before the Divisional Bench also, it does not appear that the constitutional question was argued.
The petition, out of which Civil Appeal No. 357 of 1961 arises was heard by a Divisional Bench, which, following the earlier decision, decided against the appellant Committee.
The entries in the Schedule of goods liable to octroi duty in the Raipur Municipality contain eight classes of goods.
Under them are grouped 67 items, the serial numbers running consecutively through all the classes.
Class I is headed "Articles of food or drink or use for men or animals".
Item 4, which is in that Class reads "Oil seeds of every description not specifically mentioned elsewhere".
Class V is headed "Drugs, spices and gums, toilet requisites and perfumes", and item 44 reads "Betel nuts, gums, spices, Indian herbs and Indian raw medicines and drugs, such as nuts, ilaichi, laung, jaiphal, jaipatri, dalchini., sont, katha, zeera, Dhania garlic, dry chillies, pepper, shahzeera, maithi, sarso, etc.
and known as kirana" (groceries).
Item 4 is chargeable to a duty of 2 annas per maund, and item 44 is chargeable ad valorem at Rs. 4 11 0 per cent.
In addition to these entries, there is item 17, which reads "Vegetable oils (not hydrogenated) not provided elsewhere such as Tilli Tel, Sarso Tel, Alsi Tel, Falli Tel, Narial Tel, Andi Tel ', which are chargeable to a duty of 4 annas per maund.
It is conceded on all hands that sarso is an oil seed, and if there was nothing more in the Schedule a duty of 2 annas per maund would be leviable on sarso as an oil seed.
The dispute arises, because 154 sarso is mentioned again in Item 44 with a very much higher duty, and it is contended by the appellant Committee that the words "not specifically mentioned elsewhere" in item 4 exclude sarso from that item, and that its specific mention in item 44 makes it liable to the higher duty indicated there.
The learned single Judge of the High Court held in favour of the Municipality.
According to him, this reason was sound and the higher duty demanded was the proper duty payable.
The Divisional Bench on the other hand, points out that the two classes (I and V) are entirely different.
Class 1 deals with articles of food or drink for use for men and animals while Class V deals with drugs, spices and gums, toilet requisites and perfumes.
The division indicates clearly that goods belonging to one category are not included in the goods belonging to the other.
The Divisional Bench also points out that item 4 must be read as it stood and the specific mention must be in the same manner in which that entry was framed.
Item 4 deals with "oil seeds", and the specific mention must be as "oil seeds" elsewhere in the Schedule.
It was also argued for the respondents that "elsewhere" meant elsewhere in the same Class.
But the appellant Committee pointed out that the serial numbers were all consecutive, and that the specific mention could be anywhere in the Schedule.
The two arguments are equally plausible, and nothing much, therefore turns upon them.
In our opinion, the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else.
Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item.
Though sarso might be mentioned there, it must be taken to have been mentioned as a spice or as kirana and not as oil seed.
The extent of item 4, which deals with oil seeds of every descrip 155 tion, could only be cut down by a specific mention elsewhere of an item as an oil seed.
Item 44 contains fairly long list, out of which we have quoted a few illustrative items.
Each of these items is referable to the general heading either as a drug or a spice or gum, etc.
Sarso, it is admitted, is sold as kirana and as a spice.
The mention of sarso there is limited by the general heading to which it belongs, namely, a spice, drug or herb sold as kirana.
No doubt, sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye law and give effect to it.
If it was intended that sarso as an oil seed was to be taxed in a special way, it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty.
One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4, where oil seeds of every description are mentioned.
Though the next argument is not conclusive because there is no logic behind a tax, still it is to be noticed that sarso oil (a maund of which, as the affidavit of the respondents shows, is expressed from three maunds of oil seed) bears only an octroi duty of 4 annas per maund, while three maunds of sarso oil seed under item 44, if it were applicable, bear a duty of Rs. 4 3 6 per maund, if the price of sarso is taken as Rs. 30 per maund as stated in the affidavit.
This leads to an anomaly, which, in our opinion, could hot have been intended.
Finally, it may be said that if there be any doubt, the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer.
We, therefore, hold that the judgment of the High Court is correct, and dismiss these appeals with costs.
Appeals dismissed,.
|
The respondents carried on business of extraction of oil from oil seeds.
The appellant Municipality charged octroi duty at Rs. 4 11 0 percent ad valorem under item 44 of the schedule of goods attached to the Rules framed by the Municipality.
The respondent 's case was that they were liable to pay octroi under item 4 of the said Rules at the rate of 2 as.
per maund.
The schedule consisted of eight classes with 67 items of goods, the serial number running consecutively.
Class I was headed "Articles of food or drink or use for men or animals".
Item 4, which was in that class, read "oil seeds every description not specifically mentioned else where".
Class V was headed "Drugs, spices and gums, toilet requisites and perfumes" and item 44 which was in that class read "betel nuts, gums, spices, sarso etc.
and known as kirana" (groceries). 'I`he single Judge who heard the matter in the first instance held in favour of the appellant but the court of appeal held in favour of the respondent.
^ Held, that the view taken by the Court of appeal must be upheld.
The words not specifically mentioned elsewhere" in item 4 of the Schedule must mean mention as an oil seed.
The words "known as Kirana" in item 44 clearly indicated that sarso fell within its ambit only as a spice or as Kirana and not as an oil seed.
Although there could be no doubt that sarso as an oil seed was the same thing as Kirana, but the intention behind the bye law to charge oil seeds at a lesser rate was clear and must be given effect to.
|
ivil Appeal No. 3947 of 1986 From the Judgment and Order dated 30.8.1982 of the Allahabad High Court in Civil Misc.
Writ Petition No. 5105 of 1982.
Pramod Swarup, R. Singh Rana and Ashok K. Srivastava for the Appellant.
G.N. Dixit, M.K. Dua, Aman Vachher and S.K. Mehta for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
Smt.
Amna Begum was a resident of Rehpura Village, Tehsil Kichha, District Nainital in the State of Uttar Pradesh.
She owned a fairly large extent of agricultural land.
On 8.6.1973 the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 came into force.
Section 5 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as 'the Act ') provided that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amend ment) Act, 1972 no tenure holder would be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable in him or her.
The expression 'ceiling area ' is defined in sub section (2) of section 3 of the Act as the area of land not being exempted under the Act, determined as such in accordance with the provisions of section 5 thereof Since Smt.
Arena Begum, the tenure holder, was holding in the aggregate in the State of Uttar Pradesh land in excess of the ceiling area applicable to her, she became liable to surrender the surplus land, i.e., the land held by her in excess of the ceiling area.
applicable to her, in favour of the Government under the Act.
A general notice was issued under section 9 of the Act to all tenure holders holding land in excess of the ceiling area for submission of statements in respect thereof.
She did not file any statement before the Prescribed Authority as provided by section 9 of the Act.
After the publication of the said general notice but before she could be served with a notice under section 10(2) of the Act to submit her statement, Smt.
Arena Begum died.
The Prescribed Authority 103 who had no knowledge of the.
death of Smt.
Amna Begum, however, issued a notice addressed to her under section 10(2) of the Act calling upon her to show cause within the period specified in the notice why the statement prepared by him under section 10(1) of the Act should not be taken as correct.
The said notice could not, no doubt, be served on her, but one Fazai Ahmad, the father of Shams Ahmad re spondent No. 4, who was one of the heirs of Smt.
Amna Begum filed objections before the Prescribed Authority to the notice issued under section 10(2) of the Act.
The Prescribed Authority overruled the said objections and declared that Smt.
Amna Begum was holding 17.37 hectares of land as sur plus land by his order dated November 29, 1975.
Aggrieved by that order Fazal Ahmad, since deceased, and Shams Ahmad, son of Fazal Ahmad filed on appeal in Ceiling Appeal No. 541 of 1975 before the District Judge, Nainital.
That appeal was allowed on February 14, 1977.
The order against which the appeal had been filed was set aside and the case was remand ed to the Prescribed Authority to issue fresh notice to the tenure holders concerned, if necessary.
The reason given in the order passed by the District Judge, Nainital for allow ing the appeal was that the tenure holder, Smt.
Amna Begum was dead by the time the notice under section 10(2) of the Act was issued and the order of the Prescribed Authority passed against a dead person could not be allowed to stand.
The learned District Judge did not record any other finding on the merits of the case.
After remand the case was en quired into by the Prescribed Authority.
In that proceeding fresh notices under section 10(2) of the Act was issued to the heirs of Smt.
Amna Begum.
Sharifan Begum.
respond ent No. 3, one of the heirs of Smt.
Amna Begum appeared before the Prescribed Authority and contended inter alia that she held only 91.12 bighas of land in village Rehpura, as her one fourth share in the estate of Smt.
Amna Begum along with the other heirs of Smt.
Amna Begum.
She also pleaded that 12 acres of land had been transferred in favour of Daulat Ram and Prem Nath through registered sale deed for adequate consideration, the transfer was in good faith and, therefore, the said extent of land should be excluded from the holding while determining the surplus land.
She further contended that the determination of the surplus land should be made on the basis of the share held by each of the heirs of Smt.
Amna Begum treating each of them as an individual tenure holder entitled to land equal to one ceiling area in the estate of Smt.
Amna Begum as she had died prior to the service of the notice.
The Prescribed Authority accepted the contentions urged on behalf of the heirs of Smt.
Amna Begum and found that there was no surplus land that could be claimed from the holding in question since none of the heirs of Smt.
Amna 104 Begum was in possession of the land in excess of the ceiling area.
Against the order of the Prescribed Authority, the State Government filed an appeal before the Civil Judge, Nainital in Civil Appeal No. 32 of 1981.
The learned Civil Judge dismissed the appeal holding that Smt.
Amna Begum could not be treated as a tenure holder after her death and that after her death each of the heirs of Smt.
Amna Begum should be treated as an independent tenure holder entitled to one unit of ceiling area for purposes of determination of the surplus land.
He agreed with the Prescribed Authority that since none of the heirs of Smt.
Amna Begum was holding the land in excess of the ceiling area, they were not liable to surrender any surplus land.
The learned Civil Judge also held that the contention urged on behalf of the State Gov ernment that Smt.
Amna Begum who was alive on 8.6.1973 which was the relevant date for determining the surplus land should be treated as the tenure holder could not be main tained because the said contention was barred by res judica ta on account of the decision of the District Judge, Naini tal in Ceiling Appeal No. 541 of 1975, under which the case had been remanded earlier to the Prescribed Authority for fresh disposal.
The appeal filed by the State Government was, therefore, dismissed.
Aggrieved by the decision of the learned Civil Judge, Nainital, the State Government filed a writ petition before the High Court.
That writ petition was dismissed by the learned Judge, who heard it by his order dated August 30, 1982.
The only reason given by the learned Judge, who heard the writ petition, for dismissing it was that the State Government was not entitled to question the correctness of the orders of the Prescribed Authority and the Civil Judge as the order of remand of the case passed by the District Judge had become final and the contentions of the State Government were barred by the rule of res judica ta.
This appeal by special leave is filed against the order of the High Court dismissing the writ petition.
At the outset it should be stated that the reason given by the High Court for holding that the contentions urged on behalf of the State Government were barred by the rule of res judicata is wholly untenable since the learned District Judge, who disposed of the appeal on 14.2.1977 had not recorded any finding on the merits of the contentions of the parties.
He had set aside the order of the Prescribed Au thority passed earlier only on the ground that a proceeding which had been commenced against a dead person was a nulli ty.
He, however, remanded the case to the Prescribed Author ity for fresh disposal in accordance with law after issuing notices to the heirs of Smt.
Amna Begum whom he wrongly described as tenure holders solar as the estate of Smt.
Amna Begum was concerned.
The High Court was, 105 therefore, wrong in dismissing the writ petition on that ground.
As regards the contention urged on behalf of re spondent Nos. 3 to 5 Smt.
Sharifan Begum, Shams Ahmad and Smt.
Ahmadi Begum who were the heirs of Smt.
Amna Begum, namely, that for purposes of computation of the surplus land in their hands the relevant date that should be taken into consideration is the date on which such computation was made and not the date on which the ceiling was imposed by section 5 of the Act it has to be stated that the orders of the Prescribed Authority and the Civil Judge passed after the order of remand are wholly erroneous.
Arena Begum was alive on 8.6.1973 on which date the ceiling on the holdings in the State of Uttar Pradesh was imposed by section 5 of the Act.
Amna Begum became liable to surrender the surplus land in her hands in excess of what she could retain in accordance with that section.
Merely because she had died before the issue of the notice under section 10(2) of the Act her liability to surrender the surplus land would not come to an end.
Rule 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961 flamed under the Act provides that where a tenure holder dies before the publication of the general notice under section 9 of the Act, such publication shall be deemed to apply to the executor, administrator or other legal representatives and the Prescribed Authority may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal represen tatives were the tenure holder.
It also provides that where a tenure holder dies before he is served with a notice under sub section (2) of section 10 of the Act, the Prescribed Authority may serve such notice on his executor, administra tor or other legal representatives and may proceed to deter mine the ceiling area applicable to the deceased person as if such executor, administrator, or other legal representa tives were the tenure holder.
The principle applicable to the determination of the surplus land under the land reform laws in the hands of persons holding land on the date on which the ceiling is imposed is explained by this Court in Raghunath Laxman Wani vs State of Maharashtra, at page 397, thus: "The scheme of the Act seems to be to deter mine the ceiling area of each person (includ ing a family) with reference to the appointed day The policy of the Act appears to be that on and after the appointed day no person in the State should be permitted to hold any land in excess of the ceiling 106 area as determined under the Act and that ceiling area would be that which is determined as on the appointed day.
Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceil ing area for that family would be the basic ceiling area plus 1/6th thereof per member in excess of the number five.
The ceiling area so fixed would not be laible to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of sections 3 and 4, no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members.
The argument that every addition or reduction in the number of the members of a family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and refixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contem plated by the legislature.
" The principle enunciated in the above decision has been followed by this Court in Bhikoba Shankar Dhumal (dead) by Lrs.
and Others vs Mohan Lal Punchand Tatbed and Others.
, ; In that case it was held that the surplus land in the case of a person who held land in excess of the ceiling area on the appointed day had to be deter mined as on the appointed day even though such person might have died before the actual extent of surplus land was determined and notified.
It was further held that the per sons on whom his holding devolved on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the de ceased would not come to an end on his death.
Although the above decisions are rendered in cases arising under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 the principle set out therein applies to all cases where there is an imposition of ceiling on lands held bY land holders by land ceiling laws with effect from a specified date.
In fact rule 19 of the Rules framed under the Act which is referred to above also leads to the same view.
Whatever surplus land was liable to be surrendered by a tenure holder has to be determined as on 8.6.1973 and taken possession under the Act even though the tenure holder might have died after 8.6.1973 and before such ascertain ment.
We, therefore, do not agree with the view of the Prescribed 107 Authority and the Civil Judge that for purposes of determin ing the surplus land the share of land in the hands of each of the heirs of Smt.
Amna Begum should be treated as a separate unit for determining the surplus land.
We hold that for purposes of deciding the surplus land which is liable to be surendered from out of the estate of Smt.
Amna Begum, the relevant date that should be taken into account is 8.6.1973 on which date the ceiling on holdings was imposed and Smt.
Arena Begum became liable to surrender the surplus land in accordance with the provisions of the Act.
The heirs or legal representatives of Smt.
Amna Begum together are enti tled to retain out of the estate of Smt.
Amna Begum only an extent of land equal to the area which Smt.
Arena Begum could have retained in her hands after the imposition of ceiling on land holdings and are liable to surrender the surplus land.
The High Court failed to consider this aspect of the question when it disposed of the writ petition.
We, therefore, set aside the orders passed by the High Court, by the Civil Judge on 4.12.1981 and by the Prescribed Authority on 16.1.1981 and remand the case to the Prescribed Authority for fresh disposal in accordance with law and in the light of this judgment.
All other questions are left open.
This appeal is accordingly allowed will be no order as to costs.
A.P.J. Appeal al lowed.
|
Section 5 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 provided that on and from the com mencement of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, which came into force on 8.6.1973, no tenure holder would he entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the 'ceiling area ', as defined in Sub s.(2) ors.3 of the Act.
Since Smt.
Anma Begum, the tenure holder was holding in the aggregate land in excess of the ceiling area, she became liable to surrender the surplus land.
Pursuant to a general notice issued under s.9 to all tenure Imlders, holding land in excess of the ceiling area, she did not file any state ment before the Prescribed Authority After the publication of the general notice but before she could he served with a notice under s.10(2) she died.
The Prescribed Authority not knowing of her death issued a notice under s.10(2) calling upon her to show cause why the statement prepared by him under section 10(1) should not he taken as correct.
The father of respondent No. 4, one of the .heirs, filed objections which were over ruled, and it was declared that Smt.
Arena Begum was holding 17.37 hectares of land as surplus land.
The District Judge holding that since the tenure holder was dead by the time the notice under section 10(2) was issued, the order of the Prescribed Authority passed against a dead person could not be allowed to stand, allowed the appeal, set aside the order of the Prescribed Authority and remanded the case.
Fresh notices under s.10(2) were issued to the heirs.
Respondent No. 3 contended that she held only 91.12 bighas of land as her onefourth share and that 12 acres of land had been transferred through registered sale deed far adequate consideration and in good faith and 100 the land to that extent should be excluded from the holding while determining the surplus land and that the determina tion of the surplus land should be made on the basis of the share held by each of them as an individual tenure holder.
The Prescribed Authority held that there was no surplus land that could be claimed from the holding in question since none of the heirs of deceased tenure holder was in possession of the land in excess of the ceiling area.
The appeal by the State Government against the order of the Prescribed Authority was dismissed by the Civil Judge holding that Smt.
Anma Begum could not be treated as a tenure holder after her death, and that since none of the heirs of Amna Begum was holding the land in excess of the ceiling area they were not liable to surrender any surplus land.
The petition under Article 226 filed by the State Gov ernment was dismissed holding that the State Government was not entitled to question the correctness of the orders of the Prescribed Authority and the Civil Judge as the order of remand of the case passed by the District Judge had become final.
Allowing the Appeal, HELD: 1.
The orders passed by the High Court, the Civil Judge and the Prescribed Authority are set aside and the case is remanded to the Prescribed Authority for fresh disposal.
[107D] 2.
The reason given by the High Court for holding that the contentions urged on behalf of the State Government were barred by the rule of res judicata is wholly untenable since the District Judge while remanding the case had nut recorded any finding on the merits of the contentions of the parties.
He had set aside the order of the Prescribed Authority passed earlier only on the ground that a proceeding which had been commenced against a dead person was a nullity.
He, however, remanded the case to the Prescribed Authority for fresh disposal in accordance with law after issuing notices to the heirs of Smt.
Amna Begum whom he wrongly described as tenure holders so far as her estate was concerned.
The High Court was, therefore, wrong in dismissing the writ petition on that ground.
[104D 105A] 3. Smt.
Amna Begum was alive on 8.6.1973 on which date ceiling 101 on the holdings in the State of Uttar Pradesh was imposed by s.5 of the Act.
Amna Begum became liable to surrender the surplus land in excess of what she could retain in accordance with that section.
Merely because she had died before the issue of the notice under s.10(2) of the Act the liability to surrender the surplus land would not come to an end.
[105C] 4.
Rule 19 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Rules, 1961 framed under the Act provides that where a tenure holder dies before the publication of the general notice under s.9 of the Act, such publication shah be deemed to apply to the executor, administrator or other legal representatives and the Prescribed Authority may proceed to determine the ceiling area applicable to the deceased person as if such executor administrator of other legal representatives were the tenure holder It also pro vides that where a tenure holder dies before he is served with a notice under sub section
(2) of section 10 of the Act, the Prescribed Authority may serve such notice on his executor, administrator or other legal representatives and may proceed to determine the ceiling area applicable to the deceased person as if such executor, administrator or other legal representatives were the tenureholders.
[105D F] 5.
The principle applicable to the determination of the surplus land under the land reform laws in the hands of person holding land is the date on which the ceiling is imposed.
[105G] 6. 'The surplus land in the case of a person who held land in excess of the ceiling area on the appointed day had to he determined as an the appointed day even though such person might have died before the actual extent of surplus land was determined ,tad notified.
The persons on whom his holding devolved on his death would be liable to surrender the surplus land as on the appointed day because the liabil ity attached to the holding of the deceased would not come to an end on his death.
[I06E F] Raghunath Laxman Wani vs
State of Maharashtra, at page 397 & Bhikoba Shankar Dhumal (dead) by Lrs.
and Others vs Mohan Lal Punchand Tathed and Others, [1982] 1 S.C.C680, followed.
For the purpose of deciding the surplus land which is liable to be surrendered from and out of the estate of Smt.
Arena Begum, the relevant date that might be taken into account is 8.6.1973 on which date the ceiling on holdings was imposed and she became liable to surrender the surplus land.
Her hews or legal representatives together are enti tled 102 to retain out of her estate only an extent of land equal to the area which she could have retained in her hands after the imposition of ceiling on land holdings and are liable to surrender the surplus land.
[107B C]
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W.P.(C)No. 15534 of 2023
Dated this the 23rd day of June, 2023
The father of a minor girl aged 15 years filed
this writ petition with a main prayer to terminate
the pregnancy of his daughter. It is stated that the
minor son of the petitioner impregnated her minor
daughter. I am sure that the petitioner, the father
of these minor children put his signature in this writ
petition with tears in his eyes. He and his wife has
to face this embarrassing situation not only today
but in future too. It is the duty of our society to
keep these parents close to get over from this
trauma. Nobody can blame the parents. But,Neutral Citation Number :2023:KER:35102
we the society is responsible for this. Sibling incest
may take place in the context of a family system
that does not provide a safe environment for its
members. But it may also happen because of the
lack of knowledge about safe sex. I am of the
considered opinion that the Government should
seriously think about the necessity of proper ‘sex
education’ in schools and colleges. This court
observed like this on earlier occasion also. Safe sex
education is the need of the hour to avoid these
type of embarrassment to the parents. A good
family atmosphere is necessary in the society. To
attain this, every citizen of this country should join
together without pelting stone to such unfortunate
people. The above writ petition is filed with the
following prayers:
“(i) Issue a writ of mandamus or anyNeutral Citation Number :2023:KER:35102
other appropriate writs, orders of directions
directing the respondents to terminate the
pregnancy of the victim girl in Crime
No.331/2023 of the Vazhikadavu Police Station
as expeditiously as possible;
(ii) Declare that the pregnancy would
cause serious mental injury to the minor girl
and hence the same is liable to be terminated;
(iii)Issue a writ of mandamus or any
other appropriate writs, orders of directions
directing the 8th respondent to restore the
custody of the minor girl child to her parents
forthwith;
(iv)Dispense with the filing of English
translation of Vernacular documents;
(v)Grant such other reliefs as this
Hon'ble Court may deem fit and proper in the
circumstances of the case.”[SIC]
2.When this writ petition came up for
consideration on 16.05.2023, this Court passed the
following order:
“When the matter came up before this Court
on 12.5.2023, the learned Government PleaderNeutral Citation Number :2023:KER:35102
submitted that the victim was produced before the
Medical Board on 11.05.2023. She sought for time
to produce the medical reports.
2. Today, the learned Government Pleader
makes available the medical report of the Special
Medical Board constituted by Superintendent,
Government Medical College Hospital, and the
observations in the report are extracted
hereunder:-
Opinions of the Medical Board after
Examination are
“1. Child is physically and mentally fit
for Medical Termination of Pregnancy.
2. Continuation of pregnancy is likely to
cause grave injury to the social and mental
health of the child.
3. Physical health of the child is likely to
be affected by the complication of teenage
pregnancy.
4. As she has crossed 32 weeks of
pregnancy there is a possibility of giving birth
to a live baby with all the problems of
prematurity. So the Medical Board has raised
concerns about the further care of the baby in
case needed.”
3. Since risk factors are involved, theNeutral Citation Number :2023:KER:35102
petitioner is to file an affidavit before this Court
undertaking to undergo the risk shown in the
report of the Medical Board. The Medical Board
shall also evaluate the possibility of saving the life
of the baby before termination of pregnancy.
Post on 19.05.2023.
Hand Over ”
3.Thereafter, when the matter came up for
consideration on 19.05.2023, this Court passed the
following order:
“The petitioner is the father of a minor girl aged
15 years and he has approached this Court,
seeking the following reliefs:
(i) Issue a writ of mandamus or any other
appropriate writs, orders of directions directing
the respondents to terminate the pregnancy of
the victim girl in crime No.331/2023 of the
Vazhikadavu Police Station as expeditiously as
possible;
(ii) Declare that the pregnancy would cause
serious mental injury to the minor girl and
hence the same is liable to be terminated;
(iii) Issue a writ of mandamus or any other
appropriate writs, orders of directions directing
the 8th respondent to restore the custody ofNeutral Citation Number :2023:KER:35102
the minor girl child to her parents forthwith;
(iv) Dispense with the filing of English
translation of Vernacular documents; (v) Grant
such other reliefs as this Hon'ble Court may
deem fit and proper in the circumstances of the
case.”
2. The unfortunate situation in this case is
as follows:
The minor daughter of the petitioner got
impregnated by the son of the petitioner and as of
now the daughter is 7 months pregnant. The
prayer as above is sought in such circumstances.
3. In response to the averments contained
in the writ petition, the Medical Board after
examination, submitted a report wherein, their
opinion was expressed in the manner as follows:
“Opinions of the Medical Board after
Examination are
1. Child is physically and mentally fit for
Medical Termination of pregnancy.
2. Continuation of pregnancy is likely to cause
grave injury to the social and mental health of
the child.
3. Physical health of the child is likely to be
affected by the complication of teenage
pregnancy.
4. As she has crossed 32 weeks of pregnancy
there is a possibility of giving birth to a liveNeutral Citation Number :2023:KER:35102
baby with all the problems of prematurity. So
the Medical Board has raised concerns about
the further care of the baby in case needed.”
4. Earlier, when the matter came up for
consideration before this Court, taking note of the
eventuality as highlighted by the Medical Board as
serial No.4 above, the petitioner was directed to
submit an affidavit, undertaking to undergo the
risks as highlighted by the Medical Board. In
compliance of the aforesaid direction, an affidavit
has been submitted by the petitioner.
5. Upon perusal of the medical report, it is
evident that, the child is physically and mentally
fit for medical termination of pregnancy. It is also
stated that continuation of pregnancy is likely to
cause grave injury to the social and mental health
of the child. Considering the fact, the child is born
from his own sibling, various social and medical
complications are likely to arise. In such
circumstances, the permission as sought for by
the petitioner to terminate the pregnancy is
inevitable. However, even while addressing the
said issue and passing appropriate orders in this
regard, the possibility of giving birth to a live baby
cannot be overruled, as highlighted by the MedicalNeutral Citation Number :2023:KER:35102
Board.
6. In such circumstances, I am inclined to
allow medical termination of pregnancy of the
daughter of the petitioner, in the light of the
principles laid down by this Court in the decisions
reported in xxx v. Union of India and others
[2021(3) KLT 279] and xxx v. Union of India
and others [2022 KHC 2022]. Therefore, it is
ordered that, respondents 4 and 5 are directed to
take urgent steps to medically terminate the
pregnancy of minor daughter of the petitioner
without any delay. After completion of the
procedure, a report in this regard shall be
submitted before this Court to enable the Court to
pass appropriate orders for addressing the further
issues that are likely to arise in this case.
Post after a week.”
4.Again when the matter came up for
consideration on 02.06.2023, this Court passed the
following order:
“The petitioner is free to submit an
application before the 8th respondent seeking
restoration of the child in accordance to Sec. 40 ofNeutral Citation Number :2023:KER:35102
Juvenile Justice (Care and Protection of Children)
Act, 2015 by tomorrow. If such an application is
received, the 8th respondent will consider the same
and take a decision in it, in consultation with the
doctors, within one week from the date of receipt
of the application. The order passed by the 8th
respondent will be produced before this Court.
2. Regarding the discharge of the petitioner's
child, the Police authorities can do the needful in
consultation with the medical authorities. The
custody of the new born child of the minor girl also
will be decided by the 8th respondent in accordance
to Sec.35 of the Juvenile Justice Act.
3. Post on 09.06.2023.
Issue a copy of this order today itself. ”
5.Today when the matter came up for
consideration, both sides submitted that, as per
order dated 03.06.2023, the Child Welfare
Committee, Malappuram handed over the minor
mother to her uncle. The order is produced before
this Court. It will be better to extract the relevant
portion of the above order:Neutral Citation Number :2023:KER:35102
6.As far as the new born child is concerned,
the Child Welfare Committee informed that the new
born child is surrendered to the committee and a
consequential order is also passed. The relevant
portion of the order No.CWC/M/1547/2022 dated
07.06.2023 passed by the Child Welfare
Committee, Malappuram is extracted here under:
7.In the light of the above orders, I think
no further order is necessary. The Child WelfareNeutral Citation Number :2023:KER:35102
Committee will take necessary consequential steps
in accordance with law. The protection of the new
born child is the duty of the state. These types of
causalities shall not be there in our society in
future. The embarrassment of the parents and also
the victim girl cannot even be imagined. As I said
earlier, this happened because of the lack of
knowledge about the safe sex. Minor children are in
front of ‘internet’ and ‘google search’. There is no
guidance to the children. The Government should
constitute a committee, if necessary, to study the
issue and should think about including the ‘safe sex
education’ in the curriculum of schools and
colleges.
The Registry will forward a copy of this
judgment to the Chief Secretary, State of Kerala for
taking appropriate action in the light of the factsNeutral Citation Number :2023:KER:35102
and circumstances of this case.
With the above observation, this writ petition
is disposed of.
DM JUDGENeutral Citation Number :2023:KER:35102
|
The Kerala High Court recently urged the State government to seriously consider the need for including safe sex education in the curriculum of schools and colleges.
The Court made the observation while disposing of a petition filed by a father to medically terminate the pregnancy of his minor daughter who was impregnated by her own brother.
Justice PV Kunhikrishnan underscored that safe sex education is the need of the hour to avoid this type of embarrassment for the parents.
“Nobody can blame the parents. But we the society are responsible for this. Sibling incest may occur in a family system that does not provide a safe environment for its members. But it may also happen because of the lack of knowledge about safe sex. I am of the considered opinion that the Government should seriously think about the necessity of proper ‘sex education’ in schools and colleges ... A good family atmosphere is necessary for the society. To attain this, every citizen of this country should join together without pelting stones at such unfortunate people," the judgment stated.
The Court has called for the constitution of a committee, if necessary, to study the issue of including ‘safe sex education’ in the curriculum of schools and colleges.
“As I said earlier, this happened because of the lack of knowledge about safe sex. Minor children are in front of ‘internet’ and ‘Google search’. There is no guidance for the children," the Court highlighted.
A copy of the order was also directed to be forwarded to the Chief Secretary, State of Kerala for necessary action.
Earlier, the Court had initially allowed the medical termination of the minor girl's seven-month pregnancy. However, the Court was informed in the following hearing that the minor girl had delivered a child.
Thereafter, the Court directed the Child Welfare Committee to take a decision on the custody of the new born child in accordance with the Juvenile Justice Act.
The Child Welfare Committee in turn informed the Court that the newborn child was surrendered to it and that the minor girl was handed over to her uncle.
Thus, the Court observed that no more orders were needed in the case and disposed of the matter, while stressing that such incidents should not occur in the State again.
“In light of the above orders, I think no further order is necessary. The Child Welfare Committee will take necessary consequential steps in accordance with the law. The protection of the newborn child is the duty of the state. These types of causalities shall not be there in our society in the future. The embarrassment of the parents and the victim girl cannot be imagined," the Court observed.
|
Dated: 16th May, 202 2
In pursuance of Rule 4 of Order II of the Supreme Court Rules, 2013, Hon'ble
the Chief Justice of India has directed that the Supreme Court w ill be closed for the
annual Summer Vacation from Monday, the 23rd May, 202 2 to Sunday, the 10th July,
2022 (both days inclusive) and will reopen on Monday, the 11th July, 202 2.
Under Rule 6 of Order II of the Supreme Court Rules, 2013, Hon'ble the Chief
Justice of India has nominated the following Division Benches to sit as Vacation
Benches during the Summer Vacation, 2022 :
Division Bench Name of the Hon'ble Judges
1. Hon'ble Dr. Justice D.Y . Chandrachud
And
Hon'ble Ms. Justice Bela M. Trivedi
2. Hon'ble Mr. Justice S. Abdul Nazeer
And
Hon'ble Mr. Justice Pamidig hantam Sri Narasimha
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice Ajay Rastogi
And
Hon'ble Mrs. Justice B.V. Nagarathna
2. Hon'ble Mr. Justice B.R. Gavai
And
Hon'ble Mr. Justice Pamidigh antam Sri Narasimha
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice M.R.Shah
And
Hon'ble Mr. Justice Aniruddha Bose
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice A.S . Bopanna
And
Hon'ble Mr. Justice Vikram Nath
2. Hon'ble Mr. Justice J.K. Maheshwari
And
Hon'ble Ms. Justice Hima Kohli
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice C.T. Ravikumar
And
Hon'ble Mr. Justice Sudhanshu Dhulia
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice Surya Kant
And
Hon'ble Mr. Justice J. B. Pardiwala
2. Hon'ble Mr. Justice Abhay S. Oka
And
Hon'ble Mr. Justice M.M. Sundresh
Division Bench Name of the Hon'ble Judges
1. Hon'ble Ms. Justice Indira Banerjee
And
Hon'ble Mr. Ju stice J. K. Maheshwari
2. Hon'ble Mr. Justice Dinesh Maheshwari
And
Hon'ble Mr. Justice Krishna Murari
During Summer Vacation the Registry will remain open from 10.00 A.M. to 5.00 P.M.
for all the Officers and staff members of the Registry except Group -C (non -clerical) staff in
whose case timings will be from 9.30 A.M. to 5.30 P.M on all the days except Saturdays
(other than the 9th July, 202 2), Sundays and holidays when it shall remain closed.
|
The Supreme Court of India on Monday notified vacation benches that will hear cases during the upcoming summer vacation of the top court from May 23 to July 10.
In exercise of the powers under Rule 6 of Order II of the Supreme Court Rules, the Chief Justice of India NV Ramana has nominated twelve Division Benches which will hear cases during the seven weeks of summer break.
Below are the details:
May 23 to May 29
1. Justices DY Chandrachud and Bela M Trivedi;
2. Justices S Abdul Nazeer and PS Narasimha.
May 30 to June 5
1. Justices Ajay Rastogi and BV Nagarathna;
2. Justices BR Gavai and PS Narasimha.
June 6 to June 12
1. Justice MR Shah and Aniruddha Bose.
June 13 to June 19
1. Justices AS Bopanna and Vikram Nath;
2. Justices JK Maheshwari and Hima Kohli.
June 20 to June 26
1. Justices CT Ravikumar and Sudhanshu Dhulia.
June 27 to July 3
1. Justices Surya Kant and JB Pardiwala,
2. Justices AS Oka and MM Sundresh.
July 4, 2022 TO July 10, 2022
1. Justices Indira Banerjee and JK Maheshwari;
2. Justices Dinesh Maheswari and Krishna Murari.
During the vacation, the Registry will remain open from 10.00 AM to 5.00 PM for all its officers and staff except the non-clerical Group-C members, for whom the timings will be 9.30 AM to 5.30 PM on all days except Saturdays.
|
ivil Appeal No. 3704 of 1989.
From the Judgment and Order dated 11.3.1987 of the Bombay High Court in Second Appeal No. 725 of 1980.
437 U.R. Lalit, G.A. Shah, V.N. Ganpule for the Appellants.
D.A. Dave, R. Karanjawala, Ms. M. Karanjawala and Jatin der Sethi for the Respondents.
The Judgment of the Court was delivered by SAWANT.J.
This is a case where the High Court in second appeal has interfered with a pure finding of fact recorded by the First Appellate Court for no worthwhile reason, and ignoring the mandatory provisions of Section 100 of the Civil Procedure Code.
The only question which was involved in the suit was whether the suit properties in which the plaintiff claimed one fifth share, were the ancestral joint family properties or whether they were the self acquired properties of his father, Ramchandra.
The relevant facts are: defendant No. 1, Ramchandra had four sons including the plaintiff, and a daughter.
The three other sons and the daughter are defend ants Nos. 2 to 5.
One of the sons, defendant No. 3 appears to support the plaintiff.
During the pendency of the suit, Ramchandra died and his sons including the plaintiff have been brought on record as his heirs and legal representa tives.
The suit properties consisted of lands being (i) Survey No. 21/1 admeasuring 14 acres 3 gunthas, (ii) Survey No. 20/2 admeasuring 2 acres 36 gunthas, (iii) Survey No. 20/1 admeasuring 3 acres 30 gunthas and two houses all situated at Nizampur, Taluka Saaki, District Dhuiia.
It was the case of the plaintiff in his plaint that a joint family consisting of his father Ramchandra and his brother, Supadu owned several houses, and a land comprised in Survey No. 71 admeasuring about 14 acres.
In the partition between Ram chandra and Supadu, two houses and Survey No. 71 came to the share of Ramchandra The said two houses are included in the suit properties and it is not disputed on behalf of the respondent defendants that they are ancestral properties and the plaintiff has one fifth share in the same.
However, the case of the plaintiff that Survey No. 71 was the ancestral property was vehemently disputed and that has been the sheet anchor of contention of both the parties while the plaintiff claims that rest of the suit properties were purchased by Ramchandra out of the income and subsequently the sale proceeds, of the said land (since admittedly the said land was sold by Ramchandra in 1953), it is the case of the defendants that the said land was in fact purchased jointly by Ramchandra and his brother, Supadu out of their own earnings, and in the partition between Ramchandra and Supadu that land came to the share of Ramchandra.
Hence, according to the defendants, even 438 assuming that the rest of the suit properties were purchased with the help of the income from Survey No. 71, they were the self acquired properties of Ramchandra.
In support of his case that Survey No. 71 was the ancestral property, the plaintiff relied upon the fact that the said survey No. had come to the share.
of Ramchandra in a general partition between him and his brother, Supadu in 1918.
As against this, the defendants contended that Ram chandra 's father Pandu died in 1904 and since the property all along stood in the name of Supadu it showed that it was purchased after Pandu 's death in 1904.
They also relied upon the fact that Ramchandra was a skilled goldsmith and was well known for his artisanship and commanded good business.
His brother was also a goldsmith and both of them had pur chased the said land with the earning in goldsmithery.
It was also their case that Ramchandra 's father, Pandu had only two houses and no other property nor did he carry on any business even of goldsmithery.
Hence, there was no question of purchasing Survey No. 71 out of the income from the ancestral property by Ramchandra and Supadu and the purchase was with the help of the income which they had earned from the business which they were carrying on by their own skill.
It was also shown by the defendants that when Survey No. 71 was sold in 1953, no objection whatsoever was taken to the sale nor permission of any of the sons including that of the plaintiff was deemed necessary for the same.
They further contended that they had hardly any income from Survey No. 71 and the properties which were purchased prior to 1953 could not have been purchased with the help of any such income assuming that it was an ancestral land.
According to them, therefore, the suit properties were purchased only from the income from the business of goldsmithery.
The three of the properties were purchased prior to 1953 while the rest were purchased long after 1953, i.e. in 1961, 1965 and 1967.
Hence, their purchase had no relation to the sale of Survey No. 71 in 1953, again assuming that it was an ancestral property.
It is for these reasons, according to them, that the suit properties except the two houses which were admit tedly the ancestral properties were not the joint family properties in which the plaintiff could claim his share.
The relevant issues were framed including the issue as to whether defendants proved that the suit properties were self acquired and plaintiff had no share in it.
The Trial Court answered the said issue in favour of the plain tiff and decreed the suit against the defendants.
Against the said decision, the defendants appealed and the First 439 Appellate Court after reappreciating the evidence and point ing out the infirmities in the conclusions arrived at by the Trial Court, dismissed the suit except to the extent of the plaintiff 's share in the two ancestral houses.
It may be mentioned here that although Ramchandra, defendant No. 1 died during the pendency of the suit, he had willed out his properties in favour of the defendants and, therefore, the plaintiff had no share in the self acquired properties of Ramchandra which could have been granted to him otherwise.
The First Appellate Court held that the following circumstances showed that the suit properties except the ancestral houses were the self acquired properties of Ram chandra.
The first circumstance was that Survey No. 71 was purchased in the name of Supadu which showed that in all probability the property was purchased after the death of Ramchandra 's father, Pandu.
Secondly, since there was no record to show that Pandu had any lands or was carrying on any business, Survey No. 71 must have been purchased by Ramchandra and Supadu with the help of their earnings.
It was not disputed and in fact it was admitted that Ramchandra was a skilled goldsmith and was carrying on business of goldsmithery along with his brother, Supadu and was earning sufficient income with the help of which he could purchase the properties.
Survey No. 71 further was sold in 1953 without obtaining the consent of the other members of the family.
Had it been the joint family property the vendee would have insisted upon such consent.
The High Court interfered with these findings on grounds which were not even made out by the plaintiff either in the plaint or in his evidence and which were contrary to the admissions of the plaintiff himself.
The High Court held that since the property had come to the share of Ramchandra in general partition, it must be held that it was an ances tral property.
The High Court further held that Survey No. 71 was yielding sufficient income with the help of which the other properties would have been purchased and further the goldsmithery business was an ancestral business and, there fore, the properties purchased with the help of such income should also be held to be joint family properties.
It may be stated here that the learned counsel appearing for the appellant defendants wanted to produce before us documents to show that in fact Survey No. 71 was purchased in the year 1907 by Ramchandra and his brother Supadu after the death of their father, Pandu in 1904, and that in the Revenue records the property always 440 stood in the name of Supadu.
We did not permit him to pro duce the said documents since no explanation whatsoever was available as to why the documents were not produced before the courts below.
However, it was not disputed at any time that the property had all along stood in the name of Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of Pandu cannot be said to be unreasonable.
Secondly, there is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No; 71.
In fact, the uncontroverted evidence on record shows that Ramchandra who had entered the witness box had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labour ers who brought their own implements and bullocks.
This shows that the family derived less than normal income from the said land.
Secondly, it was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such, and was doing his business as goldsmith and earning sufficient income.
It was not his case further that the goldsmithery was the ancestral business.
However, the High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so.
What is further, the plaintiff 's case was that the suit properties were purchased with the income from Survey No. 71.
Thus it is obvious that the conclusions ' which were arrived at by the first Appel late Court were reasonable and legal besides being conclu sions of facts.
There was, therefore, no question of law involved in the second appeal.
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved a substantial question of law it could not entertain it and that before it could entertain it, the Court had to formulate such question.
We are, therefore, more than satisfied that the High COurt has erred in law in interfering with the decree passed by the First Appellate Court.
We, therefore, allow the appeal, set aside the decision of the High Court and restore the decree passed by the First Appellate Court.
Since the parties belong to one family we pass no order as to costs.
G.N. Appeal al lowed.
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S and R were brothers who carried on the business of gold smithery, and a partition took place between them in 1918.
R got 2 houses and land in Survey No. 71.
Later on, one of the sons of R instituted a suit claiming that Survey No. 71 was an ancestral property and that some of the suit properties were purchased by R out of the income, and subsequently the sale proceeds, of the land.
The defendants, viz., the other children of R contended that Survey No. 71 was purchased by S and R with the income they derived from gold smithery and the suit properties except the two houses which were admittedly the ancestral properties, were not the joint family properties in which the plaintiff could claim his share.
The Trial Court decreed the suit in favour of the plain tiff.
On appeal by the defendants, the First Appellate Court reappreciated the evidence, found infirmities in the conclu sions arrived at by the Trial Court and dismissed the suit except to the extent of plaintiff 's share in the two ances tral houses, on the basis of its finding that the other properties were self acquired properties of R. During the pendency of the suit R died.
By virtue of his will the self acquired properties of R went to the defend ants and the plaintiff was left out.
The plaintiff preferred an appeal before the High Court against the order of the First Appellate Court.
The High Court interfered with the said findings of facts and held that since Survey No. 71 had come to the share of R in general partition, it was ancestral property.
it further observed that since the said property was yielding income with the help of which the other properties could have been purchased and since 436 further the gold smithery business was an ancestral busi ness, the properties purchased with the help of such income should be held to be joint family properties.
Aggrieved, the defendants have filed this appeal.
Allow ing the appeal, HELD: 1.
There was, no question of law involved in the second appeal.
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved substantial question of law it could not entertain it and that before it could entertain it, the Court had to formulate such question.
[440F] 2.1 It was not disputed at any time that the property in Survey No. 71 had all along stood in the name of Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of his father cannot be said to be unreasonable.
There is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No.71.
In fact, the uncontroverted evidence on record shows that Ramchandra had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labourers who brought their own implements and bullocks.
This shows that the family derived less than normal income from the said land.
It was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such, and was doing his busi ness as goldsmith and earning sufficient income.
[440A D] 2.2 The High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so.
What is further, the plaintiff 's case was that the suit properties were purchased with the income from Survey No. 71.
Thus it is obvious that the conclusions which were arrived at by the First Appellate Court were reasonable and legal besides being conclusions of facts.
[440D E]
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APPEAL NOS. 2107 1 1993.
From the Judgment and Order dated 9.3.1992 of the Punjab and Haryana High Court in Civil Writ Petition Nos.13587, 13588, 13926 of 1991 and L.P.A. No. II 8 of 1992.
Dipankar Prasad Gupta, Solicitor General, N.N. Goswami and H.K. Puri for the Appellants.
Ranjit Kumar, Deepak Sibal, Ms. Binu Tamta and Tarun Aggarwal for the Respondents.
The Judgment of the Court was delivered by MOHAN, J.
Leave granted.
All these appeals raise the identical issue as to the interpretation of the Regulations relating to Diploma in Homeopathic Course.
Hence, they are dealt with under one and the same judgment.
We will refer to the facts of C.W.P. No. 13587/91 which will be enough for appreciating the issues involved.
The respondents joints the Homeopathic Medical College, Chandigarh in the year 1987 to secure a diploma in Homeopathic Medicine and Surgery (hereinafter referred to as 'DHMS ').
The said course is of a duration of four years.
It is divided into 3 1/2 years of academic study and six months of internship.
The course of study, their duration and the scheme of examination are regulated by the Homeopathy (Diploma Course) DHMS Regulations, 1983 (hereinafter called the 'Regulations ').
These Regulations have been framed by the Central Council of Homeopathy under Section 20 of the Homeopathy Central Council Act, 1973.
Part VI of the Regulations deals with examination.
Regulations 8 to 10 occurring in part VI are relevant for our purpose.
Regulation 8 talks of first First D.H.M.S. examination.
That examination has to be held at the end of 12 months of the Course.
Regulation 9 deals with second D.H.M.S. examination to be held at the end of second year.
Regulation 10deals with 3rd D.H.M.S examination, 11/2years subsequent to the passing of the second D.H.M.S. examination.
The respondents appeared in the first year D.H.M.S. annual examination in 312 June, 1988.
Since, they did not get required percentage of pass marks two or more subjects, they had to re appear.
They were permitted to join the 2nd year class after June, 1988.
Under the interim orders of the High Court made in C.W.P.No 437510/1990, they appeared in the examination.
The respondents simultaneously took their third chance for the first year D.H.M.S. examination and finally,cleared all the papers.
They also got re appeared in one or more subjects in the 2nd year D.H.M.S. examination and accordingly, took supplementary examination in June, 1990.
They were declared 'pass ' in that examination.
The respondents joined the third year D.H.M.S. examination and completed the course of study.
In view of that, the Principal of the college in August, 1991 recommended and forwarded their examination forms for the third year Examination to the appellant namely, the Council of Homeopathic System of Medicines, Punjab.
The appellant declined to permit the respondents to take the examination since they had not completed one year course of study between passing the first D.H.M.S. examination and appearing in the second one; hence, they were not eligible to appear in the third year examination.
In other words, the examination has not been passed in accordance with the scheme prescribed under Regulations 8 & 9.
It was under these circumstances, the writ petitions came to be preferred before the High Court of Punjab & Haryana in C.W.P. No. 13587/91 praying for a direction to permit them to take third year D.H.M.S. examination commencing from 3.9. 1991.
The writ petition came up before a Division Bench.
By judgment dated 9.3.1992 allowing that writ petition on the reasoning that if the minimum course of study as provided by Regulations 9 and 10 if held to be mandatory, such a provision would be liable to be struck down in view of the decision of the Court in C.W.P. No. 2307/88, Gurinder Pal Singh vs Punjabi University & Ors. which in turn has followed Single Judge decision reported in Harinder Kaur Chandok (Minor) vs The Punjab School Education Board through its Secretory It is the correctness of this judgment, which has been questioned in all these appeals.
The learned Solicitor General took us through Regulations at length.
Part II deals with course of study.
Regulation 3 states that a Diploma Course in Homeopathy shall be spread over a period of four years.
Those four years include six months compulsory internship after the passing of the final year diploma examination.
When we look at Regulations 8 to 10, three concepts emerge from them: 313 i) Subjects; ii) Time; ii) Marks.
The duration of the examination is, first year: 12 months, Second Year: 12 months; and third year: 18 months.
Regulation 8 states that a candidate may be admitted to the first D.H.M.S. examination.
Similarly, Regulation 9 also states that a candidate shall be admitted to the second D.H.M.S. examination.
Identical language is used under Regulation 10 for Third D.H.M.S. examination.
The submission of the learned Solicitor General is, admission to these examinations is entirely different from 'admission to a course '.
With reference to admission to each of the examination, First, Second and Third year, the respective Regulations 8,9 & 10 prescribe the eligibility.
Unless and until, that eligibility is possessed, admission to an examination is impossible.
The High Court has taken a view that since the duration of the Course is four years, this Regulation must be so construed as to fit in within those four years.
This is wrong.
Regulation 11 talks of re admission to an examination.
That Regulation has nothing to do with the eligibility prescribed under Regulation 8 to 10.
In other words, Regulation 11 cannot control the operation of these Regulations.
Regulation 11 (iv) talks of supplementary examination.
In that supplementary examination, it is open to a candidate to pass in a subject or subjects in which he has failed.
When he so passes, Clause (v) of that Regulation states that he shall be declared to have passed at the examination as a whole.
Even thereafter, if he fails in the subject or subjects at the supplementary examination and he has to appear in the examination in the failed subject or subjects at the next annual examination, Clause (vi) prescribes: i) Production of a certification; ii) In addition, if he had put a necessary attendance, a further course of study in the subject or subjects in which he had failed, the minimum number of chances as per this clause are only four.
If he fails to complete the subjects within these four chances, he will have to prosecute a further course of study in all the subjects of all parts for one year, in other words, he has to start the course afresh and appear for examination in all the 314 subjects.
Thus, it will be clear that all these Regulations talk of re admission to an examination in Order to enable the failed Candidate to undergo supplementary and subsequent examinations.
On completion of subject in any one of those examinations within the four chances, he is declared to have passed the whole examination.
On this count, it is incorrect to hold that passing in the supplementary examination relates back to the original examination.
A careful reading of Regulation 9 requires the satisfaction of the following conditions for appearing in the Second Year D.H.M.S. examination: i) The candidate had passed the First D.H.M.S. examination at the end of one year previously.
This means, there must be a gap of one year between the passing of First year examination and appearing in the Second year examination; ii) Subsequent to the passing of the examination, must have attended the courses of instruction for a period of at least one year.
Therefore, a candidate who fails in the first year examination in a subject or subjects, if he passes any supplementary examination cannot take the Second year examination at the next academic year.
This is because, one year duration had not elapsed between the passing of First year examination in the supplementary examination and taking the Second year examination.
Worse is a case where a candidate passes the First Year examination at the third or fourth attempt.
The High Court has gone wrong in its construction on Regulation 11 that if a candidate passes a supplementary examination, the insistence of one year would require the candidate to wait for one more year.
Therefore, he would inevitably have to study for the next year course from the next academic session.
No doubt, the candidate who passes the supplementary examination will have to sit idle till the next academic session.
That is his own making.
On that score, the attempted harmonious construction by the High Court cannot be supported.
The learned Solicitor General finally submits that none of the Regulations indicate 'a carry forward scheme ' of the subjects.
On the contrary, it is a case of detention every year.
Accordingly, he submits that the Civil Appeals deserve to be allowed.
Mr. Ranjit Kumar, learned counsel in opposition to this, would urge that the interpretation placed by the High court on Regulations 8 to 10 is collect.
Otherwise, no useful purpose would be served by conducting a supplementary examination.
Equally, four chances afforded to the candidate could be rendered nugatory if the interpretation as stated by the learned solicitor General is accepted.
315 Regulation 11 has to be read along with Regulations 8 to 10.
It is not correct to argue that Regulation 11 has nothing to do with admission to an examination.
As a matter of fact, declaration of result of supplementary examination of First D.H.M.S. examination was made on 31.10.1989.
The next annual examination was held in January, 1990 within 2 1/2 months.
The respondents passed the course of First and Second D.H.M.S. examinations.
The result of Second Year D.H.M.S. supplementary examination was declared in January, 1991.
In view of such an inordinate delay in the conduct of examinations, the appellant cannot contend that one year period must elapse between First and Second D.H.M.S. examinations and that the Regulations should have been strictly obeyed.
The Regulations do not say that after First D.H.M.S. examination, a student cannot study for Second D.H.M.S. course and sit for examination provisionally.
The declaration of result for the Second D.H.M.S. course takes place only after he had cleared the First D.H.M.S examination.
As rightly held by the High Court, the word 'supplementary '.
denotes supplementing to or in continuation of the annual examination.
Where , therefore, provisional admission is given for the Second Year D.H.M.S, course, the failure to complete he First D.H.M.S. examination should not be put against the respondent.
If the Regulations are so literally interpreted, that will lead to absurdity.
It will run counter to the object of providing a supplementary examination.
This interpretion is holding the field for a long time.
This was the reason why in Jaininder Mohan and Others vs The council of Homeopathic System of Medicine.Punjab (1992) 1 I.L.R. Punjab 159, the court took a view that passing in the supplementary examination will relate back to the date of annual examination.
Otherwise, as rightly pointed out by the High Court, anamolous results would follow.
In so far as the respondents have completed the examination, equities must weigh in their favour as laid down by this Court in A. Sudha vs University, of Mysore and another ; , Chandigarh Administration & Ors.v Manpreet Singh & Ors. ; , Shirish Govind Prabhudesai vs State of Maharashtra The learned counsel also relies on Orissa Homeopathic Regulations and contends that carry forward is permitted in similar Homeopathic Regulations.
In order to appreciate the respective contentions, we have to analyse the relevant Regulations relating to the Diploma Course in Homeopathy as contained Homeopathy (Diploma course) DHMS Regulations, 1983.
These Regulations are statutory in character in so far as they have come to be framed in exercise of powers conferred under Clauses (i) , (j) & (k) of Section 33 and sub section (1) of Section 316 20 of Homeopathy Central Council Act.
Under Section 20, the Central Council may prescribe the minimum standards of education in Homeopathy required for granting recognised medical qualifications by Universities, Boards and Medical Institutions in India.
Section 33 speaks of powers to make Regulations.
The relevant clauses are (i), (j) & (k).
They are to the following effect. "(i) The courses and period of study of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in any University, Board or Medical institution for grant of recognised medical qualification; (j)the standards of staff, equipment, accommodation, training and other facilities for education in Homeopathy; (k)The conduct of professional examinations, qualifications of examiners and the conditions of admissions to such examinations;" Therefore, the Central council constituted under Section 3 of the Act has power to make Regulations under Section 33 (k) regarding the conditions of admission to the examination.
The very object of this Act is to prescribe minimum standards for admission, duration of course of training, details of curriculum and syllabus of study and the title of degree or diploma.
Since they very from State to State and even from Institute to Institute within a same State, it had become necessary to constitute a Central Council.
The Advisory Committee prescribed a course of four years.
Accordingly, in Regulation 3(i), it is provided that a Diploma Course in Homeopathy shall comprise a course of study, spread over a period of four years.
This includes the compulsory internship of six months duration after passing the final Diploma examination The Regulations contain eligibility to admission, the curriculum, the syllabus etc.in the various parts.
Part VI deals with examination.
Regulation 8 talks of First D.H.M.S. examination.
It is stated in clause (i) : "A candidate may be admitted to the First D.H.M.S. examination provided that he has regularly attended the following course of instruction, theoretical and practical for a period of not less than 12 months at a Homeopathy College to the satisfaction of the head of the college".
317 From the above, it is clear for admission to the First D.H.M.S. examination: i)a student must have regularly attended the courses of instruction, theoretical and practical; ii) for a period of not less than 12 months; iii) to the satisfaction of the head of the College.
As regards the Second D.H.M.S. examination, Regulation 9 takes care.
That states in Clause (i) : "No candidate shall be admitted to the Second D.H.M.S examination unless: a) he has passed First D.H.M.S. examination at the end of one year previously, and b) he has regularly attended the following courses of instruction both theoretical and practical in the subjects of examination for a period of at least one year subsequent to his passing First D.H.M.S. examination from a recognised Homeopathic College to the satisfaction of the head of the college.
" Here again, eligibility for admission to Second D.H.M.S. examination is based on two conditions: i) A student has passed his First D.H.M.S. examination at the end of one year previously.
This means one year must elapse between the passing of the First year examination and taking of Second Year Examination.
ii) Subsequent to the passing the First year a) he must have regularly attended the courses both theoretical and practical; (b) for a period of at least one year; (c) to the satisfaction of the head of the College.
Thus, unless and until, these two conditions are satisfied, a student is 318 ineligible for admission to the Second D.H.M.S. examination.
Clause (iii) states that the Second D.H.M.S. examination shall be held at the end of two years of D.H.M.S. course.
The Third D.H.M.S. course is provided for under Regulation 10.
That reads as follows: "No candidate shall be admitted to the Third D.H.M.S. examination unless: (a) he has passed the second D.H.M.S. examination at the end of 1 1/2 years previously, and (b) has regularly attended the following courses of instructions both theoretical and practical in subjects of examination for a period of at least 11/2 years subsequent to his passing the Second D.H.M.S examination in a recognised Homeopathic College to the satisfaction of the head of the College.
" Here again, the conditions for eligibility for admission to Third D.H.m.s examination are: i) After passing the Second D.H.M.S. examination,one and a half years must have elapsed before taking the Third D.H.M.S examination.
ii) Subsequent to the passing of the Second D.H.M.S. examination: a) he must have regularly attended the courses both theoretical and practical" b) for a period of 11/2 years; c) to the satisfaction of the college.
Thus, it will be clear that the pattern of the examination is as rightly urged by the learned Solicitor General : 12 months for First D.H.M.S. examination, 12 months for Second D.H.M.S. examination and 18 months for Third D.H.M.S examination.
These put together with six months of compulsory internship, make up the four years prescribed for the Course in Regulation 3.
One thing that carefully requires to be noticed is that all the three Regulations 319 8 to 10 speak of admission to an examination, First, Second and Third year respectively.
This is entirely different from admission to a course we find great force in this submission of the learned Solicitor General.
The course of study may consist of four years, but that has nothing to do with the scheme of examination.
Now, we come to Regulation 11.
That requires to be reproduced in full: "(i) Every candidate for admission to an examination shall send to the authority concerned his application in the prescribed form with the examination fee at least 21 days before the date fixed for the commencement of the examination.
(ii)As soon as possible after the examination the examining body shall publish a list of successful candidates arranged in the following manner: (a)the names and roll numbers of the first ten candidates in order of merit, and (b) the roll number of others arranged serially.
(iii)Every candidate shall on passing the examination receive a certificate in the form prescribed by the examining body concerned.
(iv) A candidate who appears at the examination but fails to pass in a subject or subjects may be admitted to supplementary examination in the subject or subjects of that part of the examination in which he has failed to be held ordinarily after six weeks from the publication of result of the first examination on payment of the prescribed fee along with an application in the prescribed form.
(v) If a candidate obtains pass marks in the subject or subjects at the supplementary examination or the subsequent examination, he shall be declared to have passed at the examination as a whole, (vi) If such a candidate fails to pass in the subject or subjects at the supplementary examination in the subject or subjects concerned, he may appear in that subject or subjects at the next annual examination on production of a certification in addition to the certificate required under the regulations, to the effect that he had attended to the satisfaction of the Principle,a further course of study for a period 320 of next academic year in the subject or subjects in which he had failed, provided that all the parts of the examination shall be completed within four chances including the supplementary one, to be counted from the date when the complete examination becomes due for the first time.
(vii)If a candidate fails to pass in all the subjects within the prescribed four chances, he shall be required to prosecute a further course of study in all the subjects of all parts for one year to the satisfaction of the head of the college and appear for examination in all the subjects.
Provided that if a student appearing for the Third D.H.M.S. Hom.examination has only one subject to pass at the end or prescribed chances, he shall be allowed to appear at the next examination in that particular subject and shall complete the examination with this special chance.
(viii)All examinations shall be held on such dates, time and places as the examining body may determine.
(ix) The examining body may under exceptional circumstances partially or wholly cancel any examination conducted by it under intimation to the Central Council of Homeopathy and arrange for conducting reexamination in those subjects within a period of thirty days from the date of such cancellation."
This Regulation deals with results and readmission to an examination.
A close reading of the above brings out the following: In clause (iv) as to what is to happen in the event of a candidate failing to pass in a subject or subjects is spoken to.
He may be admitted to the supplementary examination.
Such a supplementary examination is to ordinarily take place after six weeks from the publication of result of First Examination.
Supposing he passes in that subject or 'subjects in the supplementary examination he is declared to have passed at the examination as a whole.
This should obviously be so; because once he completes all the subjects, he has to necessarily be declared to have passed.
Merely on this language, "declared to have passed at the examination as a whole", we are unable to understand as to how the 321 "doctrine of relation back" could ever be invoked.
The invocation of such a doctrine leads to strange results.
When a candidate completes the subjects only in the supplementary examination, then alone, he passes the examination.
It is that pass which is declared.
If the "doctrine of relation back" is applied, it would have the effect of deeming to have passed in the annual examination, held at the end of 12 months, which on the face of it is untrue.
With this, we pass on to clause (vi) which deals with the stage where the candidate had failed in the First Annual Examination in a subject or subjects and he had not passed in that subject or subjects in the supplementary examination also.
The next annual examination arrives.
The appearance in that examination is conditioned upon production of two certificates: i)A certificate required under the Regulations to the effect that he had attended to the satisfaction of the Principle; ii)A certificate to the effect that he had undergone a further course of study for a period of next academic year in subject of subjects in which he had failed.
Whatever it is, a candidate has to complete all the subjects within four chances.
Should he fail to do so, he will have to undergo the course in all subjects for one yea, unless of course, he gets the exemption as stated in proviso to Clause (vii).
Nowhere do, we find in Regulation 11 system of carry forward '.
On the contrary, it is detention every year.
The High Court was moved by the fact that if a candidate were to pass in supplementary examination after passing the examination, he will have to remain at home till the next annual examination.
So, he is allowed to undergo a course for next academic year provisionally.
On this line of reasoning, clause (iv) & (vi) of Regulation II are sought to be "harmoniously construed '.
We are unable to accept this line of reasoning or the so called harmonious construction because it does violence to the language of the Regulation.
It clearly violates the mandatory requirements of Regulation 9.
It has already been noted as to what those requirements are.
To repeat: i) The lapse of one year period between the passing of First D.H.M.S. examination and taking the Second D.H.M.S. examination.
ii) Subsequent to the passing of the First D.H.M.S. examination to undergo the course of study for one year.
Therefore, if a candidate passes in the supplementary examination, the requirement of one year cannot be enforced.
Worse still is 322 a case of a student who passes only at the next annual examination.
Could he be allowed to take the Second D.H.M.S. examination without even completing the First?
Should he by chance pass the Second D.H.M.S. and not complete the First, since he is still one more chance to take this examination, what is to happen? The situation is absurd.
The same principle should apply to Regulation 10 where the lapse is one and half years.
The word 'supplement ' is defined in Oxford Dictionary, Seventh Edition, page 1072: "think added to remedy deficiencies; part added to book etc, with further information, or to periodical for treatment of particular matter(s) of an angle,(Math.)its deficiency from 180(of.COMPLEMENT); hence Al, ARY, (mem) adjs.(supplementay benefit).
[ME,f.L. sup (plementum f plere fill; see ment]" Therefore,the adjective 'supplementary ' means and examination to makeup the deficiencies.
it stands to reason only when deficiencies are made up, the whole becomes complete.
On this score to say that passing the supplementary examination would relate back to the annual examination will be totally incorrect.
What counts is when the whole is made up.
From that time of making up one year or one and half years must elapse for second or Third D.H.M.S. examinations as the case Amy be.
The stand of the appellants counsel as seen from letter dated 12.12.1989 is as follows: "From: Dr. P.L. Verma, Secretary, Central Council of Homeopathy, 10, Community Centre, Basant Lok, Vasant Vihar, New Delhi 110037.
TO The Chairman, The Council, Homoeopathic Systems of Medicine, 3027 28, Sector 22 D, Chandigarh.
323 Sub:Enforcement of D.H.M.S (Diploma Course) Regulation 1983 w.e.f.1983 84 Academic Sessions students demand for grant of provisional promotion with reappearance in only one subject to the next higher class even beyond supplementary examination even prior to his passing the lower class examination as a whole.
With reference to your letter No. CHSM PV 134 /89/1253 dated 29/ 30 November, 1989 on the subject noted above.
I am to say that the question of permitting to appear simultaneously for two examinations i.e. lower reappear subjects and complete subjects of the next higher class does not arise as no candidate has to be admitted to the Second D.H.M.S. examination unless he had passed the first D.H.M.S. examination at the end of one year previously and has regularly, attended the course for one year.
Similarly, no candidate shall be admitted to the Third D.H.M. section examination unless he has passed the second D.H.M.S. examination 1 1/2 years previously and has also attended the course for a period of 1 1/2 years subsequent to his passing of the Second D.H.M.S. Examination.
COUNCIL OF HOMOEOPATHIC SYSTEM OF MEDICINE 3027 28, Sector 22 D CHANDIGARH (UT) No. CHCH PV 9134/89/AT 198 200 Dated 5.2.90 Copy forwarded to the Principal, Lord Mahaveera Homeopathic Medical College, Ludhiana/Abohar/Chandigarh for information and necessary action.
This may please be notified for information of all the students under intimation to the undersigned.
The above guidelines/directions of the Central Council may please be strictly followed and observed in respect of matters indicated therein.
sd/ (R.K. Sharma) Registrar, No.CHMS/PV/134/89/AI 201 210 Dated 5.2.90.
" This stand in our opinion is correct.
If a student were to sit idle at home after passing the supplementary 324 examination that is his own making.
To avoid such a situation, the Regulation cannot be construed causing violence to the language.
These Regulations are plain enough and are susceptible only to literary interpretation.
In 'Maxwell on the Interpretation of Statutes ' 12th Edition, it is stated at page 29 as under: "Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise.
"The decision in this case," said Lord Morris of Borth y Gest in a revenue case, "calls for a full and fair application of particular statutory language to particular facts as found.
The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision." (Shop and Store Developments Ltd. vs I.R.C. (1967) 1 A.C. 472).
Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be.(Cartledge vs E. Jopling & Sons, Ltd.)
The interpretation of a statue is not to be collected from any notions which may be entertained by the court as to what is just and expedient: (Gwynne vs Burnell Words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded.
(Whitehead vs James Stott Ltd. The duty of the court is to expound the law as it stands, and to "leave the remedy (if one be resolved upon) to others." (Sutters vs Briggs We construe the Regulations as they stand without introducing any element of ambiguity or absurdity.
The manner in which the respondents have passed the examination is set out in the following tabulated statement: "C.W.P. No. 13926 of 1991 Miss Kamaljit & eight others of L.M. Homoeopathic Medical College, Ludhiana.
1st prof.Annual/88 Supp/88 Annual/89 Respondent No. Re appear Re appear Pass 325 1, Miss Kamaljit in 3 in 2 Contd.d/o Sawam subjects subjects Singh (Admitted in 1987) Resp.2, Re appear pass Sh.Narinder in 2 Contd Kumar s/o subjects Satya Pal Goyal (Admitted in 1987) Resp.No. 3 Shri Re appear pass Contd.Mohd Ramzan in 3 Thind s/o SH. subjects Moh. Yousaf (Admitted in 1987) Resp No.4 Shri Re appears Re appears pass " Naresh Kumar in 3 subjects in 2 subjects Resp.No.5 Shri Re appear Re appear pass " Jaininder Mohan in 2 in 1 s/o Shri Sham Lal subjects subject (Admitted in 1987) Resp.No. 6 Shri Re appear Re appear pass " Kulbir Singh s/o in 3 in 2 Sh.
Tattan Singh subjects subjects (Admitted in 1987) Res.No. 7 Re appear pass " Narinder Singh in1 s/o Sh.Sant subject Singh (Admitted in 1987) Res.
No. 8 Inderjit Mehta d/o Anant Ram Mehta (Admitted in 1987) Resp.No. 9 Fail Re appear pass
Tejvinder Singh, in1 s/o Jaswant Singh (Admitted in 1987) 326 Continued Part IInd Prof. (CWP No. 481of 1991)
3rd Prof. (CWP No: 13926/91) Suppl./89 Annual/90 Suppl/91 Re appear Re appear Re appear Allowed to appear in 3 in 3 in1 as per court subjects subjects subject order dt.6.9.91 by the Principal of L. Homoeopathic Medical College.
Re appear Re appear pass As per court in 3 in1 order dt.6.9.91 subjects subject (without court order)
Re appear Re appear pass Not appeared in 4 in 1 subjects subject
Re appear Re appear pass As per court in 3 in1 orderdt 6.9.91 Fail
Re appear pass As per court in 2 order subjects dt.6.9.91 Re appear Re appear pass
As per court in 1 pass Order subject dt.6.9.91 Re appear Re appear pass Allowed to in 2 in 2 appear as subjects subjects per Court order dt.6.9.91"
Mr. Ranjit Kumar pleads before us that equities must weigh in favour of students.
With reference to that plea, we hold that he students who had completed the whole course, attended all the courses of study for the three sessions of 12 months, 12 months and 18 months respectively and had passed all the examinations in all the subjects, though not in the sequential order required by the 327 regulations, it appears to us that the submission of the counsel for the respondents that they being required to go through the courses all over again and take the examinations after attending the courses afresh, might lead to hardship and might require consideration.
In the words of Anne Sophie Swetchine: "The world has no sympathy with any but positive griefs; it will pity you for what you lose, but never for what you lack.
We think that their cases may perhaps have to be examined from the point of these equities by the Council of Homeopathic System of Medicines.
The candidates who, as on today, have attended all the courses and have passed all the examinations might make an appropriate representation to the Council of Homeopathic System of Medicines (the appellant) to consider their cases.
The representation shall be filed within a period of four weeks from today.
The Council of Homeopathic System of Medicines (the appellant) will take appropriate decision within one month thereafter.
The Council in doing so shall bear in mind all the relevant circumstances, including, perhaps the spirit of the corresponding regulations under the Bihar Act, in which such sequential purpose is not insisted upon.
|
The respondents appeared in the first year D.H.MS (Diploma in Homeopathic Medicine and Surgery) annual examination in june,1988.They had to re appear as they did not get the required percentage of pass marks in two or more subjects.
They were permitted to join the second year class after June, 1988.
Under the interim orders of the High Court, they appeared in the second year annual examination.
Simultaneously, the respondents appeared in the first year D.H.MS.
examination and cleared all the papers.
After re appearing in one or more subjects in the second year Supplementary examination in June, 1990, they were declared passed in the 2nd year D.H.M.S. examination.
The respondents joined the third year D.H.M.S. course and completed the course of study.
When their examination forms were forwarded to the appellant Council, they declined to permit the respondents to appear in the 3rd year D.H.M.S. annual examination, because they did not complete one year course of study between passing the first D.H.M.S. examination and appearing in the second year course.
The respondents preferred a writ petition before the High Court to direct the appellants to permit them to appear in the third year DHMS examination, commencing from 3.9.1991.
Following the view taken in the decision of the Court in C.W.P. No 2307/ 88.
Gurinder pal Singh vs Punjabi University & Ors., which was followed in Harinder Kaur Chandok (Minor) v The Punjab School, Education Board through its Secretary, , the High court allowed the writ petition of the respondents.
Against that order of the High Court, the appeal (C.A.No. 2107/93) was filed by special leave.
The appellants submitted that the High Court was wrong in its construction on regulation 11 of the Homeopathy (Diploma Course) DHMS Regulations, 1983; that if a candidate passed on supplementary examination, he would have to wait till the next academic session; that none of the Regulations indicated carry forward scheme of the subjects, but on the contrary,it was a case of detention every year.
The respondents urged that the interpretation placed by the High Courts on Regulations 8 to 10 was correct; that four chances afforded to the 308 candidate could be rendered nugatory, if the interpretation as stated by the appellants was accepted; that the Regulations did not say that after First D.H.M.S. examination, a student could not study for Second D.H.M.S. course and sit for examination provisionally; that the declaration of result for the Second D.H.M.S. course took place only after a student cleared the First D.H.M.S. examination; that if the Regulations were literally interpreted, that would lead to absurdity and it would run counter to the object of providing a supplementary examination.
As the other appeals (C.A.Nos.
2108 10/93) contained identical issue, all the appeals were heard and decided together.
Allowing, the appeals, this Court, HELD:1.1.
The Regulations 8 10 of the Homeopathy (Diploma Course) DHMS Regulations, 1983 are plain enough and are susceptible only to literary interpretation.
Maxwell:Interpretation of Statutes, 12th Edition, Page 29, referred to.
1.2.For admission to the First D.H.M.S. examination: i)a student must have regularly attended the courses of instruction, theoretical and practical; ii) for a period of not less than 12 months; iii) to the satisfaction of the head of the College.
(317 B) 1.3.
Eligibility for admission to Second D.H.M.S. examination is based on two conditions: i) A student has passed his First D.H.M.S. examination at the end of one year previously.
This means one year must elapse between the passing of the First year examination and taking of Second Year Examination.
ii) Subsequent to the passing the First year 309 a) he must have regularly attended the courses both theoretical and practical; b) for a period of at least one year; c) to the satisfaction of the head of the College.
(317 F G) Thus, unless and until, these two conditions are satisfied, a student is ineligible for admission to the Second D.H.M.S. examination.
(317 H, 318 A) 1.4 The conditions for eligibility for admission to Third D.H.M.S examination are: i) After passing the Second D.H.M.S examination, one and a half years must have elapsed before taking the Third D.H.M.S. examination.
ii) Subsequent to the passing of the Second D.H.M.S. examination: a) he must have regularly attended the courses both theoretical an practical; b) for a period of 11/2 years; c) to the satisfaction of the college.
(318 F G) 1.5.
Mandatory requirements of Regulation 9 are; i) The lapse of one year period between the passing of First D.H.M.S. examination and taking the Second D.H.M.S. examination.
ii) Subsequent to the passing of the First D.H.M.S. examination to undergo the course of study for one year.
(321 G) 1.6.
Therefore, if a candidate passes in the supplementary examination, the requirement of one year cannot be enforced.
Worse still is a case of a student who passes only at the next annual examination.
Could he he allowed to take the Second D.H.M.S. examination without even completing the First? Should he by chance pass the Second D.H.M.S. and not complete the First, since he has still one more chance to take this examination, what is to happen? 310 The situation is absurd.
The same principle should apply to Regulation 10 where the lapse is one and half years.
(321 H, 322 A) 1.7.The pattern of the examination is: 12 months for First D.H.M.S. examination, 12 months for Second D.H.M.S. examination and 18 months for Third D.H.M.S examination.
These put together with six months of compulsory internship, make up the four years prescribed for the Course in Regulation 3.
(318 G) 1.8.When a candidate completes the subjects only in the supplementary examination, then alone, he passes the examination.
It is that pass which is declared.
If the "doctrine of relation back" is applied, it would have the effect of deeming to have passed in the annual examination, held at the end of 12 months, which on the face of it, is untrue.
(321 A) 1.9.Whatever it is, a candidate has to complete all the subjects within four chances.
Should he fail to do so, he will have to undergo the course in all subjects for one year unless of course, he gets the exemption as stated in proviso to Clause (vii).
In Regulation 11 there is no 'system of carry forward '.
On the contrary, it is detention every year.
Harmonious construction violates the mandatory requirements of Regulation 9.
(321 E F) 1.10.If a student were to sit idle at home after passing the supplementary examination that is his own making.
To avoid such a situation, the Regulation cannot be construed causing violence to the language.
(323 H, 324 A) 1.11.The candidates who, as on the day of Judgment of these appeals, have attended all the courses and have passed all the examinations might make an appropriate representation to the Council of Homeopathic System of Medicines (The appellant) to consider their cases.
The representation shall be filed within a period of four weeks.
The Council of Homiopathic System of Medicines (the appellant) will take appropriate decision.
(327 C) 2.
The adjective 'supplementary ' means an examination to make up the deficiencies.
Thus, it stands to reason only when deficiencies are made up, the whole becomes complete.
(322 D) Oxford Dictionary, Seventh Edition, page 1072, referred to.
(322 B)
|
ivil Appeal No. 1312 of 1990.
From the Judgment and Order dated 6.7.
1988 of the Rajasthan High Court in D.B. Civil W.P. No. 71/77.
section Hegde, Additional Solicitor General, A. Subba Rao for C.V.S. Rao for the Appellants.
S.C. Birla for the Respondent.
The Judgment of the Court was delivered by 762 K. JAGANNATHA SHETTY, J.
Special leave granted.
Bakshi Ram respondent was a constable in the Central Reserve Police Force at Devli in Rajasthan.
On 17th March 1971 at about 8.45 p.m. he along with another constable forced entry into the room of Garib Das the constable of the CRP Group Centre band platoon.
Garib Das was then not present in the room.
His wife Savitri Devi who was inside tried to prevent their entry, but in vain.
Both the consta bles caught hold of her and misbehaved with her.
The respondent was tried for an offence under Section 10(1) of the .
Section 10 of the Act sets out less heinous offences and Section 10(1) refers to any act or omission which, though not speci fied in the Act, is prejudiciable to good order and disci pline.
On the evidence adduced in the case he was found guilty of the charge and by judgment dated 23rd March 1971 he was sentenced to four months R.I. by the Magistrate 1st Class and Commandant Group Centre, CRPF, Deoli (Rajasthan).
He was lodged in the Civil Jail, Jaipur to undergo the sentence.
In view of his conviction and sentence.
, the Department by way of disciplinary action dismissed him from service.
This action was taken when his appeal against the conviction and sentence was pending before the Sessions Judge.
The learned Judge by judgment dated 22 September 1971 upheld the conviction but released him under the ("the Act").
Apparently he was released under Section 4 of the Act upon furnishing bonds to keep peace and be of good behaviour for a period of six months.
The re spondent complied with those conditions.
After expiry of the period of good conduct, he moved the High Court with Writ Petition under Article 226 of the Constitution challenging his dismissal from service.
The High Court relying upon Section 12 of the Act has set aside the dismissal and di rected that he should be reinstated into service with all consequential benefits.
The High Court has expressed the view that the sole reason for dismissal of the respondent was his conviction under Section 10(1) of the Central Re serve Police Force Act but in view of Section 12 of the Probation of Offenders Act, 1968, there was no disqualifica tion for him to continue in service.
This is how the High Court observed: "The clear language of Section 12 of the Probation of Of fenders Act, 1958 which provides that a person dealt with under the provisions of Section 3 or Section 4 of that 763 Act shall not suffer disqualification, if any, attaching to a conviction under any law, notwithstanding anything con tained in any other law.
This provision has the effect of removing disqualification attaching to the petitioners ' conviction under Section 10(n) of the C.R.P.F. Act.
Section 12 of the Probation of Offenders Act dealing specifically with this situation clearly provides that the provisions therein is 'notwithstanding any thing contained in any other law. ' Hence, effect has to be given to the same.
" The judgment of the High Court has been challenged in this appeal.
Since the result of the appeal turns on the scope and meaning of Section 12 of the Probation of Offenders Act, it is necessary to set out the Section.
Section 12 is in these terms: "12.
Removal of disqualification attaching to conviction Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer dis qualification, if any, attaching to a conviction of an offence under such law, Provided that nothing in this section shall apply to a person who, after his release under Section 4, is subse quently sentenced for the original offence.
" Section 3 of the pro vides power to the Court to release certain offenders after admonition.
Section 4 provides power to the Court to release certain offenders on probation of good conduct.
Under the disposition made by the Court under Section 4 the sentence is suspended during the period of probation and the offender is released on his entering into a bond to keep peace and be of good behaviour.
Section 9 provides for procedure in case of offender failing to observe conditions of bond.
The Court, if satisfied, that the offender has failed to observe any of the conditions of bond for keeping good behaviour could sentence him for the original offence or where the failure is for he first time, then, without prejudice to the continuance in force of the bond, the Court may impose upon him a penalty not exceeding fifty rupees.
764 It will be clear from these provisions that the release of the offender on probation does not obliterate the stigma of conviction.
Dealing with the scope of Sections 3, 4 and 9 of the , Fazal Ali, J., in The Divisional Personnel Officer, Southern Railway and Anr.
T.R. Challappan etc.
, at 596 speaking for the Court observed: "These provisions would clearly show that an order of re lease on probation comes into existence only after the accused is found guilty and is convicted of the offence.
Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order or release on proba tion of the offender.
The order of release on probation is merely in substitution of the sentence to be imposed by the Court.
This has been made permissible by the Statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals.
The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is retained by the criminal court and where it is satisfied that the condi tions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence.
This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on proba tion.
Under sections 3, 4, or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof.
In these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.
" As to the scope of Section 12, learned Judge went on (at 596): "It was suggested that Section 12 of the Act completely obliterates the effect of any conviction and wipes out the disqualification, attached to a conviction of an offence under such law.
This argument, in our opinion, is based on a gross misreading of the provisions of Section 12 of the Act, the words "attaching to a conviction of an offence 765 under such law" refer to two contingencies: (i) that there must be a disqualification resulting from a conviction and (ii) that such disqualification must be provided by some law other than the .
The Penal Code does not contain any such disqualification.
Therefore, it cannot be said that section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused.
It is also manifest the disqualification is essentially differ ent in its connotation from the word 'misconduct '." In criminal trial the conviction is one thing and sen tence is another.
The departmental punishment for misconduct is yet a third one.
The Court while invoking the provisions of Section 3 or 4 of the Act does not deal with the convic tion; it only deals with the sentence which the offender has to undergo.
Instead of sentencing the offender, the Court releases him on probation of good conduct.
The conviction however, remains untouched and the stigma of conviction is not obliterated.
In the departmental proceedings the delin quent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (See Article 311(2)(b) of the Constitution and Tulsiram Patel case: [1985] Supp.
2 SCR 131 at 282).
Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law.
The section was not intended to exonerate the person from departmental punish ment.
The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise.
That seems obvious from the lerminology of Section 12.
On this aspect, the High Court speak with one voice.
The Madras High Court in R. Kumaraswami Aiyer vs The Commission er, Municipal Council Tiruvannamalai and Anr., [1957] Crl.
L. J. 225 Vol.
58 and Embaru (P) vs Chairman Madras Port Trust, Mad., the Andhra Pradesh High Court in A. Satyanarayana Murthy vs Zonal Manager, L.I.C., AIR 1969 AP 371, the Madhya Pradesh High Court in Prem Kumar vs Union of India and Ors., [1971] Lab & Ind. cases 823, the Punjab & Haryana High Court in Om Prakash vs The Director Postal Services (Post and Telegraphs Deptt.) Punjab Circle, Ambala and Ors., The Delhi High Court in Director of Postal Services and Anr.
vs Daya Nand, have expressed the same view.
This view of the High Courts in the aforesaid cases has been approved by this Courtin T.R.Challappan 's case 766 In Trikha Ram vs
V.K. Seth and Anr., [1987] Supp.
SCC 39 this Court after referring to section 12 has altered the punishment of dismissal of the petitioner therein into "removal from service", so that it may help him to secure future employment in other establishment.
Section 12 is thus clear and it only directs that the offender "shall not suffer disqualification, if any, attach ing to a conviction of an offence under such law".
Such law in the context is other law providing for disqualification on account of conviction.
For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands removed.
That in effect is the scope and effect of Section 12 of the Act.
But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstate ment upon getting the benefit of probation of good conduct.
Apparently, such a view has no support by the terms of Section 12 and the order of the High Court cannot, there fore, be sustained.
In the result the appeal is allowed.
The impugned order of the High Court is set aside.
However, we alter the penal ty of dismissal from service into 'removal from service ' as it was done in Trikha Ram 's case.
In the circumstances of the case, we make no order as to costs.
T.N.A. Appeal al lowed.
|
The respondent, a constable, convicted under section 10(n) of the but released on probation under section 4 of the , was dismissed from service.
He chal lenged his dismissal before the High Court which ordered his reinstatement holding that there was no disqualification for him to continue in service, for section 12 of the has the effect of removing the dis qualification attaching to his conviction.
Hence this appeal by the Union of India.
Allowing the appeal and setting aside the order of the High Court, this Court.
HELD: 1.
Section 12 of the only directs that the offender 'shall not suffer dis qualification, if any, attaching to a conviction of an offence under such law '.
Such law in the context is the other law providing for disqualification on account of conviction e.g. if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of section 12 stands re moved.
But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct.
Section 12 does not preclude the department from taking action for misconduct leading to the offence or to his conviction theron 761 as per law.
It was not intended to exonerate the person from departmental punishment.
[766B C; 765E] R. Kumaraswami Aiyer vs The Commissioner, Municipal Council Tiruvannarnalai and Anr., ; Embaru (P) vs Chairman Madras Port Trust, Mad; A. Satyanarayana Murthy vs Zonal Manager L.I.C., AIR 1969 A.P. 371; Prern Kumar vs Union of India & Ors., [1971] Lab.
& Ind. Cases 823; Om Prakash vs The Director Postal Services & Ors., and Director of Postal Services & Anr.
vs Daya Nand, , approved.
The Divl.
Personnel Officer Southern Railway & Anr.
T.R. Challappan, , followed.
In criminal trial the conviction is one thing and sentence is another.
The departmental punishment for miscon duct is yet a third one.
The Court while invoking the provi sions of section 3 or 4 of the Act does not deal with the conviction; it only deals with the sentence which the of fender has to undergo.
Instead of sentencing the offender, the Court releases him on probation of good conduct.
The conviction, however, remains untouched and the stigma of conviction is not obliterated.
In the departmental proceed ings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his con viction on a criminal charge.
Therefore the question of respondent 's restatement into service does not arise.
Howev er, the penalty of dismissal from service is altered into removal from service.
[765C D, F; 766E] Tulsi Ram Patel vs Union of India, [1985] Suppl.
2 SCR 131 and Trikha Ram vs
V.K. Seth & Anr., , followed.
|
Appeal No. 1249 of 1967.
Appeal from the judgment and decree dated July 21, 1967 of the Delhi High Court in Regular First Appeal No. 166 D of 1965.
A.K. Sen, Rameshwar Nath, P. L. Vohra and Mahinder Narain, for the appellant.
Bishan Narain, Radhey Mohan Lal and Harbans Singh, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
This appeal arises out of a suit for ejectment instituted by a landlord against a tenant.
It is common case that the suit is governed by the provisions of ' the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) hereinafter referred to as the Act.
The material provisions of section 13(1) of the, Act are as follows : "13.
(1) Notwithstanding anything to the contrary contained.
in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) : Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied (b)that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act, (i)sub let, assigned or otherwise parted with the possession of the whole or any part of the premises; or 550 (ii) used the premises for a purpose other than that for which they were let; or, (c) that the tenant without obtaining the consent of the landlord has before the commencement of this Act, (i)sub let, assigned or otherwise parted with the possession of, the whole or any part of the premises;, or (ii)used the premises for a purpose other than that for which they were let; or (k)that the tenant has, whether before or after the commencement of this Act, caused or permitted to be ,caused substantial damage to the premises, or notwithstanding previous notice has used or dealt 'with the premises in a manner contrary to any condition imposed on the landlord by the Government, or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situated;" The respondent constructed the building known as the Hotel Imperial, New Delhi, on land leased to him by the Secretary of State for India in Council under a perpetual lease deed dated July 9, 1937.
By a deed dated August 18, 1939, he leased to the appellant the hotel premises together with fittings and furniture for a term of 20 years commencing on September 15, 1939.
On January 28, 1958, the respondent instituted the present suit alleging that in breach of the express conditions of the lease dated August .18, 1939, the appellant sub let portions of the premises and made unauthorised additions and alterations in the premises, that on such breaches he was entitled to determine the lease and he did so, by notice in writing dated January 6, 1958.
He claimed eviction of the appellant on the grounds mentioned in cls.
(b), (c) and (k) of the proviso to section 13(1) of the Act.
The appellant filed its written statement on April 3, 1958 denying most of the material allegations in the plaint.
The appellant also pleaded that the respondent had waived the breaches, if any, of the conditions of the lease by accepting rents with knowledge of such breaches and particularly by accepting rent on or about January 3, 1958.
On April 24, 1958, Sri P. L. Vohra, counsel for the appellant, made the following statement before the trial Court : "The plaintiff can seek ejectment of the defendant only under section 13 of Act 38 of 1952.
In case the 551 plaintiff succeeds in establishing the liability of, the defendant for ejectment on any of the grounds given in .section 13 of the Rent Act, the defendant would not seek any protection under the terms of the lease deed dated 18th August, 1939 executed between the parties, as regards the period of lease fixed therein.
" Having regard to the pleadings and statement of counsel, the Court settled the following issues on May 12, 1958 : "1.
Whether the defendant had sublet, assigned or otherwise parted with possession, of any part of the suit premises before the commencement of Act 38 of 1952 ? 2.
If so, was the same done with express or implied consent of the plaintiff ? 3.
Whether the defendant had sublet, assigned or otherwise parted with possession of any part of the suit premises after the commencement of Act 38 of 1952 ? 4.If so, was the same done with the prior consent in writing of the plaintiff ? 5.Whether the defendant has used the tenancy premises for a purpose other than that for which they were let ? 6.
Whether the defendant has caused substantial damage to the tenancy premises ? 7.
Whether the defendant notwithstanding previous notice has been.
using and dealing with the tenancy premises in a manner contrary to the conditions imposed on the plaintiff by, the Government while giving him lease of the site of the tenancy premises ? 8.
Is the defendant entitled to special cost ? 9.
Whether the plaintiff is estopped or has waived his right to seek ejectment of the defendant on any of the grounds mentioned above ? If so, what and to what effect ? 10.Whether the defendant is entitled to sublet any part of the hotel premises even when there was a clause to the contra in the lease dated the 18th August, 1939.
and in face of statutory provisions under the Rent Control Act (for reasons given in para 16 of the amended written statement) ?" A tenant holding premises under a subsisting lease is pro tected by the lease and needs no protection under the Rent Act.
It was open to the appellant to contend that it was protected by 552 the terms of the lease dated August 18, 1939, that the breaches, if any, of the conditions of the lease had been waived by the respondent and that the lease had not determined.
But the appellant deliberately elected to seek protection under section 13 of the Act only.
The appellant 's counsel made a ' formal statement in the trial Court that the appellant would not seek any protection under the terms of the lease deed as regards the period of the lease fixed therein.
The Court accordingly settled the ten issues.
Issue No. 8 was not pressed.
All the other issues relate to thegrounds of eviction mentioned in cls.
(b), (c) and (k) of theproviso to section 13(1) of the Act.
Issue No. 9 raises the question of waiver of the respondent 's right to seek ejectment on those grounds.
Thus, the only questions in issue between the parties was whether the appellant was entitled to protection from eviction under section 13 and whether any ground for eviction under the Act was made out.
The case was tried and decided on this footing.
We have come to this conclusion after a close examination of the 'pleadings, particulars, statement of counsel, issues and the judgment of the trial Court.
No issue was raised on the question whether the breaches of the express conditions of the lease had been waived by the respondent, and whether the lease was still subsisting.
The appellant sought to raise this plea in the High Court and also in this Court Having regard to the deliberate stand taken by the appellant in the trial Court, the appellant cannot be allowed to raise the plea at a later stage.
The lease determined by efflux of time on September 15, 1959.
Had the appellant taken the plea that the lease had not determined by forfeiture on the date of the institution of the suit, it is possible that the respondent might have filed another suit for ejectment of the appellant immediately after September 15, 1959.
Because of the stand taken by the appellant, it was not necessary for the respondent to file another suit.
This appeal must be decided on the footing that the lease had determined by forfeiture on the date of the institution of the present suit.
The respondent is entitled to a decree for eviction if any of the grounds mentioned in cls.
(b), (c) and (k) of the proviso to section 13(1) is made out.
The trial Court answered issue No. 5 in the negative.
With regard to all the other issues, the trial Court found in favour of the respondent, and held that the grounds of eviction mentioned in cls.
(b)(1), (c)(i) and (k) were proved.
With regard to the ground of eviction mentioned in cl.
(k), the trial Court held that the appellant was entitled to relief on certain conditions.
The trial Court, however, held that the respondent was entitled to an unconditional decree, for eviction on the ground of sub letting mentioned in cls.
(b)(i) and (c)(i).
The appellant preferred 553 an, appeal to the High Court.
The High Court agreed with all the findings of the trial Court, and dismissed the appeal.
The two Courts concurrently found that the appellant had sub let several rooms, counters, showcases and garages.
The two Courts found that the appellant had sub let rooms to (1) Pan American World Airways, (2) Mercury Travels, India (Private) Ltd., travel agents, (3) Indian Art Emporium, dealers in curios and jewellery, (4) Shanti Vijay and Co., dealers in jewellery, (5) Roy and James, hairdressers, (6) Sita World Travels, travel agents and (7) Ranee Silk Shop, dealers in saris and curios.
The businesses of the sub lessees were not confined to the residents of the hotel.
The letting to Pan American World Airways and Indian Art Emporium were before the commencement of the Act and the lettings to Mercury Travels, Shanti Vijay and Co., and Roy and James were after the commencement of the Act.
Sita Travels and Ranee Silk Shop were inducted as tenants after the institution of, the suit.
The entrances to the rooms were in ,the main corridor of the hotel on the ground floor.
The concurrent finding is that the occupants were given exclusive possession of the rooms occupied by them.
The appellant did not retain any control and dominion over the rooms.
It is possible that the keys of the apartments were sometimes left at the reception counter, but the evidence on this point was not convincing.
It was not a condition Of the grants that the keys would be left at the reception counter, or that the duplicate keys would be retained by the appellant.
The occupants were at liberty to take away the keys if they liked '.
The occupants availed themselves of the services of the hotel sweeper for, their own convenience.
The appellant retained control of the corridor, but it is common case before us that the entrance to the corridor was open day and night.
The occupants paid monthly sums to the appellant as the consideration of the sub leases.
The consideration though described as license fee was in reality rent.
The portion occupied by Roy and James has an interesting history.
It was formerly sub let to R. N., Kapoor.
In Associated Hotels of India Ltd. vs R. N. Kapoor(1), this Court held by a majority on a construction of the grant to R. N. Kapoor that he was a lessee and not a licensee.
Roy and James began to occupy this portion of the premises from February, 1955.
According to the appellant, the agreements with Roy and James, Mercury Travels and Shanti Vijay and Co., were in writing.
The appellant produced several documents in Court at an early stage of the suit.
The appellant 's case was that these documents were the relevant agreements.
According to the respondent, the documents were not genuine and the real agree (1) [196] 1 S.C.R. 36F 554 meats were being withheld.
The stamp auditor noted on the documents the deficiency in stamps and penalty leviable on them on the footing that they were lease deeds.
The appellant did not contest this note nor paid the penalty and deficiency as directed by the trial Court.
The surprising feature of the case is that the appellant did not attempt to prove any of the documents.
Where the agreement is in writing, it is a question of construction of the agreement whether the grant is a lease or a license.
It was for the appellant to prove the written agreements, and the Court could then construe them.
The appellant has not brought before the Court the best and the primary evidence of the terms on which the apartments were being occupied.
The onus to prove sub letting was on the respondent.
The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration.
The appellant chose not to rebut this prime facie evidence by proving and exhibiting the relevant agreements.
The documents formed part of the appellant 's case.
The appellant bad no right to withhold them from the scrutiny of the Court.
In the absence of the best evidence of the grants, the Courts below properly inferred sub lettings from the other materials on the record.
The test of exclusive possession, though not conclusive, is a very important indication in favour of tenancy, see Addiscombe Garden Estates Ltd. and Anr.
vs Crabbe and Ors.(1) The argument is that as the landlord is living in the premises, that fact raises the presumption that he intends to retain the control of the whole of the premises and that the occupation of the other parts is that of a lodger or inmate and not that of a tenant, and reliance was placed on Helman vs Horsham Assessment Committee(2) and the cases referred to therein.
Those cases consider what constitute rateable occupation.
In the case last cited, Denning, L. J. said that a person who is regarded as a lodger for rating purposes need not necessarily be a lodger for the purposes of the Rent Restriction Acts, while Evershed L.J. seems to have expressed a contrary opinion.
Normally, an occupier of an apartment in a hotel is in the position of a licensee as the hotel keeper retains the general control of the hotel including the apartment.
But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant.
Where, as in this case, the hotel keeper retains no control over the apart ment, the occupier is in the position of a tenant.
In Halsbury 's Laws of England, Vol. 23, article 1028, p. 433, the law is accurately summarised thus "A lodger who has no separate apartment is only a licensee, and, even though he has a separate apart (1) , 525.
(2) 555 ment, he has not in law an exclusive occupation, and is therefore in the position of a licensee, if the landlord retains the general control and dominion of the house, including the part occupied by the lodger; but, if in fact the landlord exercises no control over that part, the occupier is a tenant.
The occupier does not, however, become a lodger merely by reason of the fact that the landlord resides on the premises and retains control of the passages and staircases and other parts used in common.
" On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is has the landlord retained control over the apartment ? The fact that the apartment is a room in a hotel may lead to the inference that the hotel keeper retains the general dominion of the en tire hotel including the apartment and that the occupier is in the position of a lodger or inmate.
But the inference is not a necessary inference of law.
Where, as in this case, the best evidence of the rant was withheld from the scrutiny of the Court, the inference was rightly drawn that the occupiers were tenants.
At the hearing of this appeal, the appellant moved an appli cation for reception of the documents as additional evidence.
The genuineness of the documents was disputed by the respondent.
In the Courts below, the appellant made no attempt to prove these documents.
We found no ground for directing a new trial.
Having regard to all these facts, we dismissed the application.
The hotel building constitutes premises within the meaning of section 2(g) of the Act. ' It is because the hotel building constitutes Premises that the appellant can claim protection from eviction under the Act.
A room in a hotel is a part of the hotel premises.
A sub letting of a room in a hotel in contravention of cls.
(b) and (c) of the proviso to section 13(1 ) is a ground for eviction under the Act.
Section 2(g) provides that 'premises ' does not include " a room in a hotel or lodging house.
" The sub lessee of a room in a hotel is, therefore, not a tenant and cannot claim protection under section 13 from eviction, nor can he ask for fixation of standard rent.
see Associated Hotels of India Ltd. vs R. N. Kapoor(1).
If the interest of the tenant of the hotel premises is determined, the sub tenant to whom a room in the hotel has been lawfully sublet becomes under s, 20 a direct tenant of the landlord, It may be that when the sub tenant of a room in a hotel becomes a direct tenant under section 20 he enjoys the protection of the Act because the room is no, longer a room in a hotel.
But that point does not arise and need not be decided.
Because a room in a hotel is not (1) ; 556 premises, it does not follow that the room is not a part of the hotel premises or that a sub letting of the room is not a contravention of cls.
(b) and (c) of the proviso to section 13(1).
The Courts below concurrently found that the sub lettings after the commencement of the Act were made without obtaining the consent of the landlord in writing, and the sub lettings before the commencement of the Act were made without obtaining the consent of the landlord either orally or in writing.
We are not inclined to interfere with this concurrent finding.
It is said that by the lease deed dated August 18, 1939 the respondent impliedly consented to this sub letting.
Clauses 21 .and 22 of the lease are in these terms "21.
That the lessee shall not be entitled to either transfer or sub lease the premises or any part thereof to any other party without the written consent of the lessor and on such transfer, both the transferee and the lessee shall be liable for the payment of rent to the lessor and responsible to deliver,possession of the building and equipments in the same condition as when taken.
22.That the lessee will use the premises only for the purpose of running a first class hotel.
" It is ,aid that for the purpose of running a first class hotel it was necessary to sub let the apartments.
It is impossible to accept the contention.
A hotel keeper may run a first class hotel without sub letting any part of it.
Clause 21 clearly provided that the lessee shall not sub lease the hotel premises or any part thereof.
In the teeth of cl. 21, it is impossible to read in cl. 22 an implied consent to sub letting.
Reliance is placed on the correspondence passed between the Land Development Officer, New Delhi and the respondent bet ween April 1948 and February 1949 for establishing that the respondent gave written consent to the sub lettings.
The Land and Development Officer was then complaining of the occupation of portions of the premises by Pan American World Airways and other persons.
By his letters dated November 4, 1948 and February 23, 1949, the respondent requested the Land and Development Officer to regularise the matter adding that in an first class hotels counters of air lines and show rooms of jewellery and curios were always provided.
These letter,.; do not amount to a consent in writing to sub lettings of portions of the hotel to the persons mentioned therein.
Moreover, the consent, if any, 'was to the sub lettings made before 1949 and not to the sub lettings made thereafter.
It is not possible to infer from these letters a general consent to all sub lettings.
557 It is argued that the respondent waived the requirement of consent to the sub letting.
Any subletting in breach of the provisions of cl.
(b) of the proviso to section 13 ( 1) is an offence punish able under section 44.
Assuming that the landlord can waive the requirement as to consent, it is not shown that the respondent waived it.
A waiver is an intentional relinquishment of a known right.
, There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights.
See Dhanukdhari Singh vs Nathima Sahu(1).
It is said that the respondent knew of the sub lettings as he frequently visited the hotel.
It appears that he visited the hotel up to 1953 and he must have known of the occupation of R. N. Kapoor, Indian Art Emporium and Pan American World Airways.
But he came to know of the other lettings in January 1958 only.
Moreover, the precise nature of the grant was never communicated ,to the respondent.
The Courts below rightly held that the respondent did not waive his right to evict the appellant on the , rounds mentioned in cls.
(b) and (c) of the proviso to section 13 (1).
We are therefore satisfied that the respondent is entitled to evict the appellant on the ground of sub letting of the rooms.
The Courts below held that the appellant had also sublet several counters, show cases and garages to various persons.
We express no opinion on the question whether there was any sub letting of the counters, show cases and garages.
The sublettings of the rooms are sufficient grounds of eviction tinder cls.
(b) and (c) of the proviso to section 13(1).
Clause 2(v) of the head lease granted by the Government to the respondent provided that the respondent would not, without the previous consent in writing of the Chief Commissioner.
Delhi or a duly authorised officer, erect or suffer to be erected on any part of the demised premises any building other than the buildings erected there on the date of the lease.
The appellant had due notice of the conditions of the head lease.
Notwithstanding such previous notice, the appellant dealt with the premises in a manner contrary to the conditions imposed by cl. 2 (v).
The Courts below found that contrary to this condition, the appellant made several unauthorised constructions without obtaining the requisite consent.
To give one illustration, the appellant admittedly constructed a room 16 ft. 6 in X 19 ft. 6 in.
with R.C.C. slab and brick masonry walls.
This newly constructed room was let to Shanti Vijay and Co.
On the ground of unauthorised construction of this room alone it must be held that the appellant in contravention of cl.
(k) of the proviso to section 13 (1), notwithstanding previous notice, dealt with the premises in a manner contrary to (1) , 852.
558 a condition imposed on the respondent by the Government while ,giving him a lease of the land on which the premises are situated.
The notice of the conditions imposed by the head lease was sufficient notice for the purposes of cl.
The ground of eviction under cl.
(k) was thus made out.
The Courts below also held that the appellant caused substantial damage to the premises.
We express no opinion on it, and this question is left open.
It follows that the respondent is entitled to evict the appellant on the grounds mentioned in cls.
(b) (i), (c) (i) and (k) of the proviso to section 13(1).
In the result, the appeal is dismissed with costs.
The execution of the decree is stayed for a period of six months from today.
The appellant through Mr. A. K. Sen gives an undertaking that the appellant will hand over to the respondent, on the expiry of six months, vacant possession of the entire hotel premises except the portion in the possession of sub lessees.
Y.P. Appeal dismissed.
|
The respondent landlord of a hotel filed a suit for eviction of his tenant appellant under section 13(1) proviso (b) and (c) of the Delhi and Ajmer Rent Control Act, 1952 on the allegation that the appellant had sub let several rooms.
These occupants were doing business, which were not confined to the residents of the hotel.
The occupants were given ex clusive possession of the rooms occupied by them.
The appellant did not retain any control and dominion over these rooms.
It was not a condition of the grants that the keys would be left at the reception counter, or that the keys would be retained by the appellant.
The occupants were at liberty to take away the keys if they liked.
The occupants availed themselves of the services of the hotel sweeper for their own convenience.
The appellant retained control of the corridor, but the entrance to the corridor was open day and night.
The occupants paid monthly sums to the appellant as the consideration of the sub leases.
The appellanttenant denied the allegations and pleaded that the respondent landlord had waived the breaches, if any.
The suit was decreed which the High Court, in appeal maintained HELD : The landlord was entitled to the decree for eviction.
[558 B] On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is has the landlord retained control over, the apartment Normally, an occupier of an apartment in a hotel is in the position of licensee as the hotel keeper retains the general control of the hotel including the apartment.
But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant.
A hotel keeper may run a first class hotel without sub letting any part of it.
Where as in this case, the hotel keeper retained no control over the apartment, the occupier was in the position of a tenant.
The onus to prove sub letting was on the respondent.
The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration.
The appellant chose not to rebut this prima facie evidence by proving and exhibiting the relevant agreements.
[553 D; 554 C D, F H; 555 C; 556 E] Under section 2(g) "premises" does not include " a room in a hotel or lodging house".
The sub lessee of a room in a hotel is, therefore, not a tenant and cannot claim protection under section 13 from eviction, nor can he ask for fixation of standard rent.
But, because a room in a hotel is not premises, it does not follow that the room is not a part of the hotel premises or that a sub letting of the room is not a contravention of cls.
(b) and (c) of the proviso to section 13(1).
[555 F G 556 A] Associated Hotels of India Ltd. vs R. N. Kapoor, [1960]1 S.C.R. 368, followed.
Addiscombe Garden Estates Ltd. & Anr.
vs Grabbe and Ors.
and Helman vs Horsham Assessment Committee, [1949] 2 K.B. 335,referred to.
549 A waiver is an intentional relinquishment of a known right.
There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights.
Assuming that the landlord can waive the requirement as to consent, it was not shown that the respondent waived it.
It is said that the respondent knew of the sub lettings as be frequently visited the hotel up to 1953 and he must have known of the occupation of some of the occupants.
But he came to know of the other lettings in 1958 only.
Moreover, the precise nature of the grant was never communicated to the respondent.
[557 B D] Dhanukdhari Singh vs Nathima Sahu, , referred to.
|
Appeal No. 1177 of 1975.
(From the judgment and order dated 10 10 1974 of the Kerala High Court in Civil Revision Petition No. 734/74).
K.T. Harindranath, and K.M.K. Nair, for the appellants.
T.C. Raghavan and P.K. Pillai, for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by special leave from the judg ment dated 10 October, 1974 of the High Court of Kerala.
The respondent in the High Court challenged the order of the Land Board directing him to surrender 8.78 acres of land.
The High Court declared on a revision petition that the respondent was not liable to surrender the lands speci fied in the order of the Land Board.
The respondent flied a statement under section 85(a) of the Kerala Land Reforms Act 2964 hereinafter called the Act and showed there that the statement related to the family consisting of himself, his wife and children.
Two of his children were minors on 1 January, 1970.
The ceiling area allowed under section 82(1) of the Act for a family consisting of two or more but not more than five members is 10 standard acres which should not be less than 12 and more than 15 ordinary acres in extent.
On this footing the respondent would be entitled to have not less than 12 acres on the notified date, namely, 1 January, 1970.
He was found to have a total area of 28.38 acres.
He alone was the owner of all the lands.
Out of 28.38 acres 3.87 acres were ex empted under section 81.
Excluding 3.87 acres and another 12 acres for the ceiling area the excess land was 12.51 acres.
A statement showing the determination was served on him and his wife.
They were asked to file objections.
Two of the respondent 's children a daughter and a son who were minors on 1 January 1970 attained majority in 1971 and 1973 respectively.
On 28 March, 1974 the respondent executed three deeds of gift transferring a total extent of 12.83 acres to his three children.
To the eldest of them a daughter, who was a major on 1 January, 1970 he transferred 3.84 acres.
To the second daughter who became a major in 1971 he transferred 3.85 acres and to his son who became a major in 1973 he transferred 5.14 acres.
The respondent flied an objection on 5 April, 1974 stating that he and his wife who were the remaining members of the statutory family did not hold more than the ceiling area available to the family and therefore he was not liable to surrender any excess land.
The Land Board recog nised the gift to the eldest daughter who was a major on 1 January 1970 and required the respondent to surrender 8.78 acres which was the subject matter of the other two deeds of gift.
The respondent 's contention which was accepted by the High Court was repeated here.
The contentions were these.
The donees were not minors on the date of the gift.
There fore, the son and the daughter would not constitute members of the family.
Section 82 of the Act only fixes the.
ceil ing area.
The ceiling is 5 acres for an unmarried person of a family consisting of one sole surviving member.
The ceiling is 6 acres for a family of two to five members, 12 acres for a family of more than 5 members, 10 acres in creased by one acre for each member in excess of 5 etc.
The respondent emphasises that the status or nature of the person or the family is relevant.
If a person is a single member family on the relevant date, he cannot claim a larger ceiling on the ground that he became a two member or five member family later.
Under section 83 of the Act the notified date is 1 January, 1970.
This notified date is relevant only for fixing such ceiling.
Section 83 does not say that the particular person or family loses its title to the excess land on that date.
Section 84 of the Act has two parts.
The first part contains body of the section.
The second part contains exceptions.
Therefore, it is said by the respon 963 dent that all voluntary transfers of excess land failing in the body of the section shall be deemed to be transfers calculated to defeat the provisions of the Act and shall be invalid.
The gifts in the present case are said by the respondent to fall under the last exception of section 84 of the Act and it is said that the transaction is saved by the last exception.
The respondent further contends that on 1 November, 1972 the Amendment 'Act 17 of 1972 deleted two exceptions in section 84 of the Act with effect from 16 August, 1968.
The two deleted exceptions were first a transfer on account of natural love and affection and second a transfer in favour of a religious charitable or educational institution.
The Amendment Act of 1972 added an exception with effect from 16 August 1968.
The exception is a transfer by way of gift in favour of his son or daughter, or the son or daughter of his predeceased 'son or daughter by any person owning or holding land in excess of the ceiling area.
The respondent contends that in the present case the two impugned gifts to a daughter and son respectively, and, therefore, they come directly under the newly added excep tion introduced by Act 17 of 1972 and the exception is deemed to be effective from 16 August, 1968.
The respond ent further contends that section 85 and section 85A of the Act lay down the procedure for surrendering the excess land.
Section 86 of the Act vests the excess land in the Government.
The vesting happens both on the determination of the extent and other particulars of the lands, the ownership or possession or both of which is or are to be surrendered.
The respondent contends that until then namely the vesting of the land the owner of the land i.e. the respondent in this case is the legal owner and his ownership or possession is not diverted.
He can therefore deal with the land in legal valid manner.
A gift under the last exception not being hit by the invalidity contemplated by section 84 of the Act is a valid gift, which the respondent was competent to make.
The respondent contends that it is incorrect to say that a gift coming within the last exception of section 84 is ineffective after 1 January, 1970 inasmuch as such a contention will make section 84 a dead letter after 1 Janu ary, 1970.
It is said that it could not have been the intention of the legislature which added the exception only on 1 November, 1972.
The exceptions introduced by the Amendment Act of 1972 to section 84 are three.
The first is partition.
The second is transfer to a person who has been a tenant from 27 July 1960 up to the date of transfer.
The third is a transfer to a son or a daughter or a grandson or grand daughter by a predeceased son or daughter.
The respondent submits that the intention of the legislature is that in all these cases a person can transfer until he is divested of his ownership under section 86.
The respondent further contends that the scheme of the Act and of the Amendment Act of 964 1972 regarding gift is this.
Until 16 August 1968 a gift to any person is valid if the gift was out of natural love and affection.
After that date namely the amendment Act of 1972 only gifts to sons daughters and grand children of prede ceased children are valid.
It is said that there is nothing in the Act which says that an owner like the respondent cannot deal with his land in a lawful and valid manner as long as he is the owner thereof or as long as ownership is vested in him.
Section 87 of the Act says that where any person acquires any land after the date notified under section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind or transfer inter vivos or by bequest or insistence or otherwise and in conse quence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.
Section 87 according to the respondent indicates that after the notified date 1 January, 1970 valid gifts are possible, as such gifts are saved by exceptions to section 84.
The Kerala Land Reforms Act Of 1964 came into force on 1 April 1964.
On 1 January, 1970 the Kerala Land Reforms Act as amended by Act 35 of 1969 came into force.
The respond ent made gifts of his excess land on 28 March, 1974.
On 5 April, 1974 the Land Board served notice on the respondent saying that ' the gifts were invalid and directed the re spondent to surrender the excess Land in excess of the ceiling area as found on 1 January, 1970.
On behalf of the State it is contended that the view taken by the Single Judge in the present case has been over ruled by a Division Bench of the Kerala High Court in a decision reported in It is also said by the appel lant that the decision of the Division Bench is affirmed by the Full Bench of the Kerala High Court in the Judgment reported in Section 82 of the Act lays down the principles governing the fixation of the land ceiling area in respect of differ ent categories of persons.
Section 83 of the Act states that with effect from the notified date no person shall be entitled to own or hold or to possess under a mortgage lands in the aggregate in excess of the ceiling area.
Sec tion 84 of the Act provides that all voluntary transfers effected after the publication of the Kerala Land Reforms Bill 1963 in the Gazette, namely, 15 September 1963, other wise that in certain modes specified in section 84, shall be deemed to be transfers calculated to defeat the provisions of the Act and shall be invalid.
Section 85(1) lays down that if any person owns or holds land in excess of the ceiling area on the notified date, such excess shall be surrendered as provided in the section.
Section 86 lays down that on determination by the Land Board of the extent and other particulars of the lands to be surrendered by the person under section 85 the ownership or possession or both, as the case may be, of the lands shall vest in the Govern ment free from any encumbrance.
Section 87 deals with cases where persons have acquired lands after the notified date by transactions inter vivos, such as gift, purchase, mortgage with possession 965 lease, surrender or by bequest, or inheritance etc.
and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess lands should also be surrendered to the prescribed authority and that such land shall also vest in the Government under section 86.
These provisions in the Act establish the dominant legislative intent of the imposition of the ceiling on land holdings and the consequential obligation to surrender lands owned or held in excess of the ceiling area on the noti fied date, namely, 1 January 1970.
The legislature noticed the possibility that after the proposal to introduce the Kerala Land Reforms Bill 1963 published in the Gazette on 15 August, 1963, there might be transactions of transfers with a view to circumventing the provisions of the contem plated legislation.
It is to meet the said situation that.
section 84 of the Act lays down that all such voluntary transfers that have taken place subsequent to the date of publication of the Bill, namely, 15 August 1963, otherwise than in the limited modes specified in the said section, shall be deemed to be transfers calculated to.
defeat the provisions of the Act and shall be invalid.
It is apparent that section 84 was enacted with a view to making the provi sions of sections 83 and 85 effective.
For purposes of calculation of the ceiling area and the determination of the extent of the excess land to be surrendered by persons account will be taken not merely of the land actually owned and possessed by him on the notified date, namely, 1 January 1970, but also of land voluntarily transferred by him subsequent to the date of publication of the Bill in the Gazette on 15 August 1963 by transactions not falling within the certain categories mentioned in section 84.
Section 84 prohibits persons from transferring their excess lands after 15 August, 1963 except as provided in that section.
The effect of sections 83 and 85 has been noticed by this Court in the decision dated 20 August, 1976 in Civil Appeals No. 907 909 of 1974 and Civil Appeals No. 1354 and 1355 of 1975 (State of Kerala & Ors.
vs Philomina(1).
It has been held there that the prohibition against ceiling area under section 83 of the Act and the surrender of the excess land under section 85 of the Act are both to be determined with reference to the position as on the noti fied date under section 83 of the Act.
The crucial date for determining and surrendering the surplus land is 1 January 1970 and not any earlier date.
Transfers which have been effected between 15 August 1963 and 1 January 1970 will be treated as valid provided they come within the excepted categories enumerated in section 84 of the Act.
The lands covered by such valid transfers will be treated as properties belonging to.
the transferors on the notified date for purposes of determining a ceiling area and the extent of excess land to be surren dered by him.
In respect of transfers effected after 1 January 1970 the ceiling area applicable to a person and the extent of his liability to (1) ; 966 surrender, which became crystallised on 1 January 1970, will determine the excess land to be surrendered.
The obligation to surrender the excess land owned or possessed by person as on 1 January 1970 cannot be affected by voluntary transfers even of the excepted varieties mentioned in section 84 of the Act subsequent to the notified date.
The transferor will continue to be liable to surrender to the Government the full extent of the excess land that was in his posses sion as on 1 January 1970.
The High Court erred in holding that the respondent was not to surrender the land.
The appeal is accepted for the foregoing reasons and the judgment is set aside.
Parties will pay and bear their own costs.
P.H.P. Appeal allowed.
|
The respondent held 28.4 acres of land and, therefore, filed a return under Section 85(a) of the Kerala Land Re forms Act, 1964.
In the return, he showed his family as consisting of himself, his wife and 3 children.
Section 84 of the Act provided that all voluntary transfers effected after publication of the Kerala Land Reforms Bill, 1963, except certain transfers which were excepted shall be deemed to be transfers calculated to defeat the provisions of the Act and invalid.
The Act was amended by Act 35 of 1969 ' which came into force on 1 1 1970.
By virtue of the said amendment, 1 1 1970 was declared as the notified date.
Section 83 provides that with effect from the notified date no person shall be entitled to own, hold or to possess land in excess of certain acres of land.
Section 85(1) provides that any person holding land in excess on notified date shall surrender the excess.
Section 85 and 85A are the sections laying down the procedure for surrender of the excess land.
Section 86 provides that on determination of the excess land under section 85 the same will vest in the State.
On 1 1 1970, the respondent had one major child and two minor children.
One minor child attained the age: of majority in 1971 and another attained majority in 1973.
In March, 1973, 3 gift deeds were executed one in favour of each one of the children.
The respondent was called upon to hand over the excess land on.
the ground that the transfers executed after 1 1 1970 in favour of the children who were minor on 1 1 1970 will be ignored and the land will be treated as land owned by the respondent.
The respondent filed his objections and contended that he and his wife were the only members of the family and that if the transfers were excepted he did not hold land in excess of the ceiling.
The Land Board came to the conclusion that out of the 28.4 acres of land held by respondents 3.9 acres were exempted under section 81 and that the land measuring 3.8 acres gifted to the major child was a valid gift and in addition the respondent was entitled to hold 12 acres of land.
He came to the conclusion that the respondent was holding excess land to the extent of 8.78 acres.
The respondents filed a Revision Petition in the High Court which allowed the same.
In an appeal by Special Leave the respondent contended: (1) Section 83 is relevant only for fixing ceiling.
It does not say that a person or a family loses his title on the notified date.
(2) Donees were not minors on the date of gift.
That would not constitute the members of the family.
961 (3) Gifts in the present case are saved by the last exception to section 84 which permit ted gifts to any person out of natural love and affection or, at any rate, they are saved by Amendment Act 17 of 1972 by which the exception to Section 84 was made effective from 16 8 1968, in favour of transfers by way of gifts in favour of son or daughter or other near relations.
(4) Sections 85 & 85A lay down the proce dure ' for surrendering the excess land.
Section 86 vests the excess land in the State.
The vesting takes place after the procedure under sections 85 and 85A is over and till then the respondent was the legal owner and could have and in fact validly gifted the land in question.
The appellants contended: (1) The gifts made after 1 1 1970 were not saved by exception to section 84.
(2) The view taken by the Single Judge has been over ruled by a Division Bench and Full Bench of the same High Court.
Allowing the appeal, HELD: (1,) The provisions of the Act dearly establish the dominant legislative intent of the imposition of the ceiling on laud holdings and the consequential obligation to surrender laud owned or hold in excess of the ceiling area on the notified date, namely, 1 1 1970.
Section 84 was enacted because the Legislature anticipated transfers with a view to.
circum vent the provisions of law.
Transfers between 15 8 1963 and 1 1 1970 ' will be valid if within the exceptions provided by section 84.
Transfers made after 1 1 1970 even of the excepted varieties are to be ignored and obligation to surrender the excess land on 1 1 70 cannot be excepted by voluntary transfers made subsequent to.the notified date.
[964 G H, 965 C D] (2) Notified date is 1 1 1970.
That is the relevant date for fixing ceiling.
Subse quent changes in the constitution of family are irrelevant [965 H]
|
Counsel for Appellant :- Vikram Bahadur Singh, Amicus Curuae
Counsel for Respondent :- Mr. Shrawan Kumar Ojha (A.G.A.)
1. Present jail appeal has been preferred against
the judgment and order dated 7.7.2011 passed by
Nagar whereby the accused appellant Amar Singh
has been convicted and sentenced under section 366
I.P.C. to undergo five years rigorous imprisonment
and fine of Rs.2000/- and under section 376 I.P.C.
for seven years R.I. and fine of Rs.3,000/-, with
default provision in each of the offences. The
appellant has been acquitted of the charge under
2. Heard Mr. Vikram Bahadur Singh, learned
amicus curiae, appearing for the appellant and Mr.
Shrawan Kumar Ojha, learned Additional
Government Advocate for the State.
3. The prosecution case is that the complainant
Bablu, P.W. 1 lives in Swaroop Nagar, Kanpur in a
hut and carries on the business of selling eggs for
livelihood. Amar Singh, the present appellant works
in Arya Nagar karkhana. He also lives in Swaroop
Nagar. On 22.3.2010, Amar Singh enticed away
daughter of the complainant aged about 16-17
years, from her home. He agreed her to marry. The
complainant apprehended both, the accused Amar
Singh and his daughter from karkhana and gave
them in the custody of police. A written report was
given by him to the police station on the basis of
which case crime No.60 of 2010 under sections
363, 366 I.P.C. was registered.
4. Investigation was conducted by the investigating
officer. Statement(s) of the prosecutrix and other
prosecution witnesses were taken. The prosecutrix
was medically examned. Her statement was
recorded under section 164 CrPC. On pointing out
of the prosecutrix, place of occurrence was
inspected and site plan was prepared and
consequenly charge-sheet against the accused
appellant under secctions 363, 366, 376, 506 I.P.C.
was filed. Against the accused appellant, charges
under sections 363, 366, 376 I.P.C. were framed.
The accused denied the charges and claimed to be
5. From the side of the prosecution, P.W.1 Bablu,
P.W.2 prosecutrix, P.W.3 Dr. Jyotsana Kumari,
P.W.4 S.I. Ram Chandra Pal and P.W.5 Constable
Pradeep Kumar were examined. The written report
has been exhibited as Ext.Ka-1, supurdaginama as
Ext. Ka-2, medical report of the victim as Ext.Ka-3,
supplementary medical report as Ext.Ka-4, site plan
as Ext.Ka-5, charge-sheet as Ext.Ka-6, chik FIR as
Ext.Ka-7 and G.D. entry as Ext.Ka-8. Statement of
the accused under section 313 CrPC was recorded
where the case of the accused is of denial.
6. The prosecutrix in her statement under section
164 CrPC has stated that she went with the accused
to Arya Nagar Karkhana. She was forcibly raped
there and was threatened. She was subjected to rape
thrice. She became unconscious and in the morning,
she came home and told the incident to her mother
and then her parents and brother Deepu went to
karkhana and caught the accused from there and
gave him to the police.
7. P.W.1 Bablu has stated that on 22.3.2010, the
accused enticed away the prosecutrix from his
home. He also went to karkhana. Both of them were
found there and he agreed them to marry. From the
karkhana, he apprehended the accused and the
prosecutrix, and handed them over, to the police.
In cross-examination, he changed the time of the
incident and stated that the incident took place in
the month of November, then stated that the
incident occurred on December 28 evening. He
further stated in his cross examination that his
daughter has not told him that she was enticed
away. He knew the accused. He is a resident of the
same mohalla. He caught the accused from
karkhana and stated that he will get them married.
It is further stated that he has shown the place of
incident to the investigating officer. He stated that
he got the written report written by Rajvansh of
mohalla. He told the investigating officer that his
daughter has agreed for the marriage. He did not
agree for the marriage. However, he stated that if
the daughter is ready, he can marry her. The
accused was caught from Karkhana by P.W.1 and
his wife. He also stated that his nephew Deepu was
also with him. He denied the suggestion that he did
not tell the investigating officer that his daughter
has given consent for marriage. He did not agree for
that, nor tried to get them married.
P.W.2 has stated that on 22.3.2010, the accused took
her to his karkhana at Arya Nagar by enticing her
away. He pressed her mouth from her clothes and
subjected her to rape thrice. She got unconsious.
Someone opened the door of the karkhana. Then,
she went to her parents and told them about the
incident. Thereafter, her parents and her brother
Deepu took the accused from karkhana to the police
station. She was also taken along with the accused.
In her cross-examination, she stated that she did not
remember the date and time of the incident. Then
she says that it was Monday. The accused used to
come to her house when P.W.1 was away and
talked her and her mother. She further stated that
the accused used to come to her house for the past
one year and they used to crack jokes in the house
and her family members did not mind accused
coming to her house. Then he says that she went
alone on foot from the house towards mandir in the
evening. Along with her, her younger sister Pinki
also went.
She further stated that she told the investigating
officer that she is 18 years old. She was enticed
away by the accused. She told her parents that she
is going to temple. They did not stop her. On the
pretext of taking her mandir, the accused took her,
his home and thereafter to karkhana. She stated that
she on her own accord went away with the accused
to temple. The accused has not forced her to go to
temple. However, when instead of taking her to
temple, he was taking her to karkhana, she
objected. On the way, she has not opposed while
she was taken by the accused. She had full faith on
the accused. Chowkidar was present at the
karkhana. He was under influence of liquor. Both
had taken liquor. In the karkhana, the prosecutrix
P.W.2, Chowkidar and the appellant were present.
No one else was there. The door of the karkhana
was locked from inside. She then stated that she
went in karkhana on her own accord. She denied
the suggestion that she has not given statement to
the investigating officer that from karkhana, his
parents and uncle apprehended her and Amar
Singh, present appellant. She further denied the
suggestion that she has told the investigating officer
that she has stayed with Amar Singh at his house
for the entire night. Her clothes were not seized by
the investigating officer.
P.W.3 Dr. Jyotsana Kumari has examined the
prosecutrix, P.W.2. No injury was found on the
person of the proseccutrix, including her private
According to pathological report, no spermatozoon
was seen. P.W.3 Dr. Jyotsana Kumari has stated that
no definite opinion regarding rape with P.W.2 can
be given and in the medical examination, redness
and swelling was found on the vagina. However, no
blood was found. There was no injury on any part
of the prosecutrix body. P.W.3 further stated that
she has not seized any cloth of the prosecutrix. As
per report of the Chief Medical Officer, the
prosecutrix was 19 years old.
P.W.4 S.I. Ram Chandra Pal, investigating officer in
his statement has said that on the pointing out of
P.W.2, he inspected the place of occurrence and has
prepared the site plan in his writing. He further
stated that P.W.1 has told him that the accused has
agreed for marriage. He further stated that P.W.1
told him that he went at the place of occurrnece
with his wife and brother Pappu. P.W.4 further
stated that P.W.1 has told him that the accused
enticed away his daughter and had taken to his
home. The investigating officer has stated that
P.W.1 has not told him that the accused took his
daughter to karkhana. P.W.4 further stated that the
prosecutrix told him that on the pretext of taking
her to temple and after visiting the temple, the
accused took her to his home and kept her entire
night at his house. She further stated that the
accused raped her at his house, however, she did
not tell him that how many times she was raped.
P.W.4 further stated that the prosecutrix has not told
him regarding any threat or marpeet done by the
accused. She had not told him regarding taking the
accused to karkhana. P.W.4 has further stated that
he has not inspected karkhana. He further stated
that the prosecutrix in her statement told him that
the accused enticed away the prosecutrix to his
home and he made her agreed for marriage.
The mother of the prosecutrix also told him that the
accused took the prosecutrix from his home to
karkhana in the morning. Mother of the prosecutrix
further told that when they reached to karkhana,
then the accused and the prosecutrix were found
standing there. During investigation, he has not
received the blood stained clothes of the
prosecutrix. He has not recovered the sample and
soil from the place where the prosecutrix was
allegedly raped. He has not taken any mark from
the place of occurrence. He further stated that the
place of occurrence is room of the accused
appellant. He has not shown the place where the
accused and the prosecutrix were apprehended, in
the site plan. He has denied the suggestion that he
has prepared a baseless site plan. He has further
denied the suggestion that he has not shown place
of occurrnece in the site plan. He has not shown
karkhana in the site plan. The suggestion that the
place which he has shown in the site plan is not the
place of occurrence has been denied by the witness
and further he denied the suggestion that on the
saying of the family members of the prosecutrix
and under pressure by senior police officers, he
completed the formality and filed false charge sheet
against the accused.
P.W.5 Constable Pradeep Kumar is a formal
witness, who has proved the first information
8. It is submitted on behalf of the appellant that the
room of the accused from the hut of P.W.1 is a few
paces away. The prosecutrix has not raised any
alarm while going to the room of the accused. He
submits that the prosecution has failed to prove its
case beyond reasonable doubt. The testimony of the
prosecutrix is not worthy of credence.
9. Learned Additional Government Advocate has
opposed the appeal and has submitted that the
testimony of the prosecutrix is intact. She has
levelled clear allegation against the appellant. The
same statement has been given by her in her
statement under section 164 CrPC. It is lastly
submitted that minor irregularity in the prosecution
case will not come in the aid of the accused. In
support of his contention, learned A.G.A. has relied
on judgment of Supreme Court in Vijay alias
Chinee versus State of Madhya Pradesh
2010(8)SCC 191 and State of Kerala versus
Kundumkara Govindan and another 1969
10. Having heard learned amicus curiae, appearing
for the appellant and learned A.G.A. as well as
perusal of the record, I find that as regards the date
of occurrence, in the written report, there is no
mention of the date of occurrence. In the chick
F.I.R. also, date of occurrence is not mentioned.
P.W.1 in his statement has stated that the date of
occurrnece is 22.3.2010, i.e. the date his daughter
was enticed away by the accused. In the cross-
examination, he has changed the time of occurrnece
and has stated that the incident is of November
month. Then he says that the incident is of
P.W.2 in her examination-in-chief has not stated the
exact date of incident; rather she has stated that it
was Monday. In her cross-examination, she has
stated that the incident occurred on 22.3.2010.
P.W. 4 S.I. Ram Chandra Pal has stated in his chief
that on 23.3.2010 when he was posted at police
Swaroop Nagar, the accused was given in his
custody which shows that according to testimony of
P.W.1, the date of occurrnece comes to 22 nd March.
As regards the place of occurrence, P.W.1 in his
statement has stated that the place of occurrnece is
karkhana where the appellant was an employee.
P.W.2 in her examination-in-chief has stated that
she was subjected to rape at karkhana. However, in
her cross-examination, she has changed it. She has
denied the suggestion that she stayed with the
accused at his home for the entire night. She further
stated in her cross that she told the investigating
officer that she was first taken to the house of the
accused, then to karkhana.
The investigating officer in his statement has stated
that it was P.W.1 who told him that the appellant
took his daughter to his house. P.W.4 has stated
that the prosecutrix has also told him that she was
kept for the entire night at the house of the
appellant. She further stated to P.W.4 that she was
raped at the house of the appellant. She has not told
P.W.4 regarding the incident at karkhana. The
mother and the younger sister of P.W.2 and P.W.2
herself – all have stated in their statement to P.W.4
that the accused took the prosecutrix to his home
because the appellant had got the consent of the
prosecutrix for marriage. P.W.4 further stated that
he inspected the place of occurrence at the pointing
out of the prosecutrix and prepared the site plan. He
pointed out the room where the incident took place
in the site plan, i.e. the room of the accused
appellant. He further stated that in the site plan, he
has not shown karkhana. The site plan prepared by
the investigating officer is Ext. Ka-5 wherein the
place of occurrnece is shown at the room of the
11. Collective reading of the statements of P.W.1,
P.W.2 and the statement of P.W.4 as also the site
plan does not show as to whether the place of
occurrence is karkhana or the house of the accused
appellant and thus, exact place of occurrence is
12. Now. coming to the testimony of the
prosecutrix who in her statement has stated that on
the date of incident, she went alone from her house
to J.K. Mandir. Thereafter, she stated that on
22.3.2010 in the evening, she went to J.K. Mandir
with her younger sister Pinki. Thereafter, again she
says that she on her own accord and free will went
away with the appellant to Mandir and no force was
applied by the appellant to take her to temple.
While she was going with the accused to Mandir,
when she found that instead of taking her to
Mandir, the appellant was taking her to karkhana,
she objected and raised alarm.
Then she says that on the way, she has not made
any resistance while she was taken by the accused
as she had full faith on the accused. She further
says that she went to karkhana on her free accord.
She denied the suggestion that she has told the
investigating officer that she remained with the
appellant at his house for theentire night.
13. A perusal of the statement of the prosecutrix
shows that the same is self contradictory and
inconsistent and does not inspire confidence. At one
place, she says that she was enticed away by the
appellant and was subjected to rape at karkhana and
also was threatened by the accused appellant. Then,
in her cross-examination, she says that she went to
karkhana at her own accord. She was aware that the
accused was taking her on the opposite route which
does not go to temple. She did not make any
resistance as she had full faith on the appellant. She
has stated that the accused has never persuaded for
going out from the house. The appellant used to
come to her house for the last one year with the
consent of family members and they did not mind
that. P.W.2 further says that they never went to the
house of the accused. She further says that on the
pretext of taking to Mandir, the accused took her to
his home and then to karkhana. She denied the
sugestion that she has told the investigating officer
that she remained with the accused appellant for the
entire night at his home; rather she stated that she
told the investigating officer that she was in
karkhana with the accused appellant. She further
stated that she went alone from her house to J.K.
Mandir. Then she says that she was going along
with her younger sister. She further stated that no
first information report was written in front of her
at the police station. Thus, the testimony of the
prosecutrix varies from every stage and does not
inspire confidence, hence, to convict the appellant
on testimony of P.W.2, some corroboration is
required as held by Supreme Court in Mod. Ali
alias Guddu versus State of U.P. (2015)7 SCC
272 (Emphasis is on paras 29 and 30).
P.W.3 Dr. Jyotsana Kumari has stated that
according to report of the Chief Medical Officer,
the prosecutrix was 19 years old. She has not given
any clear opinion on rape. No external or internal
injury has been found on the person of the
prosecutrix. No spermatozoon has been found in
the pathological report. There was no bleeding.
Redness or swelling on the private part/vagina
could have come from some stimulant substance
like red pepper, petrol and therefore, has not given
any definite opinion about rape. P.W.4 has disputed
the place of occurrence as told by P.W.1. Statement
of P.W.2 regarding place of occurrence is also
doubtful. P.W.4 has stated that he has not collected
any soil or mark from the place of occurrnece. He
has not visited even karkhana which according to
the prosecutrix is the place of occurrence. He has
stated that he has not shown karkhana in the site
14. On overall consideration of the prosecution
evidence, statement of the prosecution witnesses
and the material collected by the investigating
officer, it is clear that in the written report and the
first information report, no date of incident has
been mentioned. Scribe of the first information
report Rajvansh has not been produced. The
prosecutrix in her statement has stated that she went
to temple along with the appellant at her free will
and accord, however, she told the investigating
officer that Amar had taken her to his home and she
was kept there whole night. This shows
contradictory statement of the prosecutrix.
Whether the place of occurrence is karkhana or the
house of accused becomes doubtful as per the site
plan itself. In the site plan, karkhana has not been
shown. P.W.4 has not visited the place of
occurrence, i.e. karkhana. Neither the soil nor the
clothes of the prosecutrix has been collected by the
investigating officer. Chowkidar of karkhana has
not been produced by the prosecution. The younger
sister of the prosecutrix who could have been the
eye-witness has also not been produced by the
prosecution; rather has been withheld. Hence for
not examining Chowkidar and Pinki, younger sister
of P.W.2, adverse inference is to be taken against
the prosecution as held by Supreme Court in 2001
Criminal Law Journal 2602 Takhaji Hiraji versus
Thakore Kubersing Chamansing and others.
Relevant paragraph 19 is reproduced as under :
"19. So is the case with the criticism levelled by the High Court on the prosecution case
finding fault therewith for non-examination of independent witnesses. It is true that if a
material witness, which would unfold the genesis of the incident or an essential part of
the prosecution case, not convincingly brought to fore otherwise, or where there is gap
or infirmity in the prosecution case which could have been supplied or made good by
examining a witness which though available is not examined, the prosecution case can
be termed as suffering from a deficiency and withholding of such a material witness
would oblige the Court to draw an adverse inference against the prosecution by
holding that if the witness would have been examined it would not have supported the
prosecution case. On the other hand if already overwhelming evidence is available and
examination of other witnesses would only be a repetition or duplication of the
evidence already adduced, non-examination of such other witnesses may not be
material. In such a case the Court ought to scrutinise the worth of the evidence
adduced. The court of facts must ask itself - whether in the facts and circumstances of
the case, it was necessary to examine such other witness, and if so, whether such
witness was available to be examined and yet was being withheld from the court. If the
answer be positive then only a question of drawing an adverse inference may arise. If
the witnesses already examined are reliable and the testimony coning from their mouth
is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-
examination of other witnesses. In the present case we find that there are at least 5
witnesses whose presence at the place of the incident and whose having seen the
incident cannot be doubted at all. It is not even suggested by the defence that they
were not present at the place of the incident and did not participate therein. The injuries
sustained by these witnesses are not just minor and certainly not self-inflicted. None of the
witnesses had a previous enmity with any of the accused persons and there is apparently no
reason why they would tell a lie. The genesis of the incident is brought out by these
witnesses. In fact, the presence of the prosecution party and the accused persons in the
chowk of the village is not disputed. How the vanity of Thakores was hurt leading into a
heated verbal exchange is also not in dispute. Then followed the assault. If the place of the
incident was the chowk then it was a sudden and not pre-meditated fight between the two
parties. If the accused persons had reached their houses and the members of the prosecution
party had followed them and opened the assault near the house of the accused persons then
it could probably be held to be a case of self-defence of the accused persons in which case
non-explanation of the injuries sustained by the accused persons would have assumed
significance. The learned Sessions Judge has on appreciation of oral and the circumstantial
evidence inferred that the place of the incident was the chowk and not a place near the
houses of the accused persons. Nothing more could have been revealed by other village
people or the party of tight rope dance performers. The evidence available on record shows
and that appears to be very natural, that as soon as the melee ensued all the village people
and tight-rope dance performers took to their heels. They could not have seen the entire
incident. The learned Sessions Judge has minutely scrutinised the statements of all the eye-
witnesses and found them consistent and reliable. The High Court made no effort at
scrutinising and analysing the ocular findings arrived at by the Sessions Court. With the
assistance of the learned counsel for the parties we have gone through the evidence adduced
and on our independent appreciation we find the eye-witnesses consistent and reliable in their
narration of the incident. In our opinion non-examination of other witnesses does not cast any
infirmity in the prosecution case. "
(Emphasised by me)
15. In Kundumkara Govindan’s case (supra), relied
on by learned Additional Government Advocate,
Assistant Sessions Judge acquitted the accused
giving benefit of doubt, holding that the evidence of
the prosecutrix in a rape case cannot be believed
unless it is corroborated in material particulars. It is
not the case here. Law in this regard is settled.
Statement of the prosecutrix alone is sufficient to
convict the accused if the same inspires confidence
and is of impeccable character and quality. In case
the statement is infirm, then some corroboration is
The facts of the present case are different from the
above case law. Hence, in the facts of the present
case, rule of prudence cannot be dispensed with as
in view of the self contradictory and shaky
testimony of the prosecutrix, corroborative material
is required which is absent in this case.
16. So far as the judgment in Vijay alias Chinee
versus State of M.P. (supra) is concerned, relied on
by learned A.G.A., place of incident was not
disputed and admittedly, the prosecutrix at the place
of incident was subjected to rape and therefore,
there are concurrent finding of facts by the two
courts. Here, in the present case, place of
occurrence is itself disputed by the investigating
officer and from the testimony of P.W.2. In that
regard also, it does not inspire confidence.
Therefore, this judgment also is not applicable in
the facts of the present case.
17. Since the place of occurrence in this case is not
clear, coupled with the fact that the testimony of
P.W.2 is quite shaky and does not inspire
confidence as also the fact that younger sister Pinki
of P.W.2 who was an eye-witness has not been
produced by the prosecution, Chowkidar of
karkhana at Arya Nagar has also not been made
accused along with the appellant and has not been
produced by the prosecution, scribe of the first
information report has also not been made witness
in this case, I am of the opinion that such kind of
testimony of P.W.2 does not inspire confidence.
18. Thus, in view of the aforesaid discussion, the
prosecution has failed to prove its case beyond
reasonable doubt. Every part of the testimony of the
prosecutrix is infirm, doubtful and contradictory
which does not pose confidence. There is no
corroborative evidence in support of the testimony
of the prosecutrix. The prosecution has not been
able to prove the place of occurrence, the time of
occurrence and manner of occurrence. The exact
place of occurrence has not been established and
there is variation in the evidence about place of
occurrence as per the evidence of the investigating
officer and the witnesses. The court below has not
taken note of this contradiction which was a
material contradiction and therefore there has been
a total wrong appreciation of evidence on record
which has resulted in miscarriage of justice. There
appears to be suppression of material facts relating
to occurrence because of the contradiction as
indicated. Unusual manner of shifting the place of
occurrence and the fact of the prosecutrix having a
company of the accused appellant at her free will
and accord while going to temple and then to
karkhana as also they having been acquainted with
each other leaves doubt on the veracity of the
incident. The investigating officer has not collected
any evidence from the place of occurrence. Two
important and available witnesses have been
withheld by the prosecution from the Court,
therefore, it is hard to convict the appellant on this
quality of evidence and it is a fit case to draw
adverse inference against the prosecution for
withholding two important witnesses from the
19. In view of what has been stated hereinabove,
the jail appeal is allowed and the judgment and
order of conviction and sentence dated 7.7.2011
passed by Additional Sessions Judge, Court No.5,
Kanpur Nagar in S.T. No.759 of 2010, is set aside.
20. As per report dated 12.6.2017, sent by
Superintendent, District Jail, Kanpur Nagar, the
appellant has already been released after serving
full sentence and giving benefit of remission
period.
21. Let a copy of this judgment be transmitted to
the learned trial Court. The lower court records be
also sent back to the lower court.
Location: High Court of Judicature at
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The Allahabad High Court recently set aside the conviction order passed against a rape accused as it found each and every part of the testimony of the prosecutrix to be 'infirm', 'doubtful', and 'contradictory'.Significantly, the accused has already been released after serving a full sentence after getting the benefit of a remission period.The bench of Justice Karunesh Singh Pawar found...
The Allahabad High Court recently set aside the conviction order passed against a rape accused as it found each and every part of the testimony of the prosecutrix to be 'infirm', 'doubtful', and 'contradictory'.
Significantly, the accused has already been released after serving a full sentence after getting the benefit of a remission period.
The bench of Justice Karunesh Singh Pawar found that in support of the testimony of the prosecutrix no corroborative evidence was presented before the Court and that the prosecution had not been able to prove the place of occurrence, the time of occurrence, and the manner of occurrence.
The case in brief
Essentially, one Amar Singh (released on remission) preferred against the judgment and order of 2011 passed by Additional Sessions Judge, Kanpur Nagar convicting him under section 366 I.P.C. to undergo five years rigorous imprisonment and under section 376 I.P.C. for seven years R.I.
Complainant Bablu (P.W. 1) alleged that her daughter aged about 16-17 years was enticed away from her home by Amar Singh/Accused. He agreed with her to marry. The complainant apprehended both, the accused Amar Singh and his daughter and gave them in the custody of the police.
The prosecutrix in her statement under section 164 CrPC stated that she went with the accused to Arya Nagar Karkhana wherein she was forcibly raped there and was threatened.
She further said that she was subjected to rape thrice, became unconscious and in the morning, she came home and told about the incident to her mother, and then her parents and brother Deepu went to karkhana and caught the accused from there and gave him to the police
Court's observations
Having heard amicus curiae, appearing for the appellant, and A.G.A. as well as a perusal of the record, the Court found that as regards the date of occurrence, in the written report, there was no mention of the date of occurrence.
In the chick F.I.R. also, the date of occurrence was not mentioned. P.W.1/Complainant in his statement stated that the occurrence is of March 2010, however, in the cross-examination, he changed the time of occurrence and stated that the incident is of November month, thereafter, he said that the incident is of December.
Regarding the evidence of P.W.2/victim, the Court noted that in her examination-in-chief, she had not stated the exact date of the incident. Further, at one place, she said that she was enticed away by the appellant and was subjected to rape at karkhana, and also was threatened by the accused-appellant. Then, in her cross-examination, she said that she went to karkhana of her own accord.
The Court further took into account the entire testimony of the victim and observed that her statements of the prosecutrix varied at each and every stage and does not inspire confidence
On a collective reading of the statements of P.W.1/Complainant, P.W.2/Victim, and the statement of P.W.4/Investigating officer as also the site plan, the Court noted that the same did not show whether the place of occurrence is karkhana or the house of the accused-appellant and thus, exact place of occurrence is doubtful.
Thus, the Court held that the prosecution had failed to prove its case beyond a reasonable doubt and that each and every part of the testimony of the prosecutrix was infirm, doubtful and contradictory which does not pose confidence.
"The exact place of occurrence has not been established and there is variation in the evidence about place of occurrence as per the evidence of the investigating officer and the witnesses. The court below has not taken note of this contradiction which was a material contradiction and therefore there has been a total wrong appreciation of evidence on record which has resulted in miscarriage of justice. There appears to be suppression of material facts relating to occurrence because of the contradiction as indicated. Unusual manner of shifting the place of occurrence and the fact of the prosecutrix having a company of the accused appellant at her free will and accord while going to temple and then to karkhana as also they having been acquainted with each other leaves doubt on the veracity of the incident," the Court further remarked.
Consequently, the jail appeal was allowed and the judgment and order of conviction and sentence was set aside.
Case title - Amar Singh v. State [JAIL APPEAL No. - 5100 of 2011]
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Appeal No. 1733 of 1967.
Appeal by special leave from the Award dated April 10, 1967 of the Industrial Tribunal, Delhi in Reference I.D. No. 241 of 1961.
M.K. Ramamurti, Shyatnala Pappu, Vineet Kumar and Madan Mohan, for the appellants.
S.V. Gupte, Lalit Bhasin, S.K. Mehta and K.L. Mehta, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
Two workmen, Gulab Singh and Satya Pal, were appointed by the respondent company in December 1956 and February 1955 respectively under the designation of copy holders.
It was alleged that they were entrusted with the duties of proofreaders and therefore they claimed that they should be treated as such.
In July 1959 the management issued an order in which the two workmen were described as copy holders.
It was alleged that in spite of this order the management continued to give the workmen the work of proof readers.
A dispute whether the two workmen should be treated as proof readers having arisen and having been espoused by the Delhi Union of Journalists, the Delhi Administration, by a notification dated AUgust 2, 1961 referred it to the Industrial Tribunal, Delhi.
The management contended that the said dispute was an individual dispute and not an industrial dispute and that that being so it was wrongly referred to the Tribunal and the Tribunal had no jurisdiction to adjudicate it.
The Tribunal raised the preliminary issue, namely, whether the dispute relating to the said two workmen was an industrial dispute.
The Tribunal held that 915 it was not an industrial dispute but was only an individual dispute of the two workmen and therefore it had no jurisdiction to adjudicate the said reference.
The workmen obtained special leave from this Court and that is how this apppeal has come up before us for disposal.
Apart from the oral evidence, the appellants relied on two documents, exhibit WWI/A, which purported to be the minutes of a meeting held on November 15, 1960 of 17 working journalists and exhibit WB/1 purporting to be the minutes of a meeting of the executive committee of the Delhi Union of Journalists held on December 1, 1960.
The union maintained that these two resolutions were proof of espousal of the dispute, the first by an appreciable number of the co workers of the two aggrieved workmen and the second by the union and therefore the dispute though originally an individual dispute was converted into an industrial dispute.
The Tribunal rejected exhibit WW1/A, namely, the minutes of the alleged meeting of the 17 working journalists in the employ of the respondent company as unreliable.
The Tribunal next considered whether, even assuming that the said 17 working journalists espoused the cause of the two workmen that espousal transformed the dispute in question into an industrial dispute, in other words, whether they constituted an appreciable number sufficient to change the dispute into an industrial dispute.
At the material time the Branch office of the respondent company at Delhi consisted in all of 388 employees, out of whom 140 were working in the Press.
The working journalists numbered 131, out of whom 63 were outstation correspondents and the remaining 68 were working journalists performing their duties in Delhi and New Delhi.
The Tribunal held that though the said 63 working journalists were outstation journalists they nevertheless belonged to the staff of the respondent company 's Delhi Branch, and therefore, could not be excluded from consideration.
The question which the Tribunal posed to itself was whether 17 out of the said 131 working journalists could be said to be an appreciable number.
According to the Tribunal, even if those 63 outstation correspondents were excluded and only 68 working journalists were considered, 17 of them would not constitute an appreciable number sufficient to convert the said dispute into an industrial dispute.
It also held that mere passing of a resolution without anything done to follow it up was not sufficient to constitute espousal.
There was no evidence that after passing the said alleged resolution on November 15, 1960 anything further was done.
On these facts the Tribunal did not consider the aforesaid resolution, assuming that it was passed, as constituting espousal.
As regards the resolution dated December 1, 1960 the minutes of the meeting of the executive committee of the Delhi Union of Journalists were produced before the Tribunal.
The minutes 916 stated that the meeting after considering the representation made to it by the employees of the Indian Express decided to take up the case of the two workmen and authorised the office bearers of the union to initiate the necessary proceedings.
The Tribunal found that the union initiated a fresh dispute before the Conciliation Officer and that there was no pending case initiated earlier, i.e., before December 1, 1960 by another union as alleged by the appellants which could have been continued by the union.
A copy of the statement of claim filed by the union before the Conciliation Officer was also produced before the Tribunal.
There was evidence that 31 working journalists employed in the respondent company had become the members of the Delhi Union of Journalists.
But they had joined the union after the said order of July 1959.
The Tribunals ' view was that the said 31 working journalists having joined the Delhi Union of Journalists after the cause of action had arisen in July 1959, the said resolution of the union 's executive committee would not constitute espousal as there would be no nexus between the dispute and the union, and therefore, the resolution dated December 1, 1960 did not have the effect of converting the said dispute into an industrial dispute.
Mr. Ramamurti, for the appellants, contended that the resolution dated December 1, 1960 coupled with the fact that the union initiated conciliation proceedings in respect of the demand of the said two workmen was sufficient to transform the dispute into an industrial dispute.
On the other hand, Mr. Gupte, appearing for the company, contended that a dispute which is prima facie an individual dispute may assume the character of an industrial dispute if it is taken up or espoused by an appreciable body of the workmen of the establishment.
Espousal by a union is regarded as sufficient, for, that means that it is an espousal by an appreciable number of workmen in that establishment.
If such a dispute is espoused by an outside union, the workmen of the establishment, appreciable in number, must be members of such a union.
On these contention, the question for our determination is whether the Delhi Union of Journalists can be said to have espoused the dispute of the two.
workmen; if so, whether it did in time, and whether the union not being exclusively a union of the workmen employed in the* respondent company, could espouse the said cause.
The resolution dated December 1, 1960 passed by the executive committee of the union was not disbelieved by the Tribunal.
That, coupled with the fact that the union authorities initiated the conciliation proceeding, must mean that the union had espoused the cause of the two workmen.
The dispute arose in July 1959 when the management refused to treat the two work 917 men as proof readers.
Thereafter the executive committee, after considering a representation made to it by the employees of the respondent company, as the resolution reads, passed the said resolution authorising the office bearers of the union to initiate proceedings in the matter of the said dispute and the secretary accordingly initiated proceedings before the conciliation officer.
In these circumstances, it is not possible to appreciate how the espousal by the union can be said to be beyond time as such espousal can only take place after and not before the dispute arose, or as counsel put it, the cause of action arose.
In The Bombay Union of Journalists vs The Hindu, Bombay(x) this Court in clear terms laid down that the test of an industrial dispute is whether at the date of the reference the dispute was taken up and supported by a union, or by an appreciable number of workmen.
There being no doubt of the union having taken up the cause of the two workmen before the reference the first two parts of the question must be answered in the affirmative.
The next question is whether the cause of a workman in a particular establishment in an industry can be sponsored by a union which is not of workmen of that establishment but is one of which membership is open to workmen of other establishments in that industry.
In Central Provinces Transport Services Ltd. vs Raghunath Gopal Patwardhan(2) this Court noted that decided cases in India disclosed three views as to the meaning of an industrial dispute: (1) a dispute between an employer and a single workman cannot be an industrial dispute, (2) it can be an industrial dispute and (3 ) it cannot per se be an industrial dispute but may become one if taken up by a trade union or a number of workmen.
After discussing the scope of industrial dispute as defined in sec.
2(k) of the Act it observed that the preponderance of judicial opinion was clearly in favour of the last of the three views and that there was considerable reason behind it.
In the Newspapers Ltd. vs The State Industrial Tribunal, U.P.(3) the third respondent was employed as a lino typist by the appellant company.
On an allegation of incompetence he was dismissed from service.
His case was not taken up by any union of workers of the appellant company, nor by any of the unions of workmen employed in similar or allied trades.
But the U.P. Working Journalists Union, Lucknow, with which the third respondent had no concern, took the matter to the Conciliation Board.
On a reference being made to the Industrial Tribunal by the Government the legality of that reference was challenged by the appellant company on the ground that the said dispute could not be treated as an industrial dispute under the U.P. ' which defined by sec. 2 an industrial dispute as having the same (1) ; (2) ; (3) ; 918 meaning assigned to it in sec.
2(k) of the Central Act.
This Court upheld the contention observing that the notification referring the said dispute proceeded on an assumption that a dispute existed between the employer and "his workmen", that Tajammul Hussain, the workman concerned, could not be described as "workmen", nor could the U.P. Working Journalists Union be called "his workmen" nor was there any evidence to show that a dispute had got transformed into an industrial dispute.
The question whether the union sponsoring a dispute must be the union of workmen in the establishment in which the workman concerned is employed or not had not so far arisen.
It seems.
such a question arose for the first time in the case of Bombay Union of Journalists vs The Hindu, Bombay(1).
The decision in that case laid down (1) that the excluded its application to an individual dispute as distinguished from a dispute involving a group of workmen unless such a dispute is made a common cause by a body or a considerable section of workmen and (2) the members of a union who are not workmen of the employer against whom the dispute is sought to be raised cannot by their support convert an individual dispute into an industrial dispute.
Persons who seek to support the cause must themselves be directly and substantially interested in the dispute and persons who are not the employees of the same employer cannot be regarded as so interested.
The Court held that the dispute there being prima facie an individual dispute it was necessary in order to convert it into an industrial dispute that it should be taken up by a union of the employees or by an appreciable number of employees of Hindu, Bombay.
The Bombay Union of Journalists not being a union of the employees of the Hindu, Bombay, but a union of all employees in the industry of journalism in Bombay, its support of the cause of the workman concerned would not convert the individual dispute into an industrial dispute.
The members of such a union cannot be said to be persons substantially and directly interested in the dispute between the workman concerned and his employer, the Hindu Bombay.
But in Workmen v, M/s. Dharampal Premchand(2) this Court, after reviewing the previous decisions, distinguished the case of Hindu, Bombay and held that notwithstanding the width of the words used in sec.
2(k) of the Act a dispute raised by an individual workman cannot become an industrial dispute unless it is supported either by his union or in the absence of a union by a number of workmen, that a union may validly raise a dispute though it may be a minority union of the workmen employed in an establishment that if there was no union of workmen in an establishment a group of employees can raise the dispute which becomes an industrial dispute even though it is a dispute relating to an individual (1) [19623] S.C.R. 893.
(1) [1965] 3 S.C.R. 394.
919 workman, and lastly, that where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same, industry, if such a union takes up the cause of the workman working in an establishment which has no union of its own, the dispute would become an industrial dispute if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute.
The evidence of the union secretary was that in 1959 60, 31 working journalists of the respondent company were members of the Delhi Union of Journalists.
It was nobody 's case that these 31 members did not continue to be the members of that union in 1960 61 also.
If the number of working journalists in the respondent company were to be taken as 68 membership of the union by as many as 31 working journalists would certainly confer on the union a representative character.
Even if the number of working journalists were to be taken as 131, it woUld not be unreasonable to say that 31, i.e., about 25 % of them would, by becoming the members of the union, give a representative character to the union.
It is clear from the evidence that at the material time there was no union of working journalists employed by the respondent company.
Therefore, in accordance with the decision in the Workmen vs M/s. Dharampal Premchand(1) the union can be said to have a representative character qua the working journalists employed in the respondent company.
There can be no doubt that the union had taken up the cause of the two workmen by its executive committee passing the said resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer.
Though the grievance of the two workmen arose in July 1959 when the management declined to accept them as proof readers the union had sponsored their cause before the date of reference as laid down in the case of Hindu, Bombay. 'That being the position it cannot be gainsaid that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis a vis the working journalists in the employ of the respondent company.
We must, therefore, hold that the Tribunal 's view that the dispute was not an industrial dispute was incorrect.
The award, therefore, will have to be set aside and the appeal of the workmen allowed.
There will be no order as to costs.
R.K.P.S. Appeal allowed.
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The workmen were appointed by the respondent company under the designation of copy holders and an order in July 1959, issued by the management, expressly described them as such.
It was alleged however, that despite this order, the management, both before and after the date of the order, had always given to the workmen the work of proofreaders.
A dispute arose whether the two workmen should be treated as proof readers and the executive committee of the Delhi Union of Journalists, at a meeting on December 1, 1966, after considering the representation made to it by the two employees, decided to take up their case and thereafter initiated conciliation proceedings.
Eventually, the Delhi Administration referred the dispute.
to the Industrial Tribunal.
It was contended by the management before the Tribunal that the dispute was an individual dispute and not an industrial dispute so that the Tribunal had no jurisdiction to adjudicate it.
The Tribunal accepted this contention.
Evidence was led before the Tribunal to show that the working Journalists employed by the respondent company numbered 131 out of whom 68 were employed in Delhi.
Out of these, 31 were members of the Delhi Union of Journalists which was an outside union and which they had joined after July 1959.
The Tribunal 's view was that the 31 working journalists having joined the Union *after the cause of action had arisen in July 1959, the resolution of the union 's executive committee would not constitute espousal of the workmen 's dispute as there would be no nexus between the dispute and the Union, and therefore, the resolution dated December 1, 1960 did not have the effect of convening the dispute into an industrial dispute.
In appeal to this Court by special leave, HELD: The Tribunal 's view that the dispute was not an industrial dispute, was incorrect.
Bombay Union of Journalists vs The Hindu, Bombay, ; , Central Provinces Transport Services Ltd. vs Raghunath Gopal Patwardhan; , , Newspapers Ltd. vs State Industrial Tribunal U.P., ; and Workmen vs M/s. Dharampal Premchand, [1965] 3 S.C.R. 394, referred to.
The espousal by the union could not be said to be beyond time as such espousal could only take place after and not before the dispute arose or the cause of action arose.
The test of an industrial dispute is whether at the date of the reference the dispute was taken up and supported by a union, or by an appreciable, number of workmen.
In the present case this test was clearly satisfied.
[917 C] If the number of working journalists in the respondent company were to be taken as 68, membership of the union by as many as 31 working journalists would certainly confer on the union a representative character.
Even if the number of working journalists were to be taken as 131, it 914 would not be unreasonable to say that 31, i.e. about 25% of them would, by becoming the members of the union, give a representative character to the union.
At the material time there was no union of working journalists employed by the respondent company.
Therefore, in accordance with the decision in the Workmen vs M/s. Dharampal Premchand the union could be said to have a representative character qua the working journalists employed in the respondent company.
The union had taken up the cause of the two workmen by its executive committee passing a resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer.
Though the grievance of the two workmen arose in July 1959, when the management declined to accept them as proof readers the union had sponsored their cause before the date of reference as laid down in the case of The Hindu, Bombay. 'That being the position it could not be gain said that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis a vis the working journalists in the employ of the respondent company.
[919 C G]
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Appeal No. 1164 of 1970.
(Appeal by Special Leave from the Order dated the 5th Sep tember 1969 of the Punjab & Haryana High Court in S.C.A. No. 197 of 1968) Naunit Lal, Girish Chandra and R.N. Sachthey, for the appel lant.
S.B. Wad, for respondent No. 1.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The 1st respondent is a co operative transport society carrying on transport business at Kaithal, District Karnal, State of Haryana.
The Society terminated the services of respondents 3 and 4 who were working with it as conductor and driver, respectively.
The State of Punjab, on June 22, 1964 referred the dispute arising out of the dismissal of respondents 3 and 4, under section 10 of the Indus trial Disputes Act (14 of 1947) for the adjudication of the Labour Court, Rohtak.
That Court was then presided over by Shri Jawala Dass.
On Shri Dass 's retirement, Shri Hans Raj Gupta was appointed on June 4, 1965, as the presiding Officer of the Court.
The reference was thereafter heard by him and on April 16, 1966 he gave an award directing the reinstatement of respondents 3 and 4 with 50% backwages from the date of their dismissal until the date of reinstatement.
The Presiding Officer of the Labour Court is the 2nd re spondent to this appeal.
Being aggrieved by the award, the 1 st respondent filed Writ Petition No. 1575 of 1966 in the High Court of Punjab and Haryana under articles 226 and 227 of the Constitution, praying that the award given by the 2nd respondent be set aside on the ground, inter alia, that he was not qualified to hold the post of a Judge of the Labour Court, and, therefore, the award was without jurisdiction.
The Writ petition having been allowed by a Division Bench by its judgment dated March 26, 1968 the State of Haryana has filed this appeal by special leave.
The Presiding Officer of the Labour Court was impleaded to the Writ Petition as the 2nd respondent.
308 The only question for decision in this appeal is whether Shri Hans Raj Gupta who gave his award as the presiding Officer of the Labour Court was qualified for being appoint ed as a Judge of the Labour Court.
Section 7(1) of the provides that the appropriate Gov ernment may constitute one or more Labour Courts for the adjudication of Industrial disputes relating to any matter specified in the Second Schedule to the Act.
A Labour Court, under s.7(2), shall consist of one person only to be appointed by the Government.
Sub section (3) of section 7 reads thus: "(3 ) A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless (a) he is, or has been, a Judge of a High Court; or (b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or (c) he has held the office of the chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950), or of any Tribunal, for a period of not less than two years; or (d) he has held any judicial officer in India for not less than seven years; or (e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years".
It was common ground in the High Court that Shri Gupta did not satisfy the qualifications laid down in any of the clauses (a), (b), (c) and (e) of section 7(3).
It was, however, urged in the High Court, in the first instance, that Shri Gupta had held a judicial offical in India for not less than seven years and was, therefore, qualified for being appointed as a Judge of the Labour Court under clause (d) of s.7 (3 ).
This argument was made before the learned Chief Justice of the High Court who, while hearing the Writ Peti tion singly, felt that the question raised was of public importance.
He, therefore, referred the matter to a Divi sion Bench.
The contention that Shri Gupta was qualified to hold the office of a Judge of the Labour Court under clause (d) of s.7(3) was, however, given up by the State before the Division Bench.
Before us, the learned counsel for the appellant, the State of Haryana, rightly did not pursue the unstatable contention.
Shri Hans Raj Gupta was initially working as an Upper Division Clerk cure Head Clerk.
Thereafter, he worked from January 14, 1947 to October 19, 1954 as the Registrar to the Pensions Appeals Tribunal, Jullundur Cantonment.
After relinquishing that post, he was reverted as an Upper Divi sion Clerk cum Head Clerk, which office he held till Febru ary 17, 1957.
Subsequentiy, he was appointed as an Assistant Settlement officer in which post he worked fill September 1962.
It is obvious, and requires no clever argument to show, that Shri Gupta was holding clerical posts which, with some courtesy may 309 be described as posts calling for and furnishing administra tive experience.
As an Upper Division Clerk, even if the duties of that post were combined with those of the Head Clerk, Shri Gupta was nowhere in the shadow of a judicial office.
As a Registrar of the Pensions Appeals Tribunal, Jullundur Cantonment, he was admittedly discharging adminis trative functions.
A circumstance which seems to have blurred the perception of the State Government perhaps was that the Pensions Appeals Tribunal was a judicial or quasi judicial body and since Shri Gupta was closely associated with it, does not matter in what capacity, he could be said to hold a judicial office.
Administrative proximity with judicial work was regarded as an excuse good enough to elevate the administrator into a holder of judicial office.
This was a wholly misconceived approach to a matter of some moment for, were it so, many a judicial clerk would be qualified to be appointed to a judicial office.
Having never held any judicial office, Shri Gupta totally lacked judicial experience and was incompetent to discharge the functions of a Judge of the Labour Court.
His appointment was therefore illegal and his award without jurisdiction.
We are happy to note that the State Government did not take the time of the DiVision Bench of he High Court and of this Court in arguing an impossible proposition.
Nevertheless, the award given by Shri Gupta as the Presiding Officer of the Labour Court is defended by the State Government on the Plea that Shri Gupta 's appointment cannot be challenged in a collateral proceeding filed in the High Court for challenging the award.
Reliance is placed in support of this submission on the following passage in Cooley 's "A Treatise on the Constitutional Limitations" (8th edn; vol. 2; pages 1255 1358); "An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties.
By being thus chosen and.
observing the precedent conditions, such a person becomes of right entitled to the pos session and enjoyment of the office, and the public, in whose interest the office is creat ed, is entitled of right to have him perform its duties.
If he is excluded from it, the exclusion is both a public offense and a private injury.
An officer de lure may be excluded from his office by either an officer de facto or an intruder.
An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence though having no right in fact.
His color of right may come.
from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed; or made in favor of a party not having 310 the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompa nied by such circumstances of official reputa tion as are calculated to induce people, without inquiry, to submit to or invoke offi cial action on the supposition that the person claiming the office is what he assumes to be.
An intruder is one who attempts to perform the duties of an office without au thority of law, and without the support of public acquiescence.
No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void.
But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State of by some one claiming the office de lure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be.
In all other cases the acta of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties.
This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.
" Equally strong reliance was placed by the State Govern ment on a decision of the Ontario Supreme Court in Rs Toronto N. Co. City of Tornoto (1) in which, after an exami nation of several American and other decisions, Meredith, C.J.O., observed: "That it is not open to attack, in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information." (PP.
551 552) Learned counsel for the State, Shri Naunit Lal, further drew our attention to a decision of the High Court of Tra vancore Cochin in Bhaskera Pillai and Ant.
State(2) which, relying upon the passage in Cooley 's Constitutional Limitations and the Canadian case, held that the appoint ment of the Chief Justice of that Court could not be ques tioned collaterally in a proceeding for leave.
to appeal to the Supreme Court against the decisions rendered by him.
Some sustenance was also sought to the same argument from a decision of a Full Bench of (1) 46 Dominion Law Report 547.
(2) (1950) 5, D.L.R. Travancore Cochin 382.
311 the Allahabad High Court in Queen Empress vs Garsa Sam(1) in which it was held that where a person had in fact been exercising all the functions of a Judge of the High Court, the appointment even if apparently ultra vires must never theless be presumed, in the absence of fuller information, to have been legally made in the exercise of some power, unknown to the Court, vested in the Secretary of State for India.
Broadly, the starting point and the primary basis of these decisions is the passage from Cooley 's Constitutional Limitations, which we have extracted above.
That passage says and means that the acts of officers de facto cannot be suffered to be questioned for want of legal authority except by some direct proceeding.
This important principle, according to Cooley, finds concise expression in the legal maxim that the acts of officers de facto cannot be allowed to be questioned collaterally.
Considering the nature and course of proceedings in the instant case, it seems to us impossible to hold that the challenge to Shri Gupta 's appointment was made in a collat eral proceeding.
That Shri Gupta 's appointment was not challenged in the very proceeding before him does not meet the point and in any case, if the proper mode to challenge the validity of an appointment to a public office is by a petition for the writ of quo warranto, the Labour Court over which Shri Gupta presided was hardly an appropriate forum for challenging the appoinment of its Presiding Officer.
The 1st respondent, the Haryana Co operative Transport Ltd., against whom Shri Gupta gave the award, filed a writ peti tion in the High Court of Punjab and Haryana to challenge the award on the ground that Shri Gupta was not qualified to hold the office of a Judge of the Labour Court and, there fore, the award given by him was without jurisdiction.
The challenge to Shri Gupta 's appointment having been made by a writ petition under articles 226 and 227 of the Constitution, to which Shri Gupta was impleaded as a partyrespondent, the challenge was made directly in a substantive proceeding and not collaterally.
The writ petition was filed mainly with a view to challenge Shri Gupta 's appointment on the ground that he was not qualified to fill the post to which he was appointed.
Having been impleaded to the writ peti tion he had a clear and rightful opportunity to defend his appointment.
The proceedings by way of a writ petition were taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so called judicial decision, but the proceed ing was taken principally and predominantly for challenging the appointment itself.
None of the decisions, nor indeed the passage in Cooley 's Treatise, is therefore, any answer to the prayer that the award be declared to be ultra vires on the ground that the officer who gave it was not qualified to hold that post in the exercise of whose functions the award was given.
The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justi fy the argument that the appointment was being challenged collaterally in a proceeding takes to challenge the award.
Considering the averments in the writ petition, it seems to us clear that the main and real attack on the award (3) I.L.R. 16.
4 1546 SCI/76 312 was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court, in the discharge of whose func tions the award was rendered by him.
The relief of certio rari asked for by writ petition was certainly inappropriate but by clause (c) of paragraph 16, the High Court was invited to issue such other suitable writ, order or direc tion as it deemed fit and proper in the circumstances of the case.
There is no magic in the use of a formula.
The facts necessary for challenging Shri Gupta 's appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground_ that he was not qualified to hold the post of a Judge of the Labour Court.
It must be mentioned that in the Canadian case of re Toronto vs City of Toronto (supra) the contention was that the Ontario Railway and Municipal Board was a "Superior Court" within the meaning of section 96 of the British North America Act and its members, not having been appointed by the Governor General, had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created.
This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General.
In the Travancore Cochin case the Chief JustiCe whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60.
The question really turned on the construc tion of article 376 (2) of the Constitution which confers power on the President is determine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before the commencement of the Constitu tion may continue to hold that office.
Besides, the Chief Justice 's appointment was challenged collaterally in appli cations for leave to appeal to the Supreme Court against the judgments pronounced by him.
The Full Bench judgment of the Allahabad High) rested on the presumption, in the absence of fuller information, that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court.
Deliver ing the judgment of the Court, Edge, C.J. observed at page 157: "Being in ignorance as to whether or not any power existed under which Mr, Justice Burkitt may have been lawfully appointed to act as a Judge of this court, we hold that the presumption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been re butted.
This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appoint ment of one of its acting Judges, but our lack of necessary information,ion as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other.
" Learned counsel for the State of Haryana contends that there is one more impediment in the Court holding that Shri Gupta was not 313 qualified under section 7(3) of the Act to be appointed as a Judge of the Labour Court.
Reliance is placed in support of this argument on section 9(I) of the Act which reads thus: "9.
Finality of orders constituting Boards, etc. (1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall be called in ques tion in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court.
" It is true that s.9(1) is worded so widely and generally that it could cover any and every challenge to the appoint ment to the particular posts therein mentioned.
But it is impossible to construe the provision as in derogation of the remedies provided by articles 226 and 227 of the Consti tution.
The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s.9(1) of the Act.
The words "in any manner" which occur in s.9(1) must, therefore, be given a limited meaning so as to.
bar the jurisdiction of civil courts, in the ordinary exercise of their powers, to enter tain a challenge to appointments mentioned in the sub sec tion.
The High Court of Assam(1), Bombay(2) and Rajasthan(3) have taken, like the High Court of Punjab and Haryana in the instant case, a correct view of the scope and meaning of s.9(1) of the Act by limiting its operation to ordinary powers of the civil Courts.
The rights conferred by articles 226 and 227 can be abridged or taken away only by an appro priate amendment of the Constitution and their operation cannot be whittled down by a provision like the one con tained in s.9( 1 ) of the Act.
Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal.
If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction.
To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under articles 226 and 227.
In the result we affirm the judgment of the High Court and dismiss this appeal.
We are thankful,.
to Shri Wad for assisting the Court as amicus.
S.R. Appeal dismissed.
(1) Bozbarua (G.C.) vs Sate of Assam 1954 Assam 161.
(2) lagannath Vinayak Kale vs Ahmedi (1958) II L.L.J. 50 (Bom.) (3) Mewer Textile Mills Ltd. vs Industrial.
|
The first respondent, a Co operative Transport Society terminated the services of respondent 3 and 4.
The State of Punjab referred the dispute arising out of the dismissal of respondents 3 to 4 under section 10 of the to the Labour Court that was presided over by Mr. Das.
On Mr. Das 's retirement Shri Hans Raj Gupta was ap pointed as the Presiding Officer of the Court.
Mr. Gupta gave an award directing the reinstatement of respondents 3 and 4 with 50 per cent back wages from the date of their dismissal until the date of reinstatement.
The first respondent being aggrieved by the award filed a writ petition in the High Court under Articles 226 and 227 of the Constitution praying that the award given by second respondent be set aside on the ground, inter alia, that he was not qualified to become the Presiding Officer under section 7(3) of the Act since he did not hold any judicial office in India for not less than 7 years.
The contention of respondent No. 2 was that he held such a judicial office because he worked as Upper Division Clerk cum Head Clerk, Assistant Settlemeat Officer and Registrar of the Pensions Appeals Tribunals.
The contention that he held judicial office was not pressed before the High Court and in this Court by the State.
The State Government, however. supported the award on the plea that Mr. Gupta 's appointment cannot be challenged in collateral proceedings filed in the High Court for challenging the award.
Re Toronto & Co. vs City of Toronto 46 Dominion Law Reports 547; Bhaskara Pillai and Anr.
vs State [1950] 5DLR Travailcore Cochin 382 and Queen Empress vs Ganga Ram ILR 16 All.
136 distinguished.
Dismissing the appeal, HELD: 1.
Considering the nature and course of proceedings in the instant it is impossible to hold that the challenge to Mr. Gupta 's appointment was made in a collateral proceeding.
The appointment of Mr. Gupta could not have been challenged before him.
The challenge to his appointment having been made by writ petition under Articles 226 and 227 of the Constitution to which Mr. Gupta was impleaded as a party respondent, the challenge was made directly in a substantive proceeding and not in a collateral proceeding.
Since he was impleaded in the writ petition he had a clear and right ful opportunity to defend kid appointment.
[311 C E] 2.
The mere circumstance that the first respondent did not in so many words ask for a writ of quo warranto cannot justify the argument that the appointment was being chal lenged collaterally in a proceeding taken to challenge the award.
On the averments in the writ petition it is clear that the main and real attack on the award was the ineligi bility of Shri Gupta to occupy the post of a Judge of a Labour Court in the discharge of whose functions the award was rendered by him.
[311 G H, 312A] 307 3.
The relief of certiorari asked for by the writ peti tion was certainly inappropriate but the High Court was also invited to issue such other suitable writ, order or direction as it deemed fit and proper in the circumstances of the case.
There is no magic in the use of a formula.
The facts necessary for challenging the appointment are stated clearly in the writ petition and the challenge to the ap pointment is expressly made on the ground that the officer was not qualified to hold the post.
[312A B] 4.
The finality of the orders of the Labour Court con templated by section 9(1) although widely worded must be given a limited meaning so as to bar the jurisdiction of civil courts in the ordinary exercise of their powers.
It is impossible to construe the provisions in derogation of the remedies provided by Article 226 and 227 of the Constitu tion.
[313D E] Bezparua (G.C.) vs State of Assam A.J.R. 1954 Assam 161, Jagannath Vinayak Kale vs Ahmadi [1958] II L.L.J. 50 (Bom.) and Mewar Textile Mills Ltd. vs Industrial Tribunal A.I.R. , approved.
|
Appeal No. 2230 (NT) of 1977.
From the Judgment and Order dated 13.12.76 of the Gujarat High Court in Income Tax Reference No. 36 of 1972.
Mrs. A.K. Verma, for JBD & Co. for the Appellant.
G.C. Sharma, E.U.Eradi and T.R. Talwar for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
This appeal is preferred by the assessee against the judgment of the Gujarat High Court answering the question, referred at the instance of Revenue, against the assessee.
The following question was referred under Section 256(1) of the Income Tax Act for the opinion of the High Court: 111 "Whether on the facts and in the circumstances of the case, the following amounts are to be included in the computation of capital of the assessee Company under Rule 1.
of the Second Schedule of the : (i) Amount set apart for contingent Rs. 4,50,000 liability (taxation) (ii) Amount set apart for proposed divi Rs. 19,90,000 dend (iii) Reserve for Depreciation fund in ex Rs. 6,77,122 cess of the amount allowed as depreciated in income tax (iv) Excess provision in Revenue Acco Rs. 3,61,876 unts disallowed in income tax assess ment for the assessment years.
" Though the question refers to four items, we are concerned in this appeal only with the first item.
We shall, therefore, state the facts only in so far as they are relevant to the said item.
The assessee is a Private Limited Company.
The assessment year concerned is 1963 64.
Sometime in 1955 56, a notice was issued to the assessee under Section 23A of the Income Tax Act, 1922.
Apprehending that it may become liable to pay additional tax under the said provision, the assessee set apart a sum of Rs. 6,52,000 in its Books for the year ending March 31, 1956.
Out of this amount an amount of Rs. 2,02,000 was transferred to the profit and loss account during the year 1958 59, with the result that a sum of Rs. 4,50,000 continued to remain and was shown as a provision set apart to meet the taxation liability which the assessee called a contingent liability.
At the same time the assessee had been contesting the proceedings taken against it under Section 23A.
Though it failed at the earlier stages, it succeeded ultimately in the Letters Patent Appeal filed by it in the East Punjab High Court.
In the said appeal decided on May 24, 1965, it was held that no action can be taken against the assessee under Section 23A.
With this order, all the orders passed and notices issued under the said provision prior to the date of the said judgment stood vacated.
In its assessment relating to the assessment year 1963 64 under the 112 , the assessee contended that the said sum of Rs. 4,50,000 is a reserve and should be included in its capital for the purposes of the Act.
The Income Tax Officer did not agree and the matter was ultimately taken to the Income Tax Appellate Tribunal.
By the date this appeal was taken up for hearing, another appeal preferred by the assessee relating to the subsequent assessment year (1964 65) was also before the Tribunal.
That appeal arose under the provisions of the Companies Sur tax Profits Act, 1964 which replaced the .
The Tribunal first disposed of the appeal relating to the assessment year 1964 65.
In so far as the item in question is concerned it held that it was a reserve.
Following the said judgment, the appeal pertaining to the assessment year 1963 64 was also allowed.
(It may be stated that the order of the Tribunal relating to assessment year 1964 65 was subsequently rectified by an order dated February 15, 1972 and the said item was held to be a provision.
But no such order was passed with respect to the assessment year 1963 64).
Aggrieved by the judgment of the Tribunal the Revenue obtained the aforesaid reference.
The High Court answered the same.
in favour of Revenue and against the assessee following the decision of this Court in Metal Box Company of India Limited vs Their Workmen, It held that the said amount being a provision made towards a liability which had attached on account of the issuance of a notice was a provision and not a reserve.
In this appeal the correctness of the said view is questioned.
The learned counsel for the appellant assessee submitted that inasmuch as no order levying additional tax under Section 23A was made on or before the date relevant to the assessment year 1963 64 the said amount cannot be treated as a provision.
We find it difficult to agree.
In Metal Box, which has been followed in Vazir Sultan Tobacco Co. Ltd etc.
vs Commissioner of Income Tax, Andhra Pradesh etc.
, , the distinction between provision and reserve is stated in the following words: "The distinction between a provision and a reserve is in commercial accountancy fairly well known.
Provisions made against anticipated losses and contingencies are charges against profits and, therefore, to be taken into account against gross receipts in the P. & L. accounts and the balance sheet.
On the other hand, reserves are appropriations of profits, the assets by which they are rep resented being retained to form part of the capital 113 employed in the business.
Provisions are usually shown in the balance sheet by way of deductions from the assets in respect of which they are made whereas general reserves and reserve funds are shown as part of the proprietor 's interest.
(See Spicer and Pegler 's Book keeping and Accounts, 15th Edn.
p. 42).
" While approving the said statement it was stated in Vazir Sultan: "In other words the broad distinction between the two is that whereas a provision is a charge against the profits to be taken into account against gross receipts in the P.& L. account, a reserve is in appropriation of profits, the asset or assets by which it is represented being retained to form part of the capital employed in the business.
Bearing in mind the aforesaid broad distinction we will briefly indicate how the two concepts are defined and dealt with by the .
" Applying the said test it must be held that the provision made by the assessee in its Books for meeting the anticipated liability of tax (under Section 23A) was indeed a provision and not a reserve.
The assessee itself called it a provision.
It did not call it a reserve nor was it set apart or appropriated as a reserve.
We are not suggesting that the description given or the Book entries made by the assessee are conclusive.
We are only emphasizing how the assessee understood the said item itself.
In the circumstances of the case we must hold that the High Court was right in holding it to be a provision and not a reserve.
The appeal accordingly fails and is dismissed.
No costs.
G.N. Appeals dismissed.
|
The appellant assessee was issued a notice under Section 23A of the Income tax Act, 1922.
The assessee contested the same.
At the same time, it set apart a sum of Rs. 6,52,000 in its books for the year ending 31st March 1956, to meet the contingency that may arise if his plea failed.
During the year 1958 59 an amount of Rs. 2,02,000 out of the said amount was transferred to the profit & loss account. 'Me balance amount of Rs. 4,50,000 continued to remain and was shown as a provision set apart to meet the aforesaid contingent liability.
The assessee has been contesting the said proceedings.
Ultimately it succeeded before the High Court which held that no action could be taken against the assessee under Section 23A.
For the assessment year 1963 64 in proceedings under the , the assessee claimed that the said sum of Rs. 4,50,000 was a reserve and should be included in its capital.
The Income tax Officer did not agree.
Ultimately the matter reached the Tribunal which agreed with the assessee.
At the instance of Revenue the question as to whether the sum of Rs. 4,50,000 set apart for contingent liability (taxation) was to be included in the computation of capital of the assessee company under Rule 1 of the Second Schedule of the was referred to the High Court.
The High Court having answered the question against the assessee, the, assessee has preferred the present appeal contending that inasmuch as no order levying additional tax under Sec.
23A was made the amount could not be treated as a provision.
109 110 Dismissing the appeals, this Court, HELD : 1.1.
Provisions made against anticipated losses and contingencies are charges against profits and, therefore, to be taken into account against gross receipts in the P.&L. accounts and the balance sheet.
On the other hand, reserves are appropriations of profits, the assets by which they are represented being retained to form part of the capital employed in the business.
[112G] 1.2.
In the instant case, the provision made by the assessee in its Books for meeting the anticipated liability of tax (under Section 23A of the Income Tax Act, 1922) was indeed a provision and not a reserve.
The assessee Itself called it a provision.
It did not call it a reserve nor was the amount set apart or appropriated as a reserve.
It is not to suggest that the description given or the Book entries made by the assessee are conclusive, but to emphazise how the assessee understood the said item itself In the circumstances of the case the High Court was right in holding it to be a provision and not a reserve, and so the amount of Rs. 4,50,000 was not to be included in the computation of Capital of the assessee Company.
[113E] Metal Box Company of India Limited vs Their Workmen, and Vazir Sultan Tobacco Co.Ltd.
vs Commissioner of Income Tax, Andhra Pradesh etc.
, , relied on.
|
vil Appeal Nos.
2839 40 of 1989 etc.
From the Judgment and Order dated 6.12.
1984 of the Delhi High Court in R.F.A. Nos. 113 and 114 of 1968.
K. Parasaran, Attorney General, T.S. Krishnamurthy Iyer, B.R.L. Iyengar, M.S. Gujaral, F.S. Nariman, A.K. Ganguli, K. Swamy, C.V. Subba Rao, R.D. Agrawala, P. Parmeshwaran, O.P. Sharma, R.C. Gubrele, K.R. Gupta, R.K. Sharma, K.L. Rathee, Chandulal Verma, Subhash Mittal, section Balakrishnan, N.B. Sinha, K.K. Gupta, Sanjiv B. Sinha, M.M. Kashyap, P.C. Khunger, Swaraj 321 Kaushal, Pankaj Kalra, S.K. Bagga, Ravinder Narain, Sumeet Kachwala, section Sukumaran, K.R. Nagaraja, S.S. Javali, Ms. Lira Goswami, D.K. Das, B.P. Singh, Ranjit Kumar, Santosh Hegde, M.N. Shroff, P.N. Misra, D.C. Taneja, P.K. Jena, A.K. Sanghi and M. Veerappa for the appearing parties.
The Judgment of the Court was delivered by PATHAK, CJ.
The question of law referred to us for decision in these cases is: "Whether under the Land Acquisition Act, 1894 as amended by the Land Acquisition (Amendment) Act, 1984 the claimants are entitled to sola tium at 30 per cent of the market value irre spective of the dates on which the acquisition proceedings were initiated or the dates on which the award had been passed"? It would suffice if we briefly refer to the facts in the Civil Appeals arising out of Special Leave Petitions Nos.
8194 8195 of 1985: Union of India & Another vs Raghubir Singh.
The land belonging to the respondents in village Dhaka was taken by compulsory acquisition initiated by a notifica tion under section 4 of the Land Acquisition Act, 1894 issued on 13 November, 1959.
The award with regard to compensation was made by the Collector on 30 March, 1963.
A reference under section 18 of the Act was disposed of by the Additional District Judge on 10 June, 1968.
He enhanced the compensation.
The respondents preferred an appeal to the High Court claiming further compensation.
During the pendency of the appeal the Land Acquisition (Amendment) Bill 1982 was introduced in Parliament on 30 April, 1982, and became law as the Land Acquisition (Amendment) Act, 1984 when it received the assent of the President on 24 September, 1984.
The High Court disposed of the appeal by its Judgment and Order dated 6 December, 1984.
While it raised the rate of compensation, it also raised the rate of interest payable on the compensa tion, and taking into account the change in the law effected by the Land Acquisition (Amendment) Act, 1984 (referred to hereinafter as "the Amendment Act") it awarded solatium at 30 per cent of the market value.
The Judgment and Order of the High Court is the subject of these appeals.
When these cases came up before a Bench of two learned Judges 322 (E.S. Venkataramiah and R.B. Misra, JJ.) on 23 September, 1985, they referred to two earlier decisions of this Court and expressed the view that the question set forth above required re examination by a larger Bench of five Judges.
It was further directed that the other questions involved in the petitions would be considered after the aforesaid ques tion had been resolved by the larger Bench.
The two deci sions referred to in the Order of the learned Judges are K. Kamalajammanniavaru (dead) by Lrs.
vs Special Land Acquisi tion Officer, decided by O. Chinnappa Reddy and Sabyasachi Mukharji, JJ.
on 14 February, 1985 and Bhag Singh and Ors.
vs Union Territory of Chandigarh, ; decided by P.N. Bhagwati, C.J., A.N. Sen and D.P. Madon, JJ.
on 14 August, 1985.
Solatium is awarded under sub section
(2) of section 23 of the Land Acquisition Act.
Before the Amendment Act was enacted the sub section provided for solatium at 15 per cent of the market value.
By the change introduced by the Amendment Act the amount has been raised to 30 per cent of the market value.
Sub section
(2) of section 30 of the Amendment Act specifies the category of cases to which the amended rate of solatium is attracted.
In K. Kamalajammanniavaru, (supra), the two learned Judges held that sub section
(2) of section 30 referred to orders made by the High Court or the Supreme Court in ap peals against an award made between 30 April, 1982 and 22 September, 1984, and that therefore solatium at 30 per cent alone pursuant to sub section
(2) of section 30 had to be awarded in such cases only.
In Bhag Singh (supra), however, the three learned Judges held that sub section
(2) of section 30 referred to proceedings relating to compensation pending on 30 April, 1982 or filed subsequent to that date, whether before the Collector or before the Court or the High Court or the Supreme Court, even if they had finally terminated before the enactment of the Amending Act.
In taking that view they overruled K. Kamalajammanniavaru, (supra) and approved of the opinion expressed in another case, State of Punjab vs Mohinder Singh and another, decided by section Murtaza Fazal Ali, A. Varadarajan and Ranganath Misra, JJ.
on 1 May, 1985.
At the outset, a preliminary objection has been raised by Shri B.R.L. Iyengar to the validity of the reference of these cases to a larger Bench.
He contends that the mere circumstance that a Bench of two learned Judges finds itself in doubt about the correctness of the view taken by a Bench of three learned Judges should not provide reason for refer ring the matter to a larger Bench.
The preliminary objection raised by Shri Iyengar has been vigorously resisted by the 323 appellants.
Having regard to the submissions made before us, we think it necessary to lay down the law on the point.
India is governed by a judicial system identified by a hierarchy of courts, where the doctrine of binding precedent is a cardinal feature of its jurisprudence.
It used to be disputed that Judges make law.
Today, it is no longer a matter of doubt that a substantial volume of the law govern ing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts.
"There was a time: ' observed Lord Reid, "when it was thought almost indecent to suggest that Judges make law They only declare it . .
But we do not believe in fairy tales any more "The Judge as law Maker" p. 22.
" In countries such as the United Kingdom, where Parliament as the legislative organ is supreme and stands at the apex of the constitution al structure of the State, the role played by judicial law making is limited.
In the first place the function of the courts is restricted to the interpretation of laws made by Parliament, and the courts have no power to question the validity of Parliamentary statutes, the Diceyan dictum holding true that the British Parliament is paramount and all powerful.
In the second place, the law enunciated in every decision of the courts in England can be superseded by an Act of Parliament.
As Cockburn CJ.
observed in Exp.
Canon Selwyn, "There is no judicial body in the country by which the validity of an Act of Parliament could be questioned.
An act of the Legislature is superior in authority to any Court of Law".
And Ungoed Thomas J., in Cheney vs Conn, referred to a Parliamentary statute as "the highest form of law . .which prevails over every other form, of law.
" The position is substantially different under a written Consti tution such as the one which governs us.
The Constitution of India, which represents the Supreme Law of the land, envis ages three distinct organs of the State, each with its own distinctive functions, each a pillar of the State.
Broadly, while Parliament and the State Legislature in India enact the law and the Executive government implements it, the judiciary sits in judgment not only on the implementation of the law by the Executive but also on the validity of the Legislation sought to be implemented.
One of the functions of the superior judiciary in India is to examine the compe tence and validity of legislation, both in point of legisla tive competence as well as its consistency with the Funda mental Rights.
In this regard, the courts in India possess a power not known to the English 324 Courts.
Where a statute is declared invalid in India it cannot be reinstated unless constitutional sanction is obtained therefore by a constitutional amendment or an appropriately modified version of the statute is enacted which accords with constitutional prescription.
The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law.
The power extends to examining the validi ty of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Consti tution.
(See His Holiness Kesavananda Bharati Sripadagalava ru vs State of Kerala, ; Smt.
Indira Nehru Gandhi vs Shri Raj Narain, ; Minerva Mills Ltd. and others vs Union of India and others, [1980] 2 SCC 591 and recently in S.P. Sampath Kumar etc.
vs Union of India and Ors.
, ; With this impressive expanse of judicial power, it is only right that the superi or courts in India should be conscious of the enormous responsibility which rests on them.
This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared it is, by Article 141 of the Constitution, binding on all courts within the territory of India.
Taking note of the hierarchical character of the judi cial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent.
It is commonly known that most decisions of the courts are of significance not merely because they consti tute an adjudication on the rights of the parties and re solve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases.
In this latter aspect lies their particular value in developing the jurisprudence of the law.
The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs.
And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.
But like all principles evolved by man for the regula tion of the social order, the doctrine of binding precedent is circumscribed in its governance by perceptible limita tions, limitations arising by reference to the need for re adjustment in a changing society, a re adjustment of legal norms demanded by a changed social context.
This need for 325 adapting the law to new urges in society brings home the truth of the Holmesian aphorism that "the life of the law has not been logic it has been experience".
Oliver Wendell Holmes, "The Common Law" p. 5 and again when he declared in another study that Oliver Wendell Holmes, "Common Carriers and the Common Law", (1943) 9 Curr.
L.T. 387, 388 "the law is forever adopting new principles from life at one end," and "sloughing off" old ones at the other.
Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra legal propositions emerging from experience to serve as premises, or by experience guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined.
Julius Stone, "Legal Systems & Lawyers Rea soning", pp.
58 59.
Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice making which could well affect the validity of existing legal dogma.
The search for solu tions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness", but also among propositions from outside the ruling law, corre sponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of jus tice within the new parameters.
The universe of problems presented for judicial choice making at the growing points of the law is an expanding universe.
The areas brought under control by accumulation of past judicial choice may be large.
Yet the areas newly presented for still further choice, because of changing social, economic and technological conditions are far from inconsiderable.
It has also to be remembered, that many occasions for new options arise by the mere fact that no generation looks out on the world from quite the same van tage point as its predecessor, nor for the matter with the same perception.
A different vantage point or a different quality of perception often reveals the need for choice making where formerly no alternatives, and no problems at all, were Perceived.
The extensiveness of the areas for judicial choice at a particular time is a function not only of the accumulation of past decisions, not only of changes in the environment, but also of new insights and perspec tives both on old problems and on the new problems thrown up by changes entering the cultural and social heritage.
326 Not infrequently, in the nature of things there is a gravity heavy inclination to follow the groove set by prece dential law.
Yet a sensitive judicial conscience often persuades the mind to search for a different set of norms more responsive to the changed social context.
The dilemma before the Judge poses the task of finding a new equilibri um, prompted not seldom by the desire to reconcile opposing mobilities.
The competing goals, according to Dean Roscoe Pound, invest the Judge with the responsibility "of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires." Roscoe Pound, "an Introduction to the Phi losophy of Law" p. 19.
The reconciliation suggested by Lord Reid in "The Judges as Law Maker" pp. 25 6 lies in keeping both objectives in view, "that the law shall be certain, and that it shall be just move with the times.
" An elaboration of his opinion is contained in Myers vs Director of Public Prosecutions, , where he expressed the need for change in the law by the court and the limits within which such change could be brought about.
He said: ibid at p. 1021.
"I have never taken a narrow view of the functions of this House as an appellate tribu nal.
The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by ex pressions of opinion in this House in old cases.
But there are limits to what we can or should do.
If we are to extend the law it must be by the development and application of fundamental principles.
We cannot introduce arbitrary conditions or limitations: that must be left to legislation.
And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.
" Whatever the degree of success in resolving the dilemma, the Court would do well to ensure that although the new legal norm chosen in response to the changed social climate repre sents a departure from the previously ruling norm, it must, nevertheless.
carry within it the same principle of certain ty, clarity and stability.
The profound responsibility which is.borne by this Court in its choice between earlier established standards and the formulation of a new code of norms is all the more sensitive and significant because the 327 response lies in relation to a rapidly changing social and economic society.
In a developing society such as India the law does not assume its true function when it follows a groove chased amidst a context which has long since crum bled.
There will be found among some of the areas of the law norms selected by a judicial choice educated in the experi ence and values of a world which passed away 40 years ago.
The social forces which demand attention in the cauldron of change from which a new society is emerging appear to call for new perceptions and new perspectives.
The recognition that the times are changing and that there is occasion for a new jurisprudence to take birth is evidenced by what this Court said in The Bengal Immunity Company Limited vs The State of Bihar and Others, , when it ob served that it was not bound by its earlier judgments and possessed the freedom to overrule its judgments when it thought fit to do so to keep pace with the needs of changing times.
The acceptance of this principle ensured the preser vation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society.
The question then is not whether the Supreme Court is bound by its own previous decisions.
It is not.
The question is under what circumstances and within what limits and in what manner should the highest Court over turn its own pronouncements.
In the examination of this question it would perhaps be appropriate to refer to the response of other jurisdictions, specially those with which the judicial system in India has borne an historical relationship.
The House of Lords in England provides the extreme example of a judicial body which until recently disclaimed the power to overrule it self.
It used to be said that the House of Lords did never overrule itself but only distinguished its earlier deci sions.
An erroneous decision of the House of Lords could be set right only by an Act of Parliament.
(See Street Tramways vs London County Council, ; and Radcliffe vs Ribble Motor Services Ltd., ,245. ) Apparent ly bowing to the pressure of a reality forced upon it by reason of a rapidly gathering change in the prevailing socio economic structure, on 26 July, 1966, Lord Gardiner, L.C., made the following statement on behalf of himself and the Lords of Appeal in Ordinary: "Their lordship regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases.
It provides at least 328 some degree of certainty upon which individu als can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their lordships nevertheless recog nise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.
They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal Law.
" Since then the House of Lords has framed guidelines in a series of cases decided upto to 1975 and the guidelines have been summarised in Dr. Alan Paterson 's "Law Lords" 1982: pp.
156 157.
He refers to several criteria articulated by Lord Reid in those cases.
The freedom granted by the 1966 Practice Statement ought to be exercised sparingly (the 'use sparingly ' crite rion) (Jones vs Secretary of State for Social Services, [1972] A.C. at 966.
A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the 'legitimate expectations ' criterion) (Ross Smith vs Ross Smith, , 303 and Indyka vs Indyka, [1969] I A.C. 33, 69.) 3.
A decision concerning questions of construction of statute or other documents ought not to be overruled except in rare and exceptional cases (the 'Construction ' criterion) Jones, at 966.
4(a) A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequences of departing from it (the 'unforseeable consequences ' crite rion) (Steadman vs Steadman, ,542.
(b) A decision ought not to be overruled if to do so would involve a change that ought to be part of a 329 comprehensive reform of the law.
Such changes are best done 'by legislation following on a wide survey of the whole field ' (the 'need for comprehensive reform ' criterion) (DPP vs Myers, , 1022; Cassell vs Broome, ; , 11086 and Haughton vs Smith, [1975] A.C. 476,500).
In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided.
There must be some additional reasons to justify such a step (the 'precedent merely wrong ' crite rion) Knuller vs DPP, [1973] A .C. 435,455; 6.
A decision ought to be overruled if it causes such great uncertainty in practice that the Parties ' advisers are unable to give any clear indication as to what the courts will hold the law to be (the 'rectification of uncertainty ' criterion) Jones, at 966; Oldendroll & Co. vs Tradex Export, S.A. 1974 479,533,535. 7.
A decision ought to be overruled if .in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy (the 'unjust or outmoded ' criterion) ibid Conway vs Rimmer, ; ,938.
Dr. Paterson noted that between the years 1966 and 1988 there were twenty nine cases in which the House of Lords was invited to overrule one of its own precedents, that the House of Lords did so in eight of them, while in a further ten cases at least one of the Law Lords was willing to overrule the previous House of Lords precedent.
In a consid erable number of other cases, however, the Law Lords seemed to prefer to distinguish the earlier decisions rather than overrule them.
The High Court of Australia, the highest Court in the Commonwealth, has reserved to itself the power to reconsider its own decision, but has laid down that the power should not be exercised upon a mere suggestion that some or all the member of the later Court would arrive at a different con clusion if the matter were res integra.
In the Tramways case; , , Griffith, C.J., while doing so administered the following caution: "In my opinion, it is impossible to maintain as an abstract proposition that Court is either legally or technically bound by previ ous decisions.
Indeed, it may, in a proper case, be 330 its duty to disregard them.
But the rule should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon the mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another Court which this Court is bound to follow; not, I think, upon a mere suggestion, that some or all of the members of the later Court might arrive at a different conclusion if the matter was res integra.
Otherwise there would be grate danger of want of continuity in the interpretation of law.
" In the same case, Barton, J. observed at p. 69: " . .
I would say that I never thought that it was not open to this Court to review its previous decisions upon good cause.
The question is not whether the Court can do so, but whether it will, having due regard to the need for continuity and consistency in the judicial decision.
Changes in the number of appointed Justices can, I take it, never of themselves furnish a reason for review . .
But the Court can always listen to argument as to whether it ought to review a particular decision, and the strongest reason for an overruling is that a decision is manifestly wrong and its continuance is injurious to the public interest".
In the United States of America the Supreme Court has explicitly overruled its prior decision in a number of cases and reference will be found to them in the judgment of Brandeis, J. in State of Washington vs Dawson & Co., ; where he said: "The doctrine of Stare decisis should not deter us from overruling that case and those which follow it.
The decisions are recent ones.
They have not been acquiesced in.
They have not created a rule of property around which vested interests have clustered.
They affect solely matters of a transitory nature.
On the other hand, they affect seriously the lives of men, women and children, and the general welfare.
Stare decisis is ordinarily, a wise rule of action.
But it is not a univer sal, inexorable command.
The instances in which the Courts have disregarded its admonition a re many.
" 331 Elaborating his point in his dissenting judgment in David Burnel vs Coronado Oil & Gas Company, ; ; 76 L.Ed. 815, Brandeis, J. observed: "Stare decisis usually the wise policy, because in most matters it is more important that the applicable rule of law be settled right.
Compare National Bank vs Whitney, 103 U.S. 99; 26 L.Ed.
443 444.
This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.
But in cases involving the Feder al Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.
The Court bows to the lessons of experience and the force of better reasoning recognising that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.
" The Judicial.
Committee of the Privy Council also took the view that it was not bound in law by its earlier deci sions, but in In re Compensation to Civil Servants, L.R. ; A.I.R. 1929 P.C. 84, 87 it declared that it "would hesitate long before disturbing a solemn decision by a previous Board, which raised an identical or even a simi lar issue for determination" and reiterated that reservation in the Attorney General of Ontario vs The Canada Temperance Federation, L.R. 76 Q.A. 10 and Phanindra Chandra Neogy vs The King; , These cases from England, Australia and the United States were considered by this Court in The Bengal Immunity Company Limited vs The State of Bihar and others, (supra), perhaps the first recorded instance of the Supreme Court in this country being called upon to consider whether it could overrule an earlier decision rendered by it.
A Bench of seven Judges assembled to consider whether the majority decision of a Constitution Bench of five Judges in State of Bombay vs The United Motors (India) Ltd., ; should be reconsidered.
Four Judges of the Bench of seven said it should and voted to overrule the majority decision in the United Motors, (supra).
The remaining three voted to the contrary.
Das, Acting C.J., speaking for himself and on behalf of Bose, Bhagwati and Jafar Imam, JJ, preferred the approach adopted by the United States Supreme Court since, in the view of that learned Judge, the position in India approximated more closely to that obtaining in the United states rather than to the position in England, where Parlia ment could rectify the situation by a simple majority, and to that in Australia, where the mistake could be 332 corrected in appeal to the Privy Council.
The learned Judge observed: "There is nothing in our Constitution which pre vents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public." And reference was made to the circumstance that Article 141 of the Constitution made the law declared by this Court binding on all Courts in India.
Speaking with reference to the specific case before the Court, the learned Judge referred to the far reaching effect of the earlier decision in the United Motors (supra) on the general body of the consuming public, and that the error committed in the earlier decision would result in perpetuat ing a tax burden erroneously imposed on the people, giving rise to a consequence "manifestly and wholly unauthorised." The learned Judge observed: "It is not an ordinary pronouncement declaring the rights of two private individuals inter se.
It involves an adjudication on the taxing power of the States as against the consuming public generally.
If the decision is errone ous, as indeed we conceive it to be, we owe it to the public to protect them against the illegal tax burdens which the States are seeking to impose on the strength of that errone ous recentdecision".
Cautioned that the Court should not differ merely because a contrary view appeared preferable, the learned Judge affirmed that "we should not lightly dissent from a previous pronouncement of this Court.
" But if the previous decision was plainly erroneous, he pointed out, there was a duty on the Court to say so and not perpetuate the mistake.
The appeal to the principle of stare decisis was rejected on the ground that (a) the decision intended to be overruled was a very recent decision and it did not involve overruling a series of decisions, and (b) the doc trine of stare decisis was not an inflexible rule, and must, in any event, yield where following it would result in perpetuating an error to the detriment of the general wel fare of the public or a considerable section thereof.
Since then the question as to when should the Supreme Court overrule its own decision has been considered in several cases.
Relying on the Bengal Immunity case, Khanna, J. remarked that certainly in the law, which was an essen tial ingredient of the Rule of Law, would be considerably eroded if the highest court of the land lightly overruled the view expressed by it in earlier cases.
One instance where such overruling could be permissible was a situation where contextual values giving birth to the earlier view had altered substantially since.
333 In Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors.
, ; he explained: "Some new aspects may come to light and it may become essen tial to cover fresh grounds to meet the new situations or to overcome difficulties which did not manifest themselves or were not taken into account when the earlier view was pro pounded.
Precedents have a value and the ratio decidendi of a case can no doubt be of assistance in the decision of future cases.
At the same time we have to, as observed by Cardozo, guard against the notion that because a principle has been formulated as the ratio decidendi of a given prob lem, it is therefore to be applied as a solvent of other problems, regardless of consequences, regardless of deflect ing factors, inflexibly.
and automatically, in all its pristine generality (see Selected Writings, p. 31).
As in life so in law things are not static.
" In Lt. Col. Khajoor Singh vs The Union of India & Anoth er; , the majority of this court emphasised that the court, should not depart from an interpretation given in an earlier judgment of the court unless there was a fair amount of unanimity that the earlier decision was manifestly wrong.
In Keshav Mills Company vs Commissioner of Income Tax, ; ,921 this court observed that a revision of its earlier decision would be justified if there were compelling and substantial reasons to do so.
In Sajjan Singh vs State of Rajasthan, ; ,947 948 the court laid down the test: 'Is it absolutely necessary and essential that the question already decided should be reo pened? ', and went on to observe: 'the answer to this ques tion would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good and the validity and compelling character of the considerations urged in support of the contrary view. ' There can be no doubt, as was observed in Girdhari Lal Gupta vs D.H. Mill, ; that where an earlier relevant statutory provision has not been brought to the notice of the court, the decision may be reviewed, or as in Pillani Investment Corporation Ltd. vs I.T.O. 'A ' Ward, Calcutta & Anr., ; , if a vital point was not considered.
A more compendious examination of the problem was undertaken in Keshav Mills Company vs Commissioner of Income Tax, (supra) where the Court pointed out: "It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should 334 govern the approach of the Court in dealing with the ques tion of reviewing and revising its earlier decisions.
It would always depend upon several relevant considerations: What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and materi al statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconven ience, hardship or mischief? These and other relevant con siderations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions.
These considerations become still more significant when the earlier decision happens to be a unanimous decision of the Bench of five learned Judges of this Court.
" Much importance has been laid on observing the finality of decisions rendered by the Constitution Bench of this Court, and in Ganga Sugar Company vs State of Uttar Pradesh, ; , 782 the Court held against the finality only where the subject was 'of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong '.
It is not necessary to refer to all the cases on the point.
The broad guidelines are easily deducible from what has gone before.
The possibility of further defining these guiding principles can be envisaged with further juridical experience, and when common jurisprudential values linking different national systems of law may make a consensual pattern possible.
But that lies in the future.
There was some debate on the question whether a Division Bench of Judges is obliged to follow the law laid down by a Division Bench of a larger number of Judges.
Doubt has arisen on the point because of certain observations made by O. Chinnappa Reddy, J. in 335 Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, AIR 1985 SC 23 1.
Earlier, a Division Bench of two Judges, of whom he was one, had expressed the view in T.V. Vatheeswaran vs The State of Tamil Nadu, that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle a person under sentence of death to invoke Article 21 of the Constitution and demand the quashing of the sentence of death.
This would be so, he observed, even if the delay in the execution was occasioned by the time necessary for filing an appeal or for considering the reprieve of the accused or some other cause for which the accused himself may be responsible.
This view was found unacceptable by a Bench of three Judges in Sher Singh & Ors.
vs State of Punjab, ; where the learned Judges observed that no hard and fast rule could be laid down in the matter.
In direct disagreement with the view in T.V. Vatheeswaran, (supra), the learned Judges said that account had to be taken of the time occupied by pro ceedings in the High Court and in the Supreme Court and before the executive authorities, and it was relevant to consider whether the delay was attributable to the conduct of the accused.
As a member of another Bench of two Judges, in Javed Ahmed Abdul Hamid Pawala, (supra) O. Chinnappa Reddy, J. questioned the validity of the observations made in Sher Singh, (supra) and went on to note, without express ing any concluded opinion on the point, that it was a seri ous question "whether a Division Bench of three Judges could purport to overrule the judgment of a Division Bench of two Judges merely because there is larger than two.
The Court sits in Divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges.
Vide Young vs Bristol Aero plane Co. Ltd., It may be otherwise where a Full Bench or a Constitution Bench does so.
" It is pertinent to record here that because of the doubt cast on the validity of the opinion in Sher Singh, (supra), the question of the effect of delay on the execution of a death sentence was referred to a Division Bench of five Judges, and in Triveniben vs State of Gujarat, AIR 1989 SC 142 the Constitution Bench overruled T.V. Vatheeswaran, (supra).
What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitu tional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time.
It cannot be doubted that in order to promote consist ency and certainty 336 in the law laid down by a superior Court, the ideal condi tion would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so.
But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative there to, and by such other considerations which the Chief Jus tice, in whom such authority devolves by convention, may find most appropriate.
It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the devel opment of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges.
This principle has been followed in India by several generations of Judges.
We may refer to a few of the recent cases on the point.
In John Martin vs The State of West Bengal, ; a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha vs State of West Bengal, ; decided by a Division Bench of five Judges, in preference to Bhut Nath Mate vs State of West Bengal, ; decided by a Division Bench of two Judges.
Again in Smt.
India Nehru Gandhi vs Shri Raj Narain, Beg, J. held that the Constitution Bench of five Judges was bound by the Constitution Bench 01 ' thirteen Judges in His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala, [1973] Suppl.
1 SCR.
In Ganapati Sitaram Balvalkar & Anr.
vs Waman Shripad Mage (Since Dead) Through Lrs., this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court.
And in Mattulal vs Radhe Lal, ; this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be, preferred over the deci sion of a Division Bench of a smaller number of Judges.
This Court also laid down in Acharaya Maharajshri Narandrapra sadji AnandprasadjiMaharaj etc.
vs The State of Gujarat & Ors., ; that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or other wise of the views of the other.
The principle was reaffirmed in Union of India & Ors.
vs Godfrey Philips India Ltd., [1985] 4 337 SCC 369 which noted that a Division Bench of two Judges of this Court in Jit Ram vs State of Haryana, ; had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills vs State of U.P., ; on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.
We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.
We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges un less, for compelling reasons that is not conveniently possi ble.
Upon the aforesaid considerations, and in view of the nature and potential of the questions raised in these cases we are of the view that there was sufficient justification for the order dated 23 September, 1985 made by the Bench of two learned judges referring these cases to a larger Bench for reconsideration of the question decided in K. Kamalajam mannivaru (dead) by Lrs., (supra) and Bhag Singh and Ors., (supra).
The preliminary objection raised by learned counsel for the respondents to the validity of the reference is overrruled.
We now come to the merits of the reference.
The refer ence is limited to the interpretation of section 30(2) of the Land Acquisition (Amendment) Act of 1984.
Before the enact ment of the Amendment Act, solatium was provided under section 23(2) of the Land Acquisition Act (shortly, "the parent Act") at 15% on the market value of the Land computed in accordance with section 23(1) of the Act, the solatium being provided in consideration of the compulsory nature of the acquisition.
The Land Acquisition Amendment Bill, 1982 was introduced in the House of the People on 30 April, 1982 and upon enactment the Land Acquisition Amendment Act 1984 commenced operation with effect from 24 September, 1984.
section 15 of the Amendment Act amended section 23(2) of the parent Act and substituted the words '30 per centum ' in place of the words '15 per centum '.
Parliament intended that the be 338 nefit of the enhanced solatium should be made available albeit to a limited degree, even in respect of acquisition proceedings taken before that date.
It sought to effectuate that intention by enacting section 30(2) in the Amendment Act, section 30(2) of the Amendment Act provides: "(2) the provisions of sub section
(2) of section 23 . of the principal Act, as amended by clause (b) of section 15 . . of this Act . . shall apply and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act." In construing section 30(2), it is just as well to be clear that the award made by the Collector referred to here is the award made by the Collector under section 11 of the parent Act, and the award made by the Court is the award made by the Principal Civil Court of Original Jurisdiction under section 23 of the parent Act on a reference made to it by the Collector under section 19 of the parent Act.
There can be no doubt that the benefit of the enhanced solatium is intended by section 30(2) in respect of an award made by the Collector between 30 April 1982 and 24 September, 1984.
Likewise the benefit of the enhanced solatium is extended by section 30(2) to the case of an award made by the Court between 30 April 1982 and .24 September 1984, even though it be upon reference from an award made before 30 April, 1982.
The question is: what is the meaning of the words "or to any order passed by the High Court or Supreme Court on appeal against any such award?" Are they limited, as con tended by the appellants, to appeals against an award of the Collector or the Court made between 30 April 1982 and 24 September 1984, or do they include also, as contended by the respondents, appeals disposed of between 30 April, 1982 and 24 September 1984 even though arising out of awards of the Collector or the Court made before 30 April, 1982.
We are of opinion that the interpretation placed by the appellants should be preferred over that suggested by the respondents.
Parliament has identified the appeal before the High Court and the appeal before the Supreme Court by describing it as an appeal against 'any such award '.
The submission on behalf of the respondents is that the words 'any such award ' mean the award made by the Collector or Court, and carry no 339 greater limiting sense; and that in this context, upon the language of section 30(2), the order in appeal is an appellate order made between 30 April 1982 and 24 September 1984 in which case the related award of the Collector or of the Court may have been made before 30 April 1982.
To our mind, the words 'any such award ' cannot bear the broad meaning suggested by learned counsel for the respondents.
No such words of description by way of identifying the appellate order of the High Court or of the Supreme Court were neces sary.
Plainly, having regard to the existing hierarchical structure of for a contemplated in the parent Act those appellate orders could only be orders arising in appeal against the award of the Collector or of the Court.
The words 'any such award ' are intended to have deeper signifi cance, and in the context in which those words appear in section 30(2) it is clear that they are intended to refer to awards made by the Collector or Court between 30 April, 1982 and 24 September, 1984.
In other words section 30(2) of the Amendment Act extends the benefit of the enhanced solatium to cases where the award by the Collector or by the Court is made between 30 April, 1982 and 24 September, 1984 or to appeals against such awards decided by the High Court and the Su preme Court whether the decisions of the High Court or the Supreme Court are rendered before 24 September, 1984 or after that date.
All that is material is that the award by the Collector or by the Court should have been made between 30 April, 1982 and 24 September, 1984.
We find ourselves in agreement with the conclusion reached by this Court in K. Kamalajammanniavaru (dead) by Lrs.
vs Special Land Acquisi tion Officer, (supra), and find ourselves unable to agree with the view taken in Bhag Singh and Others vs Union Terri tory of Chandigarh, (supra).
The expanded meaning given to section 30(2) in the latter case does not, in our opinion, flow reasonably from the language of that sub section.
It seems to us that the learned judges in that case missed the sig nificance of the word 'such ' in the collocation 'any such award ' in section 30(2).
Due significance must be attached to that word, and to our mind it must necessarily intend that the appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or of the Court rendered between 30 April, 1982 and 24 Septem ber, 1984.
We find substance in the contention of the learned Attorney General that if Parliament had intended that the benefit of enhanced solatium should be extended to all pending proceedings it would have said so in clear language.
On the contrary, as he says, the terms in which section 30(2) is couched indicate a limited extension of the benefit.
The Amendment Act has not been made generally retrospective with 340 effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned.
Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provi sions of section 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium.
The learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date.
Delays in the superi or Courts extend now to limits which were never anticipated when the right to approach them for relief was granted by statute.
If it was intended that section 30(2) should refer to appeals pending before the High Court or the Supreme Court between 30 April, 1982 and 24 September, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years before.
It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory en hancement.
It must be remembered that the value of the land is taken under section 11(1) and section 23(1) with reference to the date of publication of the notification under s.4(1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium.
Both section 11(1) and section 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that date, and solatium by section 23(2), is computed as a per centage on such market value.
Our attention was drawn to the order made in State of Punjab vs Mohinder Singh, (supra), but in the absence of a statement of the reasons which persuaded the learned Judges to take the view they did we find it difficult to endorse that decision.
It received the approval of the learned Judges who decided Bhag Singh (supra), but the judgment in Bhag Singh, (supra) as we have said earlier, has omitted to give due significance to all the material provisions of section 30(2), and consequently we find ourselves at variance with it.
The learned Judges proceeded to apply the principle that an appeal is a continuation of the proceeding initiated before the Court by way of reference under section
18 but, in our opinion, the application of a general principle must yield to the limiting terms of the statutory provision itself.
Learned counsel for the respondents has strenuously relied on the general principle that the appeal is a re hearing of the original matter, but we are not satisfied that he is on good ground in invoking that principle.
Learned counsel 341 for the respondents points out that the word 'or ' has been used in section 30(2), as a disjunctive between the reference to the award made by the Collector or the Court and an order passed by the High Court or the Supreme Court in appeal and, he says, properly understood it must mean that the period 30 April, 1982 to 24 September, 1984 is as much applicable to the appellate order of the High Court or of the Supreme Court as it is to the award made by the Collector or the Court.
We think that what Parliament intends to say is that the benefit of section 30(2) will be available to an award by the Collector or the Court made between the aforesaid two dates or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the said two dates.
The word 'or ' is used with reference to the stage at which the proceeding rests at the time when the benefit under section
30(2) is sought to be extended.
If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of section 30(2) will be applied to such award made between the aforesaid two dates.
If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of section 30(2) will be applied.
But in every case, the award of the Collector or of the Court must have been made between 30 April, 1982 and 24 September, 1984.
In the result we overrule the statement of the law laid down in Mohinder Singh, (supra) and in Bhag Singh and Anoth er, (supra) and prefer instead the interpretation of section 30(2) of the Amendment Act rendered in K. Kamalajammanniava ru (dead) by Lrs.
(supra).
The cases will now be listed before a Division Bench of three learned Judges for hearing on the merits of the other points raised in the cases.
|
A common question of law having arisen in this group of cases for determination by this Court, they were heard together.
Lands of Respondents in Civil Appeal Nos.
2839 40 of 1989 were acquired under the Land Acquisition Act.
The Collector made the award for compensation on March 30, 1963 and on a reference, being made under Section 18 of the Act, the Additional District Judge enhanced the compensation by his order dated June 10, 1968.
The Respondents appealed to the High Court seeking further enhancement.
During the pendency of the appeal, Land Acquisition (Amendment) Bill 1982 was introduced on April 30, 1982 and became an Act on Sept. 24, 1984.
The High Court disposed of the appeal on Dec. 4, 1984 and apart from raising the quantum of compensa tion, also awarded a solatium at 30 per cent in terms of the Amendment Act 1984.
The State appealed to this Court.
The matter initially came up before a Division Bench on September 23, 1985.
The Bench had before it two decisions of this Court wherein divergent views were expressed.
The two decisions were: In K. Kamalajammanniavaru 's (dead) by Lrs.
vs Special Land 317 Acquisition Officer,, This Court (composed of.two Judges) took the view that award of 30 per cent solatium under the amended Section 23(2) by the High Court or the Supreme Court were applicable only where the award appealed against was made by the Col lector or the Court between April 30, 1982 and Sept. 24, 1984.
In the second decision, Bhag Singh & Ors. vs Union Territory of Chandigarh, ; , this Court (comprised of three Judges) took a contrary view and ruled that even if an award was made by the Collector or the Court on or before April 1982 and an appeal against such award was pending before the High Court or this Court on 30.4.1982 or was filed subsequent to that date, the provisions of amended Section 23(2) and 28 of the Land Acquisition Act would be applicable as the appeal was a continuation of the reference made under Section 18 and as such the appellate Court must apply the amended provision on the date of the decision of the appeal.
In this way the decision in Kamalajammanniava ru 's case was overruled by this Court in Bhag Singh 's case and the Court approved another decision of Division Bench comprised of three Judges in Mohinder Singh 's case which merely directed payment of enhanced solatium and interest without giving any reasons.
In view of the conflicting decisions on the point of two Judges Bench before, whom these cases come up for considera tion, referred to this Larger Bench the question: whether under the Amended Section 23(2), the claimants were entitled to solatium at 30 per cent of the market value irrespective of the dates on which the land acquisition proceedings were initiated or on the dates on which the award had been passed.
Overruling the preliminary objection as to the maintain ability of the reference of matters to a larger Bench, this Court disposing of the reference and directing that the appeals be now listed for hearing on merits, HELD: Solatium is awarded under sub section (2) of Section 23 of the Land Acquisition Act.
Before the Amendment Act was enacted, the Sub section provided for solatium at 15 per cent of the market value.
By the change introduced by the Amendment Act the amount has been raised to 30 per cent of the market value.
Sub section (2) of Section 30 of the Amendment Act specifies the category of cases to which the amended rate of solatium is attracted.
[322D] 318 What Parliament intends to say is that the benefit of Section 30(2) will be available to an award by the Collector or the Court made between 30th April 1982 and 24th September 1984 or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the two said dates.
The word 'or ', is used with reference to the stage at which the proceeding rests at the time when the benefit under Section 30(2) is sought to be extended.
If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of Section 30(2) will be applied to such award made between the aforesaid two dates.
If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of Section 30(2) will be applied.
But in every case the award of the Collector or of the Court must have been made between April 30, 1982 and September 24, 1984.
[339D G] A pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be bind ing, it is not necessary that it should be a decision ren dered by the full Court or a Constitution Bench of the Court.
For the purpose of imparting certainty and endowing due authority, decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons that is not conveniently possible.
[337C D] The Land Acquisition Bill 1982, was introduced in the House of the People on 30th April, 1982 and upon enactment the Land Acquisition Act, 1984, commenced operation with effect from 24th Sept. 1984.
Section 15 of the Amendment Act amended Section 23(2) of the parent Act and substituted the words "30 per cent" in place of the words "15 per cent".
Parliament intended that the benefit of the enhanced solati um should be made available albeit to a limited degree even in respect of acquisition proceedings taken before the date.
It sought to effectuate that intention by enacting Section 30(2) in the Amendment Act.
[337G H; 338A] There can be no doubt that the benefit of the enhanced solatium is intended by Section 30(2) in respect of an award made by the Collector between 30th April 1982 and 24th September 1984.
Likewise the benefit of the enhanced solati um is extended by Section 30(2) to the case of an award made by the Court between April 30, 1982 and September 24, 1984, even though it be upon reference from an award made before April 30, 1982.
[338E] 319 One of the functions of the Superior Judiciary in India is to examine the competence and validity of legislation both in point of legislative competence as well as its consistency with the Fundamental Rights.
In this regard the Courts in India possess a power not known to the English Courts.
[323G H] Exp.
Canon Selwyn, and Cheney vs Conn, , referred to.
The range of judicial review recognised in the Superior Judiciary of India is perhaps the widest and the most exten sive known to the world of law.
The power extends to examin ing the validity of even an amendment to the Constitution for now it has been repeatedly held that no Constitutional amendment can be sustained which violates the basic struc ture of the Constitution.
[324B] His Holiness Kesavananda Bharti Sripadagalavaru vs State of Kerala, ; Smt.
Indira Nehru Gandhi vs Shri Raj Narain, ; Minerva Mills Ltd. and others vs Union of India and others, [1980] 2 SCC 591; S.P. Sampath Kumar etc.
vs Union of India and Ors.
, ; The Court overruled the statement of the law laid down in the cases of State of Punjab vs Mohinder Singh & Anr.
and Bhag Singh and Others vs Union Territory of Chandigarh and preferred the interpretation of Section 30(2) of the Amend ment Act rendered in K. Kamalajammanniavaru (dead) by Lrs.
vs Special Land Acquisition Officer.
Oliver Wendell Holmes, "The Common Law", p. 5; Oliver Wendell Homes, "Common Carriers and the Common Law", [1943] 9 Curr.
L.T. 387, 388; Julius Stone, "Legal Systems & Law yers Reasoning", p. 58 59; Roscoe Pound, "An Introduction to the Philosophy of Law", p. 19; "The Judge as Law Maker", pp.
Myers vs Director of Public Prosecutions, L.R. 1965 A.C. 1001 & 1021; The Bengal Immunity Company Limited vs The State of Bihar and Others, ; Street Tramways vs London County Council, ; ; Radcliffe vs Ribble Motor Services Ltd., ; 245; Dr. Alan Paterson 's "Law Lords", [1982] pp.
156 157; Jones vs Secretary of State for Social Services, [1972] A.C. at 966; Ross Smith vs Ross Smith, , 303; Indyka vs Indyka, [1969] I A.C. 33, 69; Construction by Jones, at 966; Steadman vs Steadman, , 542; DPP vs Myers, [1965] A.C. 1001, 320 1022; Cassell vs Broome,/1972] A.C. 1027, 1086; Haughton vs Smith, [1975] A.C. 476,500; Knullerv.
DPP, [1973] A.C. 435,455; Conway vs Rimmer, ; , 938; Tramways case; , ; State of Washington vs Dawson & Co., , ; David Burnel vs Coronado Oil & Gas Company, ; , ; Compare National Bank vs Whitney, ; , 26 L.Ed.
443 444; Compensation to Civil Servants, , A.I.R. , 87; Attorney General of Ontario vs The Canada Temperance Federation, L.R. 78 I.A. 10; Phanindra Chandra Neogy vs The King, ; ; State of Bombay vs The United Motors (India) Ltd.; , ; Maganlal Chhagganlal (P) Ltd. vs Municipal Corporation of Greater Bombay & Ors., ; ; Lt.
Col. Khajoor Singh vs The Union of India & Anr., ; ; Keshav Mills Compa ny vs Commissioner of Income Tax; , , 921; Sajjan Singh vs State of Rajasthan, ; , 947948; Girdhari Lal Gupta vs
D.H. Mill; , ; Pillani Investment Corporation Ltd. vs
I.T.O. 'A ' Ward, Calcutta & Ant., ; ; Ganga Sugar Company vs State of Uttar Pradesh; , , 782; Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; T.V. Vatheeswaran vs The State of Tamii Nadu, ; Sher Singh & Ors.
vs State of Punjab, ; ; Triveniben vs State of Gujarat, AIR 1989 SC 142; John Martin vs The State of West Bengal, ; ; Haradhan Saha vs State of West Bengal, ; ; Bhut Nath Mate vs State of West Bengal; , ; Mattulal vs Radhe Lal, ; ; Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc.
vs The State of Gujarat & Ors., ; ; Union of India & Ors.
vs Godfrey Philips India Ltd., ; ; Jit Ram vs State of Haryana, ; ; Motilal.
Padampat Sugar Mills vs State of U. P.; ,
|
Civil Appeals Nos. 1782 and 1783 of 1966.
Appeals from the judgment and decree dated October 6, 1964, of the Kerala High Court in Appeal Suit No. 569 of 1963.
O.P. Malhotra and J.B. Dadachanji, for the appellant (in C.A. No. 1782 of 1966) and the respondents (in C.A. No. 1783 of 1966).
M.C. Chagla and A.G. Pudissery,.
for the respondents (in C.A. No. 1782 of 1966) and the appellants (in C.A. No. 1783 of 1966).
The Judgment of the Court was delivered by Hegde, J.
These connected appeals by certificate arise from the decision of the.
High Court of Kerala in Appeal Suit No. 569 of 1963 on its file.
Civil Appeal No. 1782 of 1966 is filed by the plaintiff in the suit and Civil Appeal No. 1783 of 1966 is filed by the second defendant (who shall hereinafter be referred to as the defendant), who is contesting this appeal.
The suit was for specific performance on the basis of an oral agreement alleged to have been entered into on 9.9.1121 (Malayalain Era.) between the plaintiff and the 1st defendant who died very soon after the filing of the suit.
The suit was contested by the second defendant, his widow.
The trial court decreed the suit as prayed for but in appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sate deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field at its east for a sum of Rs. 11500/ .
923 Originally the plaintiff was the owner of the suit properties.
He sold the same to the 1st defendant on 9.9.1121 (Malayalam Era) under Exh.
According to the plaintiff at the time of the execution of P 1, there was an oral agreement between him and the 1st defendant whereunder the 1st defendant agreed to reconvey the properties sold for the very price it was sold whenever the plaintiff calls up.on him to reconvey them.
The suit from which these appeals arise has been rounded on the basis of the said agreement.
The 1st defendant died even before he could file his written statement in the case.
Before his death he had gifted the suit properties by means of a registered deed in favour of the defendant.
She denied the agreement pleaded in the plaint but on the other hand she stated that just before his death her husband had agreed to sell to plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11500 but due to the illness of her husband the sale in question could not be effected.
She proceeded further and averred as follows in paragraph 10 of her written statement.
"This defendant has been asked by the 1 st defendant before his death that even after his death the properties in item No. 1 (in the plaint schedule which are the subject matter of the contract) as mentioned in paragraph 7, except the nilam on the eastern part thereof, should be assigned to the plaintiff for a consideration of Rs. 11500 and accordingly this defendant is willing to give such property as mentioned above to the plaintiff." After the defendant filed her written statement, the plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the defendant nor did he inform the court that he was ready and willing to accept the agreement pleaded by the defendant or that he was willing to perform his part of that agreement.
The suit proceeded on the basis of the agreement pleaded in the plaint.
The 1st question that arises for decision is whether the agreement pleaded in the plaint is true.
The burden of proving that agreement is naturally on the plaintiff.
The agreement in question as mentioned earlier is said to be an oral agreement.
Therefore the plaintiff 's task is all the more difficult.
The sale deed Exh.
P. 1 proceeds on the basis that it evidences an outright sale.
It does not either specifically or by implication lend support to the case put forward by the plaintiff.
On the other hand it records the following condition stipulated by the vendor: "Subject to the stipulation that during my life time the schedule properties shall not be mortgaged or assigned to anyone else without my knowledge and consent, I completely convey 'and surrender to you all my 924 remaining rights and possession, and the properties are given to your possession on receipt of the sale consideration of Rs. 24,500.
" From this clause it is clear that the plaintiff conveyed all his rights, title and interest in the suit properties to the vendee subject to the aforementioned stipulation.
It is not necessary to consider whether the restriction in question is a valid one.
Even if we assume that the same is valid, it does not support the plaintiff 's case.
On the other hand, by implication it negatives his case.
At best the clause referred to above merely confers on the vendor a right to preempt.
Hence by implication it negatives the plaintiff 's case that there was an agreement to reconvey the suit properties.
The plaintiff has not given any satisfactory explanation why the contract relating to reconveyance was not incorporated in the sale deed.
To explain this important omission he has examined P.W.2, who.
claims to be a document writer of considerable experience.
He claims that the document in question was written by one of his assistants.
His evidence is to the effect that the vendor and the vendee wanted to incorporate the agreement as regards re conveyance in Exh.
P.1 itself but he advised them that it could not be done.
This is a strange legal advice.
This evidence is on the.
face of it unbelievable.
There is also no satisfactory explanation why the alleged agreement was not reduced into.
writing.
In support of the alleged agreement reliance was tried to be placed on Exh.
P 2, which is said to be a document signed by the first defendant after the present suit was filed and before his death.
The High Court was unable to accept the genuineness of this document.
It opined that this document must have been got up by the plaintiff with the assistance of P.W. 7, his brother.
From the High Court 's judgment we find that though the document contains hardly few lines, for completing the same as many as three different types o.f ink had been used.
The original document has not been called for and therefore we have to proceed on the basis that the.
observations made by the High Court are correct.
The very recitals in the document show that it is a suspicious document.
For all these reasons we are unable.
to place any reliance on this document.
It may be again emphasized at this stage that this document has come into existence after the institution of the present suit.
The principal witnesses who are examined in support of the oral agreement pleaded in the case are P.Ws.1, 2 and 7.
We have already referred to the evidence of P.W. 2.
He does not appear to us to be a reliable witness.
P.W. 1 is no other than the plaintiff himself.
P.W. 7 is his brother.
P.W. 1 has no children and P.W. 7 is his nearest heir.
Therefore it is quite 925 clear that both P.Ws. 1 and 7 are interested witnesses.
Their evidence cannot carry much weight.
The story put forward by the plaintiff in the plaint is an im probable one.
ItI is true that the plaintiff and the 1st defendant are first cousins.
It is also true that their relationship was very cordial.
But if the 1st defendant could not trust the plaintiff to advance a sum of Rs. 24,000 without security as could be gathered from the plaintiff 's evidence, we fail to see why the 1st defendant should have relied on the oral assurances given by the plaintiff in the matter of reconveying the property.
From the averments made by the defendant in her written statement it does appear that when the 1st defendant was in his death bed being stricken by cancer, there was some talk about reconveying a portion of the suit properties to the plaintiff.
It may also be as held by the trial court that the suit property was worth more than Rs. 24,000 at the time of its sale.
It appears likely that neither side has come forward with the true version.
But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence.
Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence.
That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one.
We do not think that the trial court was justified in relying on that testimony for granting the decree prayed for.
The trial court itself observed in the course of its judgment (para 12) that "there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant".
This finding alone should have been sufficient to non suit the plaintiff.
Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint.
This takes us to the decree passed by the High Court in respect of plaint item No. 1.
This decree is purported to have been passed on the basis of the admission made by the defendant.
It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff.
They do not refer to the same transaction.
plaintiff did not at any stage accept the agreement pleaded by the defendant as true.
The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh.
P 1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit.
The two are totally different agreements.
The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant.
A 926 suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code.
In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so.
He must further plead that he has been and is still ready and willing to specifically perform his.
part of the agreement.
Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thos pleas.
As observed by this Court in Pt.
Prem Raj vs The D.L.F. Housing and Construction (Private) Ltd. and anr.(1) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.
The High Court purported to rely on the decision of this Court in Srinivas Ram Kumar vs Mahabir Prasad and ors.
(2) in support of the decree passed by it.
We do not think that the ratio of that decision is applicable to the facts of this case.
Therein the plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs. 30,000 towards the price and had been put into possession in part performance of the contract but the defendant pleaded that the amount of Rs. 30,000 was received as a loan and the plaintiff was put into possession only to facilitate the payment of interest.
This Court accepted the plea of the defendant and negatived the claim of the plaintiff and refused to decree the specific performance prayed for by the plaintiff but at the same time this Court thought that on the peculiar facts of that case, it was appropriate to grant a decree in favour of the plaintiff for Rs. 30,000 which admittedly remained unpaid.
As seen earlier before a decree for specific performance can be given the plaintiff has to plead and satisfy the court about his willingness to perform his part of the contract.
Hence in our opinion the decision in Srinivas Ram Kumar 's case (2) does not bear on the facts of the present case.
For the reasons mentioned above we dismiss Civil Appeal No. 1782 of 1966 and allow Civil Appeal No. 1783 of 1966.
In the result the suit from which these appeals arise stands dismissed.
Now coming to the question of costs, on the facts and circumstances of this case we think it is appropriate to direct the parties to bear their own costs throughout.
Our reasons for doing so are these: It is proved that the suit properties were sold to the 1st defendant at a very low price.
There must have been some good (1) ; (2) ; 927 reason for doing so but the parties have not chosen to place the true version before the Court.
It is also proved that the 1st defendant before his death was willing to resell a portion of the suit properties.
He had directed his wife to resell the major portion of item No. 1 of the plaint schedule to the plaintiff for a consideration of Rs. 11,500 though its price at that time is proved to be much more than Rs. 11,500.
As seen earlier, the defendant was willing to sell item No. 1 in the plaint schedule to the plaintiff for Rs. 11,500.
She expressed her readiness to do so in her written statement.
She is evidently not willing to stand by that offer now because of the enormous rise of price of properties in recent times.
Mr. M.C. Chagla, learned Counsel for the defendant told us at the time of the hearing that the property concerned in the defendant 's appeal is now worth over a lac of ' rupees.
That appears to be the reason why the defendant is backing out of the offer made by her in her written statement.
All that one need say is that all is not well with defendant 's ease either.
Civil Appeal 1782/66 dismissed.
Civil Appeal 1783/66 allowed.
|
The plaintiff as original owner of the suit properties sold the same to the 1st defendant who.
was husband of the 2nd defendant.
According to the plaintiff apart 'from the written sale deed there was an oral agreement between him and the 1st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called upon him to do so.
The suit was filed for specific performance of the said oral agreement.
The 1st defendant died even before he filed his written statement.
Before his death he had gifted the suit properties to his wife, the 2nd defendant.
In her 'written statement the 2nd defendant denied the agreement pleaded in the point but stated that just before his death her husband had agreed to sell t6 plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500 but due to his illness the sale could not be effected.
She reiterated the said offer in her written statement but the plaintiff did not accept it and the suit proceeded on the basis of the agreement pleaded in the plaint.
The trial court decreed the suit as prayed for.
In appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field for a sum of Rs. 11,500.
Both the parties appealed to this HELD.
: (i) The burden of proving the oral agreement was on the plaintiff.
The sale deed on the face of it evidenced an outright sale.
The stipulation ha it that the purchaser would not mortgage or assign the properties to anyone else during the vendor 's lifetime went against the plaintiff 's case inasmuch as it only gave the vendor a right to preempt. ] 'here was no satisfactory explanation why such an important thing as the agreement to re convey was made orally and not reduced to writing.
[923 G,924B] It appeared likely in the present case that neither side had come forward with the true version.
But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be: established by convincing evidence.
Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence.
[925 D E] On the evidence adduced by him the plaintiff had failed to prove the agreement pleaded in the plaint.
[925 F] (ii) The High Court was wrong in passing the decree in respect of plaint item No. 1 on the basis of the admission of the 2nd defendant in her written statement.
The plaintiff did not at any stage accept the 922 agreement pleaded by the defendant as true.
The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendant in her written statement were two totally different agreements.
The plaintiff did not plead at any stage that he was ready and willing to.
perform the agreement pleaded in the written statement of defendant.
A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code.
Before a decree for specific performance can be given the plaintiff has to.
plead and satisfy the court about his willingness to perform his part of the contract.
[925 G926 B] Pt.
Prem Raj vs The D.L.F. Housing and Construction (P) Ltd. & Anr., ; , applied.
Srinivas Ram Kumar vs Mahabir Prasad & Ors., ; , distinguished.
(iii) Since the parties had not laid the true version before the court and the defendant had refiled from the offer made by her in her written statement it was a case in which it was appropriate to direct the parties to bear their own costs throughout.
[926 H]
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Criminal Appeal No. 227 of 1983.
From the Judgment and Order dated 19.8.1982 of the Allahabad High Court in Crl.
Appeal No. 680 of 1976.
R.L. Kohli and Shakil Ahmed Syed for the Appellants.
Prithvi Raj and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the judgment of the High Court of judicature at Allahabad in Criminal Appeal No. 680 of 1976 dismissing the appeal of the four instant appellants namely, Lalji, Mansa, Milkhi and Bhagwati and upholding their conviction and sentence of life imprisonment under Sections 302/149 and also the conviction of Milkhi with sentence of two years R.I. under section 148 I.P.C and of the other three appellants under Section 147 I.P.C. with sentence of one year R.I. 133 The facts are simple.
On 24.6.1975 at noon Manju, son of Girdhaft Lal, man handled Chhotey Lal and Mansa, nephews of Minister Lal, after they gave him (Manju) a push.
The prose cution version was that Minister Lal with a cane in hand, Chhotey Lal with a Kanta, Milkhi and Chainu with spears and others with lathis arrived near Girdhaft Lal 's house and after an altercation started assaulting Girdhaft and Siddhu.
The alarm attracted Ram Avtar and Manju who came there.
The appellants party started assaulting them also whereupon they retreated to their house but were followed by Minister Lal, Lalji and others of the party.
Girdhaft Lal and Siddhu died in consequence of the assault.
Ram Avtar picked up the loaded gun of his father Girdhaft and fired a shot at Minis ter Lal who fell down dead and by another shot he injured Lalji.
The defence version was that Girdhaft Lal summoned Minister Lal to his house and the accused persons came with or after Minister Lal.
This resulted in a cross case on Lalji 's F.I.R. (exhibit Ka 19).
It has admittedly resulted in acquittal.
The present case was registered under F.I.R. (exhibit Ka l) upon the information lodged by Babu Ram son of Siddhu at P.S. Maigalganj.
Altogether eleven persons, including the appellants herein faced trial.
The learned trial court relying on the evidence of the three eye witnesses convicted eight and acquitted three of them, namely, Ram Lotan, Kripa Dayal and Barkau.
The eight convicted persons were appel lants before the High Court in Criminal Appeal No. 680 of 1976.
Out of them conviction of four appellants was upheld, while the other four, namely, Shiv Kumar, Chottey Lal, Munna and Chainu were acquitted by the High Court.
The learned counsel for the appellants Mr. R.L. Kohli, Sr.
Advocate submits that as out of the eleven persons three were acquitted by the trial court and four were acquitted by the High Court as there was no corroboration in their cases, the position of two of the appellants, namely, Milkhi and Bhagwati remains the same and they must also be similarly acquitted for want of corroboration.
The learned counsel for the State Mr. Prithvi Raj, Sr.
Advocate counters submitting that when the appellants have been convicted under section 302/149 I.P.C the question of corroboration in case of individual appellants would not arise; and there is enough corrobora 134 tion in the evidence including medical evidence on record to prove that they were members of the unlawful assembly when the offence was committed.
The precise question to be decided in this appeal, therefore, is whether in view of death caused to Girdhaft and Siddhu by the unlawful assembly which is punishable under section 302 with the aid of Section 149 I.P.C. the corroboration as to participation of each individual member of the assembly would be necessary, and if so, whether in the instant case there is such corroboration.
Section 149 I.P.C. provides that if an offence is com mitted by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the mem bers of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence.
As has been defined in Section 141 I.P.C., an assembly of five or more persons is designat ed an 'Unlawful Assembly ', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First ', 'Second ', 'Third ', 'Fourth ', and 'Fifth ' of that section.
An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Whoever being aware of facts which render any assembly an unlawful assem bly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
Thus, when ever so many as five or more persons meet together to sup port each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence.
Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firm ness and courage.
The two essentials of the section are the commission of an offence by any member of an unlawful assem bly and that such offence must have been committed in prose cution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
Not every person is necessarily guilty but only those who share in the common object.
The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, 135 arms used by them and the behaviour of the assembly at or before scene of occurrence.
It is an inference to be deduced from the facts and circumstances of each case.
Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence.
Thus this section created a specific and distinct offence.
In other words, it created a constructive or vicar ious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly.
However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object.
Once the case of a person fails within the ingredients of the section the question that he did nothing with his own hands would be immaterial.
He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the mem bers of the assembly knew to be likely to be committed in prosecution of that object.
Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined.
It is not necessary that all the persons forming an unlawful assembly must do some overt act.
When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specif ic overt act was done by which of the accused.
This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly.
While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149.
It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
Thus, once the Court hold that certain accused persons formed in unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence.
After such a finding it would not be open to 136 the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts.
The prosecution would have no obligation to prove it.
In the instant case after having held that the appel lants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence (as de scribed in the charge) it was not open to the High Court to acquit some of the members on the ground that they them selves did not perform any violent act, or that there was no corroboration of their participation.
In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of section 149 I.P.C., the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the Court, did not so participate.
Doing so would amount to forgetting the very nature and essence of the offence created by section 149 I.P.C The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.
On the basis of the evidence on record Milkhi and Bhag wati 's membership of the unlawful assembly at the relevant time has been satisfactorily established.
Both the courts below having held them to have been members of the unlawful assembly, the mere fact that they were not active partici pants, would be of no avail.
It is not open to the court to scrutinise as to whether any member of the unlawful assembly actively participated.
In an appeal by persons convicted under Section 302 with the aid of 149 I.P.C., the question whether a particular person was a member of that unlawful assembly at the rele vant time may of course be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of section 149.
The question to be examined by us in the in stant case is whether Milkhi and Bhagwati were members of the unlawful assembly at the relevant time and not whether there was enough corroboration for their individual partici pation in the commission of the offence.
It has not been denied that the names of Milkhi and Bhagwati were mentioned in the F.I.R. (exhibit Ka l).
P.W. 2 Manju son of Girdhari, whose presence at the place of occur rence has not been challenged, mentioned Milkhi and Bhagwati among the accused persons with their relationship.
He cate gorically stated that the two, amongst others, 137 were present at his house beating his father and uncle and chasing him and Ram Avtar.
Milkhi according to him had a spear in his hand.
Manju denied the suggestion that Milkhi and Bhagwati were standing there on the side of the witness es.
P.W. 3 Smt.
Ram Devi clearly corroborated Milkhi 's participation.
P.W. 1 Babu Ram while giving vivid descrip tion of the occurrence stated that Milkhi was there in the assembly with spear and Bhagwati with a lathi and that all the persons present beat Girdhaft and Siddhu.
Milkhi also assisted in carrying Minister Lal after he was shot.
In reply to the question who beat Manju he clearly stated that Mansa and Bhagwati beat him with lathi when he was entering the house.
D.W. 2 Lalji stated that at the time of the occurrence Puran, Bhagwati, Kripal etc. had also come.
In the F.I.R. (exhibit Ka 19/C.I) lodged by Lalji on the same occurrence presence of Milkhi and Bhagwati was admitted by him.
The submission that they were mere spectators could not be believed.
From the above evidence on record it could not be held that Milkhi and Bhagwati were not members of the unlawful assembly at the the relevant time.
Whether any specific injury could individually be attributed to them or not could not at all be material.
The submission that the two be acquitted on ground of lack of corroboration has, therefore, to be rejected.
In the facts and circumstances of the case it is not open to this Court to apply the reasoning of the High Court to acquit members of the unlawful assembly for lack of corroboration as to their participation.
No other submission was made for the other appellants.
In the result, we do not find any merit in this appeal and hence it is dismissed.
Appellant Mansa is on bail.
He shall surrender to serve out his sentence.
T.N.A. Appeal dismissed.
|
The four appellants along with seven other accused were tried under Sections 147, 148 and 302 read with 149 of the Indian Penal Code.
The trial Court convicted the eight accused, including the four appellants, under section 302/149 I.P.C. and awarded life imprisonment.
Appellants Nos. 1, 2 & 4 were also convicted under Section 147 I.P.C. and each awarded one years R.I.
Appellant No. 3 was also convicted under Section 148 I.P.C. and awarded two years R.I.
The remaining three accused were acquitted by the Trial Court for want of corroboration.
On appeal by the eight convicted persons the High Court upheld the conviction of only four appellants on all the counts and allowed the appeal of the other four co accused for want of corrobora tion.
In this appeal by special leave it was contended that appellants No. 3 and 4 should also be acquitted for want of corroboration as the Trial Court has acquitted three accused and the High Court, on appeal, has further acquitted four accused for want of corroboration.
The appeal was contested on behalf of the State contend ing that in case of conviction under section 302 read with section 149 of the I.P.C. corroboration in case of individu al accused was not necessary and there 131 was enough corroboration on record to prove that the accused were members of the unlawful assembly at the time of commis sion of offence.
Dismissing the appeal, HELD: 1.
Section 149 creates a specific and distinct offence.
It imposes constructive or vicarious criminal liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of the assembly.
[135B] 1.1.
It is not necessary that all persons forming an unlawful assembly must do some overt acts.
The section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly.
While overt acts and active partic ipation may indicate common intention of the persons perpe trating the crime, the mere presence in the unlawful assem bly may fasten vicarious criminal liability under the sec tion.
The basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with requisite common object or knowledge.
[135E F] 1.2.
The two essentials of the section are the commis sion of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
The common object of the assembly must be one of the five objects mentioned in section 141 of the Indian Penal Code.
[134G H] 2.
In an appeal by the persons convicted under section 302 with the aid of section 149 I.P.C. the question whether a particular person was a member of the unlawful assembly at the relevant time may be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of section 149.
[136F G] 2.1.
But once the Court holds that certain accused persons formed an unlawful assembly and an offence is com mitted by any member of that assembly in prosecution of the common object of that assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was a member of the same assembly is to be held guilty of that offence.
After such a finding it is not open to the 132 Court to see as to who actually did the offensive act.
The prosecution is not obliged to prove which specific overt act was done by which of the accused.
[135G H; 136A] 2.2.
From the evidence on record it has been satisfacto rily established that appellants No. 3 and 4 were members of the unlawful assembly at the relevant time.
Both the Courts below have held them to have been members of the unlawful assembly.
The fact that they were not active participants and whether any specific injury could individually be at tributed to them or not are not at all material.
[136D E] 2.3.
In the instant case the High Court having held that the appellants formed an unlawful assembly carrying danger ous weapons with the common object of resorting to violence and committed an offence punishable with the aid of Section 149 I.P.C. erred in acquitting some of the members on the ground that they themselves did not perform any violent act or that there was no corroboration of their participation.
Doing so would amount to forgetting the very nature and essence of the offence created by Section 149.
[136B D] 2.4 The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.
[136D]
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N: Criminal Appeal No. 692 of 1983.
From the Judgment and order dated 29th November, 1983 of the Punjab & Haryana High Court at Chandigarh in Criminal Writ Petition No. 516 of 1983.
K. Parasaran, Attorney Genl.
of India, Bhagwant Singh, Advocate General (Punjab), Gurmukh Singh, Addl Adv.
of Punjab, D.S. Brar, Asstt Adv.
General, G.S. Mann.
Deputy Adv.
General, R.D. Aggarwal, Govt.
Advocate, Miss A. Subhashini and S.K. Bagga for the Appellants.
Hardev Singh, G.S. Grewal, N.S Das Behl, R.S. Sodhi and J.S. Sandhawalia, for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is an appeal by special leave against the judgment dated November, 29 1983 of a learned Single Judge of the High Court of Punjab and Haryana in Criminal Writ Petition No. 516 of 1983.
That Writ Petition was filed by the respondent.
Shri Jagdev Singh Talwandi, to challenge an order of detention passed by the District Magistrate, Ludhiana, on October 3, 53 1983 whereby the respondent was detained under section 3 (3) read with section 3 (2) of the .
The respondent was arrested in pursuance of the order of detention on the night between October 3 and 4, 1983.
He was first lodged in the Central Jail, Patiala and from there he was taken to Ambala, Baroda and Fathegarh (U.P.).
He filed a Writ Petition (No.463 of 1983) in the High Court to challenge his transfer and detention in a place far away from Ambala.
He withdrew that petition on an assurance by the Government that he will be sent back to Ambala, which the Government did on October 28.
The grounds of detention were served on the respondent on October 6, 1983.
Those grounds show that the petitioner was detained on the basis of two speeches allegedly made by him: one on July 8, 1983 at Nihang Chhowani, Baba Bakala, District Amritsar and the other on September 20, 1983 at Gurdwara Manji Sahib, Amertsar.
The grounds furnished to the petitioner read thus: "(1) That you in a Shaheedi Conference which was held from 11 a.m. to 4.45 p.m. on 8 7 1983 at a place known as 'Nihang Chhowani ' at Baba Bakala, District Amritsar, delivered a provocative speech to a Sikh gathering comprising about 2000/2200 Persons wherein you made a pointed reference to the incident dated 2 7 1983 of encounters between Nihangs and police at Baba Bakala and Taran Taran and stressed that in order to take revenge Sikhs would kill their (Police) four persons in lieu of the two Nihangs who had been killed in the said encounters.
(2) That while addressing a conference convened by the AISSF (All India Sikh Students Federation) on 20 9 1983 at Gurdwara Manji Sahib at Amritsar and attended by about 7000/8000 Sikh students, you made a provocative speech wherein you said that all efforts made for the success of the Akali Morcha having failed, it was still time to establish in Punjab a Government parallel to the Central Government and that you are in a position to form such a Government.
You further exhorted that the establishment of Khalsa Raaj was the only solution to the problems.
You also made a suggestion that the Government 54 will not accept any demand unless it was compelled by force to do so.
This statement was also published in the various newspapers.
A case F.I.R. No. 295 dated 27 9 1983 under section 124 A Indian Penal Code, and section 13 of the , was registered at Police Station 'E ' Division, Amritsar, which is under investigation.
" The detaining authority stated in the last paragraph of the detention order that the respondent was being supplied the grounds of detention in Punjabi (Gurmukhi script) together with an English translation thereof and the "supporting material forming the base of the grounds of detention".
The "supporting material", by which is meant particulars of the grounds of detention, was supplied to the respondent along with the grounds.
These particulars consist of what is alleged to be a report of the speeches made by the respondent, as recorded by the C.I.D. branch of the Punjab Police.
The particulars, of which an English translation was produced in the High Court at exhibit A1, read thus: "While speaking he said that on July 2 by bringing B.S.F., Punjab Police and other police the unarmed Nihangs were fired at.
There is no count as to how many of them were killed, because no rollcall is taken of the Sikhs; how many came and how many went.
Further said that in Punjab hundreds of innocent Sikhs have been made the target of bullets.
The Government has seen that the Sikhs go away after paying homage to the martyrs.
Now we will have to decide as to what steps should be taken.
The beloved army of Guru (Nihangs) have protected our dress and scriptures.
It is true that some of them do commit mistakes also.
They should be punished.
We should see that we should kill as many police man as they kill ours, otherwise they will slowly finish us.
The new Inspector General of Police Mr. Bhinder, has stated that there are no extremist in Darbar Sahib.
Further said that Congress wants to finish self respect among you.
The Morcha, which is launched by Akali Dal, is to save the Sikh appearance.
The awards have been given to police, have they won any war? Such a big attack upon the Nihangs was 55 on a pre planned programme.
I say if they have killed our two men, then you should kill four.
If they come to kill me like this, then I will die after killing them.
I will never go back.
Further said that if we get a judicial enquiry made, it becomes meaningless.
Nothing comes out of them.
Now the judicial power has been given to Executive Officers.
They may kill any body and they complete the enquiry and fill the file.
" One of the grounds on which the order of detention was challenged in the High Court was that the State Government had failed to discharge its obligation under Article 22 (5) of the Constitution by denying to the respondent an effective opportunity to make a representation to the Advisory Board against the order of detention.
On being asked by the learned Judge "to be more specific", counsel for the respondent stated in the High Court that the State Government had not supplied to the respondent the supporting material on which Ground No. 1 of the grounds of detention was based.
Shri Hardev Singh, who appears on behalf of the respondent, adopted that contention by clarifying that the case of the respondent is that the relevant facts stated in the 1st ground of detention are totally absent from the supporting material supplied to him and, therefore, no reasonable person could have possibly passed the detention order on the basis of that material.
The learned counsel urged that the order of detention was bad either because the detaining authority did not apply its mind to the material before it or, in the alternative, because there was some other material on the basis of which the detention order was passed and that material was not supplied to the respondent.
For the purpose of focussing attention on the true nature of the respondent 's contention and the prejudice said to have been caused to him, the learned Judge of the High Court resorted to an ingenious device.
He coined a conversation between the detaining authority and the detenu on the subject of their rival contentions in this case.
That imaginary conversation may be reproduced, at least for the merit of its novelty: "(The detaining authority and the detenu come face to face.) Detaining authority: (After reading out Ground No. 1 to the detenu) : You had made that objectionable speech.
56 Detenu: Sir, you seem to have been wrongly informed.
I did not deliver any speech, provocative or otherwise, in a Shaheedi Conference at any such time, date or place known as 'Nihang Chhowni ' at Baba Bakal, District Amritsar, before a Sikh gathering of 2000/2200, as read out by you from ground No. 1.
Detaining authority: (Being cock sure of its facts, takes out the C.I.D. report and puts it in the hands of the detenu.): Go through this C.I.D. report carefully, as ground No. 1 is based on that report.
Detenu: Sir, this report does not refer to any speech being made by me in a Shaheedi Conference at a given time, on a given date, at a given place, at Baba Bakala and before a Sikh gathering numbering 2000/2200.
Detaining authority: (Taking back the report from the detenu 's hand and subjecting it to a close scrutiny, says somewhat wryly): Yes, you are right.
The vital data which finds a mention in ground No. 1 is missing from the supporting materail.
(Regaining quickly his repose, the detaining authority continues): Never mind if the given vital facts are missing from the supporting material.
The supporting material at least reveals that you did utter the objectionable words somewhere, sometime, on some date and before some persons.
Detenu: Sir, but that was not the speech on which you were going to act.
You were going to take action against me on the basis of the speech mentioned in Ground No. 1.
Detaining authority: Very well.
(So saying, the detaining authority orders the detention of the detenu on two grounds by adding one more ground on the basis of another speech.
The detaining authority serves the order of detention upon the detenu, containing two grounds of detention.
Simultaneously, the detaining authority supplies the supporting material to the detenu.") 57 We must mention in order to put the record straight and in fairness to the learned Judge, that he has narrated this conversation in a manner which is slightly different in so far as the form, but not the substance; is concerned.
He has narrated the conversation in a running form.
We have reproduced it like a dialogue in a play, without adding anything of our own.
Indeed, we have taken care not to make any changes at all in the fictional conversation imagined by the learned Judge because, the questions and answers which suggested themselves to him are, in a sense, the heart of the matter and, in any case, constitute the essence of his judgment.
With respect to the learned Judge, the basic error of his judgment lies in an easy, unexamined assumption which he has made on a significant aspect of the matter.
The detenu reminded the detaining authority that the C.I.D. report did not refer to any speech made by him "in a Shaheedi Conference at a given time, on a given date, at a given place at Baba Bakala and before a Sikh gathering numbering 2000/2200".
The detaining authority could have not possibly replied to that question by saying merely that the detenu was right.
The detenu was right only formally or technically.
That is because, the C.I.D. report was supplied to him along with the grounds of detention with the express stipulation that it formed "the base of the grounds of detention".
The grounds mention every one of the details which need have been mentioned.
The C.I.D. report was furnished to the detenu as forming the source of information leading to the conclusion that he had made a speech which necessitated his detention in the interests of public order.
In the circumstances, the grounds and the material furnished to the detenu have to be read together as is the material in the form of the C.I.D. report was a continuation of the grounds of detention.
The unqualified reply given by the detaining authority to the detenu, as imagined by the learned Judge, betrays considerable unfamiliarity with the true legal position of the part on the detaining authority.
Not only that, but it shows that the detaining authority forgot that the particulars and the grounds were expressed to be interlinked, the former being the base of the latter.
The detaining authority should have explained to the detenu that though the particulars supplied to him did not mention those various details, the particulars were supplied to him along with the grounds, that it was expressly clarified contemporaneously that they related to the facts stated in the grounds, that the two had to be read together and that the grounds contained the necessary facts with full details.
The dialogue should 58 have ended there and the curtain rung down.
Indeed, the dialogue, though carefully improvised by the learned Judge, assumes what is to be decided, namely, whether the particulars furnished to the detenu suffer from the infirmity alleged.
Nevertheless, we will examine independently the argument of the respondent that he could not make an effective representation against the order of detention because the material supplied to him, that is to say, the C.I.D. report of the speech alleged to have been made by him at the Shaheedi Conference, did not contain the material particulars which formed an important constituent of the grounds served upon him.
His grievance is that the C.I.D. report of his speech does not mention that: (1) the Conference was held on July 8, 1983; (2) it was held at Nihang Chhowani; (3) it was held between the hours of 11.
A.M. and 4.45 P.M. (4) it was a "Shaheedi Conference"; (5) there was a gathering of 2000 to 2200 persons at the Conference; and that, (6) the speech made by him referred to an encounter at Baba Bakala and Tarn Taran.
Article 22 (5) of the Constitution, around which the argument or the respondent revolves, reads thus: "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." This Article has come up for consideration before this Court in a large number of cases.
One of the earliest judgments of this Court on the interpretation of this Article is reported in Dr. Ram krishna Bhardwaj vs The State of Delhi,(1) in which Patanjali Sastri, C.J. observed that under Article 22 (5) of the Constitution, the detenu has the right to be furnished with particulars of the grounds of his detention, "sufficient to enable him to make a representation which, on being considered, may give relief to him".
Khudiram Das vs The State of West Bengal, 2 is a judgment of a four Judge Bench of this Court in a case which arose under the Main 59 tenance of Internal Security Act, 1971.
One of us, Bhagwati, J., who spoke for the Court, surveyed the decisions bearing on the question of the obligation of the detaining authority and explained the nature of that obligation thus: "The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds ' within the contemplation of article 22 (5) and section 8 and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest.
This has always been the view consistently taken by this Court in a series of decisions.
" In Mohammad Yousuf Rather vs The State of Jammu & Kashmir,(1) Chinnappa Raddy, J., in a concurring judgment, dealt with the implications of Article 22 (5) of the Constitution thus: "The extent and the content of Article 22 (5) have been the subject matter of repeated pronouncements by this Court (Vide State of Bombay vs Atmaram (2), Dr. Ramkrishna Bhardwaj vs State of Delhi (1) Shibbanlal Saxena vs State of Uttar Pradesh (3) Dwarkadas Bhatia vs State of Jammu & Kashmir (4).
The interpretation of Article 22, consistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights.
The law is now well settled that a detenu has two rights under Article 22 (5) of the Constitution .
(1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him." In Khudiram Das vs The State of West Bengal,(2) it was observed that these two safeguards "are the barest minimum which must be 60 observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security".
The question which we have to consider in the light of these decisions is whether sufficient particulars of the first ground of detention were furnished to the respondent so as to enable him to exercise effectively his constitutional right of making a representation against the order of detention.
The obligation which rests on the detaining authority in this behalf admits no exception and its rigour cannot be relaxed under any circumstances.
Having given our anxious consideration to this question, it seems to us impossible to accept the view of the High Court that sufficient particulars of the first ground of detention where not furnished to the detenu so as to enable him to make an effective representation to the detaining authority, that is to say, a representation which on being accepted may give relief to him.
This is not a case in which the ground of detention contains a bare or bald statement of the conclusion to which the detaining authority had come, namely, that it was necessary to pass the order of detention in order to prevent the detenu from acting in a manner prejudicial to the interests of public order.
The first ground of detention with which we are concerned in this appeal, mentions each and every one of the material particulars which the respondent was entitled to know in order to be able to make a full and effective representation against the order of detention.
That ground mentions the place, date and time of the alleged meeting.
describes the occasion on which the meeting was held, that is, the 'Shaheedi Conference '.
It mentions the approximate number of persons who were present at the meeting.
Finally, it mentions with particularity the various statements made by the respondent in his speech.
These particulars mentioned in the grounds of detention comprise the entire gamut of facts which it was necessary for the respondent to know in order to make a well informed representation.
The inadequacies from which the supplementary particulars furnished to the respondent along with ground No. 1 suffer, cannot affect that position because, they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground.
The argument of the respondent that he could not make an effective representation in behalf of ground No. 1 because of the inadequacy of data in the particulars supplied to him, has therefore to be rejected.
However, we are somewhat surprised that in a matter of this nature, 61 the detaining authority should have adopted a somewhat casual and unimaginative approach to his task.
We asked the learned Attorney General to produce before us the original version of the C.I.D. report of which an extract was supplied to the respondent by way of particulars.
The original version contains almost every one of the material details pertaining to the meeting which are mentioned in ground No. 1 The detaining authority needlessly applied his scissors excising the data which mentioned the date, the place, the time and the occasion of the meeting.
It is this lack of thoughtfulness on the part of the detaining authority which furnished to the respondent the semblance of an argument.
This Court has observed in numerous cases that, while passing orders of detention, great care must be brought to bear on their task by the detaining authorities.
Preventive detention is a necessary evil but essentially an evil.
Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution.
Nothing less.
We will utter the of given warning yet once more in the hope that the voice of reason will be heard.
Shri Hardev Singh contended, in the alternative, that the order of detention suffers from a total non application of mind because, that order could not have been passed on the basis of the C.I.D. report which does not refer to any of the facts which are mentioned in the order of detention.
It is undoubtedly true that the case of the appellants is that the order of detention is founded upon the report of the C.I.D., relating to the speech made by the respondent at the Shaheedi Conference.
But the argument of the learned counsel overlooks that what was furnished to the respondent was an extract from the C.I.D. report and not the whole of it.
However, that has not caused any prejudice to the respondent since the grounds and the particulars were served upon him simultaneously and ground No. 1 mentions every conceivable detail which it was necessary to mention in order to enable the respondent to make a proper representation against the order of detention.
Evidently, the detaining authority had before it the whole of the C.I.D. report on the basis of which it passed the order of detention.
What was omitted from the extract furnished to the respondent was incorporated in ground No. 1.
It is therefore not possible to accept the argument that the order of detention is bad because the detaining authority did not apply its mind to the question as to whether there was material on the basis of which the respondent could be detained.
It was further argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which 62 the order of detention was passed because, in the absence of knowledge of such evidence, the respondent could not have made an effective representation against the order of detention.
There is no substance in this contention.
It is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him.
In Beni Madhob Shaw vs The State of West Bengal,(1) it was argued on behalf of the detenu that the details of the activities attributed to him were not disclosed to him, as a result of which his right to make a representation to the Government was seriously prejudiced.
It was held by this Court that since the activities forming the grounds of detention were disclosed to the detenu in clear terms and since such disclosure furnished adequate information to the detenu to enable him to make an effective representation against his detention, the non disclosure of sources of information or the exact words of the information which formed the foundation of the order of detention could not be complained of.
In Her Jas Dev Singh vs State of Punjab,(2) it was held that the conclusions drawn from the available facts constitute 'the grounds ' and that the ground must be supplied to the detenu.
The Court observed that the detenu is not entitled to know the evidence nor the source of the information: What must be furnished to him are the grounds of detention and the particulars which would enable him to make out a case, if he can, for the consideration of the detaining authority.
In Vakil Singh vs State of Jammu and Kashmir, (3) it was held that since the basic facts, as distinguished from factual details were incorporated in the material which was supplied to the detenu, nothing more was required to be intimated to him in order to enable him to make an effective representation.
These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as, for example, the evidence corroborating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without which a full and 63 effective representation cannot be made.
If the order of detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu as held by this Court in Ichhu Devi Choraria vs Union of India.(1) That question does not arise here since no such thing is referred to or relied upon in the first ground of detention.
Indeed the furnishing of the C.I.D. report, of which a truncated extract was furnished to the respondent, was a superfluous exercise in the light of the facts of the instant case.
Shri Hardev Singh relied upon the following passage in the judgment in Khudiram in support of his contention that the entire material which was before the detaining authority, including the evidence gathered by him, must be furnished to the detenu: "But if the grounds of detention are not communicated to him how can he make an effective representation ? The opportunity of making a representation would be rendered illusory.
The communication of the grounds of detention is, therefore, also intended to sub serve the purpose of enabling the detenu to make an effective representation.
If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that the 'grounds ' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based.
" These observations cannot be construed as meaning that the evidence which was collected by the detaining authority must also be furnished to the detenu.
As the very same paragraph of the judgment at page 839 of the report shows, what was meant was that the basic facts and the material particulars which form the foundation of the order of detention must be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without being apprised of the same, the detenu cannot possibly make an effective representation.
Shri Hardev Singh found serious fault with the fact that in answer to the writ petition filed by the respondent in the High Court, the counter affidavit was sworn by Shri K.C. Mahajan, Deputy Secretary in the Home Department of the Government of Punjab, and 64 not by the District Magistrate, Ludhiana, who had passed the order of detention.
We are not prepared to dismiss this submission as of no relevance or importance.
In matters of a routine nature, if indeed there are any matters of a routine nature in the field of detention, a counter affidavit may be sworn by a person who derives his knowledge from the record of the case.
However, in sensitive matters of the present nature, the detaining authority ought to file his own affidavit in answer to the writ petition and place the relevant fats before the Court which the Court is legitimately entitled to know.
In Shaik Hanif vs State of West Bengal, the counter affidavit on behalf of the State of West Bengal was filed by the Deputy Secretary (Home), who verified the correctness of the averments in his affidavit on the basis of the facts contained in the official records.
The District Magistrate; who passed the order of detention, did not file his affidavit and the explanation which he gave for not doing so was found to be unsatisfactory.
Following an earlier judgment in Naranjan Singh vs State of Madhya Pradesh, it was held by this Court that, in answer to a Rule issued in a habeas corpus petition, it is incumbent upon the State to satisfy the Court that the detention of the petitioner is legal and is in conformity not only with the mandatory provisions of the Act under which the order of detention is passed but is also in accord with the requirements implicit in Article 22(5) of the Constitution.
Sarkaria, Jobserved on behalf of the Court: "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is all the more desirable that in response to the Rule Nisi, the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under s.3 was passed.
If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under section 3 cannot be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.
" 65 After reviewing certain other decisions, the Court held that the failure to furnish the counter affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority.
In the result, the absence of the affidavit of the District Magistrate was held not to vitiate the order of detention.
In this case too, there are no allegations of mala fides against the District Magistrate and so, his failure to file a counter affidavit will not vitiate the order of detention.
We cannot, however, leave this subject without emphasising once again the importance of the detaining authority filing his own affidavit in cases of the present nature.
There are degrees of impropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so to judge.
Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority in filing his own affidavit may vitiate the order of detention.
Finally, Shri Hardev Singh has contended that the respondent was unable to give proper instructions to his counsel when the matter was heard by the Advisory Board.
Counsel says that the respondent was transferred from place to place and ultimately.
he was produced before the Advisory Board an hour or so before the commencement of proceedings before the Board.
That left no time for him to instruct his counsel.
We do not see any substance in this grievance.
The respondent was represented by an advocate before the Advisory Board.
The learned advocate argued the case of the respondent along with the cases of two other detenus.
It does not appear that any grievance was made by him that he was not able to obtain instructions from the respondent so as to be able to represent his case effectively before the Advisory Board.
For these reasons, we allow the appeal and set aside the judgment of the High Court.
As desired by counsel for the respondent, we remand the matter to the High Court for disposal of the remaining contentions raised by the respondent in his Writ Petition.
We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment.
It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment 65 is ready for pronouncement.
Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention.
If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court.
That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented.
The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It may be thought that such orders are passed by this Court and therefore there is no reason why the High Courts should not do the same.
We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them.
The Supreme Court is the final Court in the hierarchy of our courts.
Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances.
Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes.
We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy.
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The respondent challenged the order of his detention passed by the District Magistrate, Ludhiana on October 3,1983 under section 3 (3) read with section 3 (2) of the , through Criminal Writ Petition No. 516 of 1983.
According to the petitioner respondent, the grounds of detention served on him on Oct. 6, 1983 showing that he was detained on the basis of two speeches made by him on 8.7.1983 and 20.9.1983 as recorded by the Crime Investigation Department of the Punjab Police contained certain particulars, which were totally absent from the supporting material and therefore no reasonable person could have possible passed the detention order on the basis of such material.
The High Court accepted the contention and made the rule absolute.
Hence the appeal by the State after obtaining special leave.
Allowing the appeal and remanding the matter to the High Court of Punjab, the Court ^ HELD: 1:1.
While passing orders of detaining great care must be brought to bear on their task by the detaining authorities.
Preventive detention is a 51 necessary evil but essentially an evil.
Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution.
Nothing less.
[61 B C] 1:2.
In the instant case, the detaining authority should not have adopted a somewhat casual and unimaginative approach to his task.
The original version contains almost every one of the material details pertaining to the meeting, which are mentioned in ground No.1.
The detaining authority needlessly applied his scissors excising the data which mentioned the date, place, the time and the occasion of the meeting.
It is this lack of thoughtfulness on the part of the detaining authority which furnished to the respondent the semblance of an arguments.
[61 A B] 2.
The contention of the respondent that he could not make an effective representation in behalf of ground No.1 because of the inadequacy of data in the supporting particulars supplied to him is incorrect.
The inadequacies from which the supplementary particulars furnished to the respondent along with ground No.1 suffer, cannot affect that position because, they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground.
The first ground of detention mentions that the detenu was right only formally or technically.
That is because, the C.I.D. Report was supplied to him along with the grounds of detention with the express stipulation that it formed "the base of the grounds of detention.
" The grounds mention every one of the details which need have been mentioned.
The C.I.D. report was furnished to the detenu as forming the source of information leading to the conclusion that he had made a speech which necessitated his detention in the interests of public order.
In the circumstances, the grounds and the material furnished to the detenu have to be read together as if the material in the form of the C.I.D. report was a continuation of the grounds of detention.
[57 C E, 60 F H] Dr. Ramakrishna Bhardwaj vs The State of Delhi, ; , Khudiram Das vs The State of West Bengal, ; , @ 838 & 840; Mohammed Yusuf Rowther vs The State of J & K, ; @ 268, 269; State of Bombay vs Atmaram, ; Shibbanlal Saxena vs State of Uttar Pradesh, ; ; Dwarkadas Bhatia vs State of Jammu & Kashmir, ; ; referred to.
The detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as for example, the evidence corroborating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without which a full and effective representation cannot be made.
If the order of the detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu.
It is not the law that evidence gathered by the detaining authority against the detenu must also be furnished to him.
[62 G H; 63 A B] Beni Madhob Shaw vs The State of West Bengal, A.I.R. Har Jas Dev Singh vs State of Punjab, ; @ 288; Vakil Vakil Singh vs State of Jammu & Kashmir, A.I.R. 1974 2337 @, 2341; Icchu Devi Choraria vs Union of India; , @ 650; referred to.
The failure to furnish the counter affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases 52 it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority.
There are no allegations of mala fides against the District Magistrate and so, his failure to file a counter affidavit will not vitiate the order of detention.
[65 A B] Shaik Hanif vs State of West Bengal, [1974]3 SCR 258; Naranjan Singh vs State of Madhya Pradesh, A.I.R. 1972 S.C. 2215, referred to.
[The Court emphasised the importance of the detaining authority filing his own affidavit in cases of the present nature and observed that "There are degrees of impropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so to judge.
Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority in filing his own affidavit may vitiate the order of detention.] [65 C D] 5.
It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement.
If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court.
That places this Court in a predicament because, without the benefit of the reasoning of the High Court it is difficult for this Court to allow the bare order to be implemented.
The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
[65 H; 66 A C]
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Sri.Sagar., learned counsel., for the petitioner has
appeared in person.
Sri. Gopalkrishna Soodi., learned counsel for respondent
No.1 has appeared through video conferencing.
2. The brief facts are these:
It is stated that the petitioner was working as Circle
Inspector at D.R.B.C Branch, Chikkaballapur at the time of the
alleged incident. Later, he was promoted and he was posted at
It is averred that the second respondent telephoned the
petitioner on 26.09.2010 and informed him that on 19.09.2010
that while having food at the LVT Daba, he had a scuffle with a
person named Mr.Lakshmikanth and 15 others concerning the
payment of commission for purchasing land. The second
respondent requested the petitioner to register a case based on
the complaint given to the Doddaballapur Police Station. Based
WP No. 51993 of 2015
on the request, the petitioner telephoned the PSI Mr.Rajendra
Kumar, and instructed him to take necessary action. Pursuant
to the complaint given by the second respondent on
26.09.2010 the Police Sub-Inspector -Mr.Rajendra Kumar., filed
FIR in Cr.No.107/2010 for the alleged offences punishable
under Sections 143, 147, 148, 342, 323, 324, 506(b), 327 read
with Section 149 of IPC against Mr.Lakshmikanth and fifteen
Thereafter, the PSI being the Investigating Officer,
conducted the investigation and filed a charge sheet with Addl.
Civil Judge and JMFC, Doddaballapur. Based on the charge
sheet, the Court conducted proceedings and passed the
Judgment acquitting the accused Mr.Lakshmikanth on
As things stood thus, Sri.K.A.Appanna - the second
respondent filed a complaint with the Karnataka State Human
Rights Commission against the petitioner and Mr.Rajendra
Kumar, the PSI of Doddaballapur. Based on the complaint, the
Commission sent a copy of the complaint to the Inspector
General of Police, Karnataka Human Rights Commission for
WP No. 51993 of 2015
conducting an inquiry and to submit a report. Accordingly, the
IGP, KHRC after conducting an inquiry, submitted a report.
Based on the report submitted by IGP, KHRC proves the
charges only against Mr.Rajendra Kumar, PSI Doddaballapur.
The Commission issued notice to Mr.Rajendra Kumar on
30.04.2012 to give a written reason for the report submitted by
the Inspector General of Police, Karnataka Human Rights
Commission. Accordingly, Mr.Rajendra Kumar submitted a
written statement of reason justifying his actions.
Subsequently, the Commission based on the complaint, report
of IGP, KHRC, and a written statement of reason by
Mr.Rajendra Kumar, PSI Doddaballapur vide order dated
20.06.2015. imposed a fine of Rs.10,000/- (Rupees Ten
Thousand only) not only on Mr. Rajendra Kumar’s PSI but also
on the petitioner.
Under these circumstances, the petitioner left with no
other alternative and efficacious remedy is filing this Writ
Petition under Articles 226 and 227 of the Constitution of
Learned counsel for the petitioner and respondent No.1
urged several contentions.
4. Heard, the contentions urged on behalf of the
respective parties and perused the Writ papers and also the
Annexures with utmost care.
Sri.Sagar., learned counsel for the petitioner vehemently
contended that the petitioner being the Circle Inspector has
discharged his duties honestly and obediently. He argued that
the moment the petitioner received a telephone call from the
complainant – the second respondent, he properly instructed
the PSI Mr.Rajendra Kumar to act in accordance with the law.
He argued by saying that under his direction, the PSI filed FIR
in Crime No.107/2010. Hence, there is no dereliction of duty
as noticed by the Commission. Counsel, therefore, submits that
the order passed by the Commission imposing a penalty of
Rs.10,000/- (Rupees Ten Thousand only) on the petitioner is
By way of answer, Sri.Gopalkrishna Soodhi., learned
counsel for Commission submits that the Commission has found
that the petitioner being the Circle Inspector has not
discharged his duties properly. Hence, taking note of the
material evidence on record, in particular the statements which
WP No. 51993 of 2015
are recorded before the Commission, the Commission justified
in imposing a penalty. Counsel, therefore, sought to justify the
order passed by the Commission.
The short point which arises for my consideration is:
Is the imposition of a penalty on the
The facts have been sufficiently stated and the same does
not require reiteration.
Suffice it to note that the petitioner being the Circle
Inspector received a telephone call from the second
respondent. A request was made by the second respondent to
register a case based on his complaint. It is seen from the
records that the petitioner being the Circle Inspector instructed
the Police Sub-Inspector - Mr.Rajendra Kumar on the very
same day and directed him to take necessary action.
The second respondent gave the complaint on
26.09.2010. Thereafter, the PSI Mr.Rajendra Kumar filed an
FIR in Cr.No.107/2010. It is pivotal to note that the
Investigating Officer conducted an investigation and filed a
charge sheet with the Addl. Civil Judge and JMFC,
WP No. 51993 of 2015
Doddaballapur. The Court conducted proceedings and the same
was ended in the order of acquittal of the accused
As things stood thus, for the best reasons known to the
second respondent, complained to the Karnataka Human Rights
Commission that there is a dereliction of duty by the petitioner.
It is further relevant to note that based on the complaint, the
Commission proceeded in the matter. In my opinion, the
giving of the complaint and the initiation of the proceedings by
the commission is unsustainable in law. law. The reason is quite
simple. Proceedings before the appropriate forum have been
concluded. It is pivotal to note that the order of acquittal was
passed by the court. If the second respondent had any
grievance or was not satisfied with the order of acquittal of
Mr.Lakshmikanth, the proper course would have been in a
different Forum altogether. Furthermore, even the finding of
the commission that the petitioner has not instructed the PSI in
writing is wholly incorrect and untenable. It is common sense
that the Circle Inspector is higher in ranking than the Police
Sub-Inspector. Based on a telephone call the petitioner has
WP No. 51993 of 2015
directed the official concerned i.e., PSI Mr.Rajendra Kumar to
act in accordance with the law.
It is needless to observe that legal action was set in
motion and the Court has passed the Judgment as per the law.
Therefore, in my opinion, there is no dereliction of duty as
alleged by the complainant. I may venture to say that the
commission has failed to have regard to relevant considerations
and disregarded relevant matters. In my considered opinion,
the imposition of penalty so far as the petitioner is concerned is
unsustainable in law. Hence, the same is liable to be set aside.
The result is that the Writ Petition will be allowed. This
court orders a writ of Certiorari. The order dated:20.06.2015
passed by the Human Rights Commission in
H.R.C.No.4860/2011(SB-1) vide Annexure-A imposing a
penalty of Rs.10,000/- (Rupees Ten Thousand only) in so far as
the petitioner is concerned is set-aside.
Resultantly, the Writ Petition is allowed.
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The Karnataka High Court has said initiation of proceedings by a complainant, post acquittal of the accused before the Karnataka State Human Right Commission, against a police officer who investigated the complaint and filed a chargesheet in the case is unsustainable in law.
A single judge bench of Justice Jyoti Mulimani made the observation while allowing a petition filed by police inspector Siddalingappa S T and quashed the order passed by the Commission dated 20.06.2015, imposing a penalty of Rs.10,000 on the charges of dereliction of duty.
The complainant K.A. Appanna had telephoned the petitioner on 26.09.2010 and informed him that on 19.09.2010 that while having food at the LVT Daba, he had a scuffle with a person named Mr.Lakshmikanth and 15 others concerning the payment of commission for purchasing land. He requested the petitioner to register a complaint.
The petitioner telephoned PSI Rajendra Kumar, and instructed him to take necessary action. Pursuant to which an FIR was filed for the alleged offences punishable under Sections 143, 147, 148, 342, 323, 324, 506(b), 327 read with Section 149 of IPC against Lakshmikanth and fifteen others. Thereafter, the PSI being the Investigating Officer, conducted the investigation and filed a charge sheet. Based on the charge sheet, the Court conducted proceedings and passed the Judgment acquitting the accused on 15.07.2013.
Following which the complainant approached the Commission, which forwarded the complaint to the Inspector General of Police for conducting an inquiry and to submit a report. Based on the report submitted by IGP, KHRC proved the charges only against Mr.Rajendra Kumar, PSI Doddaballapur. The Commission issued notice to him on 30.04.2012 to give a written reason for the report submitted by the Inspector General of Police.
He then submitted a written statement of reason justifying his actions. Subsequently, the Commission based on the complaint, report of IGP, KHRC, and a written statement of reason by Rajendra Kumar, vide order dated 20.06.2015 imposed a fine of Rs.10,000 not only on Rajendra Kumar’s PSI but also on the petitioner.
The petitioner contended that petitioner being the Circle Inspector has discharged his duties honestly and obediently. The moment the petitioner received a telephone call from the complainant – the second respondent, he properly instructed the PSI Mr.Rajendra Kumar to act in accordance with the law.
The bench on going through the records said “Proceedings before the appropriate forum have been concluded. It is pivotal to note that the order of acquittal was passed by the court. If the second respondent had any grievance or was not satisfied with the order of acquittal of Lakshmikanth, the proper course would have been in a different Forum altogether.”
It added “Even the finding of the commission that the petitioner has not instructed the PSI in writing is wholly incorrect and untenable.”
Following which it held “Legal action was set in motion and the court has passed the judgment as per the law. Therefore, in my opinion, there is no dereliction of duty as alleged by the complainant. The commission has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the imposition of penalty so far as the petitioner is concerned is unsustainable in law. Hence, the same is liable to be set aside.”
Accordingly it allowed the petition.
Case Title: Siddalingappa S T And Karnataka State Human Rights Commission.
Case No: WRIT PETITION NO. 51993 OF 2015
Date of Order: 03-02-2023
Appearance: Advocate Sagar for Advocate Deepak J for petitioner.
Advocate Gopalkrishna Soodi for R1.
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Appeal No. 712 of 1966.
Appeal by special leave from the order dated July 27, 1964 of the Madhya Pradesh High Court in Misc.
Petition No. 272 of 1964.
section C .
Chaturvedi, K. Mehta and M. V. Goswami, for the appellant.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The appellant was a temporary Civil Judge in Madhya Pradesh.
On March 14, 1961 an order was issued in the name of the Governor of Madhya Pradesh State that the appellant "is appointed temporarily, until further orders, as Civil Judge", Rule 12 of the Madhya Pradesh Government Servants (Temporary and Quasi permanent Service) Rules, 1960 provided: 12(a) Subject to any provision contained in the order of appointment or in any agreement between the gov 474 ernment and the temporary government servant, the service of a temporary government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority or by the ap pointing authority to the Government servant; Provided that the services of any such government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the notice, or as the case may be, for the period by which such notice falls short of one month or any agreed longer period Provided further that the payment of allowances shall be subject to the conditions under which such allowances are admissible.
(b) The periods of such notice shall be one month unless otherwise agreed between the Government and the Government servant.
" On March 25, 1964 an order was issued by and in the name of the Governor terminating the appellant 's services.
The order stated : "The service of Shri Ram Gopal Chaturvedi, temporary Civil Judge, Waidhan, are terminated with effect from the 1st June 1964, forenoon." The appellant filed a writ petition in the Madhya Pradesh High Court for quashing the order dated March 25, 1964.
The High Court summarily dismissed the petition.
It held that the impugned order was not by way of punishment and that the appellant 's services were liable to be terminated under the aforesaid rule 12 on one month 's notice.
The appellant has filed the present appeal after obtaining special leave.
The appellant was a temporary government servant and was not in quasi permanent service.
His services could be terminated on one month 's notice under r. 12.
There was no provision in the order of appointment or in any agreement that his services could not be so terminated.
Counsel for the appellant submitted that rule 12 was uncon stitutional as it was framed without consulting the State Public Service Commission and the High Court.
The contention raises mixed questions of law and fact.
It was not raised in the High 475 Court, and we indicated in the course of arguments that the appellant could not be allowed to raise it in this Court for the first time.
Counsel next submitted that rule 12 was violative of articles 14 and 16 of the Constitution.
There is no merit in this contention.
Rule 12 applies to all temporary government servants who are not in quasi permanent service. 'All such government servants are treated alike.
The argument that rule 12 confers an arbitrary and unguided discretion is devoid of any merit.
The services of a temporary government servant may be terminated on one month 's notice whenever the government thinks it necessary or expedient to do so for administrative reasons.
It is impossible to define before hand all the circumstances in which the discretion can be exercised.
The discretion was necessarily left to the gov ernment.
It was argued that the appellant 's services could not be terminated on one month 's notice as (a) his confirmation was recommended by the High Court after the expiry of the probationary period and (b) the advertisement dated September 9, 1960 inviting applications for the temporary posts (if civil judges did not specifically mentioned that their services could be so terminated.
The point that the High Court had recommended the appellant 's confirmation was not raised in the High Court and cannot be allowed to be, raised in this Court for the first time.
The appellant 's services were subject to the relevant rules and could be terminated on one month 's notice under rule 12.
It is immaterial that the advertisement did not specifically mentioned that his services could be so terminated.
It was argued that the impugned order was invalid as it was passed without consulting the State Public Service Commission under article 320(2)(c) of the Constitution.
There is no merit in this contention.
The case of State of U.P. vs M. L. Srivastava(1) decided that the provisions of article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action.
It was next argued that the impugned order was passed by way of punishment without giving the appellant an opportunity to show cause against the proposed action and was therefore violative of article 311 of the Constitution.
In this connection, counsel It for the appellant drew our attention to the statement of case filed on behalf of the respondent.
It appears that there were complaints (1) ; 476 that the appellant was associating with a young girl named Miss Laxmi Surve against the wishes of her father and other members of her family.
The Chief Justice of Madhya Pradesh made inquiries into the matter and on February 19, 1954 he admonished the appellant for this disreputable conduct.
On his return to Jabalpur on February 28, 1964 the Chief Justice dictated the following note: "During my recent visit to Gwalior, I probed into the matter of Shri R. G. Chaturvedi, Special Magistrate (Motor Venicles), Gwalior, giving shelter to a girl named Kumari Laxmi Surve, the daughter of a Chowkidar employed in the J. C. Mills Gwalior.
The enquiry made by me revealed that Shri Chaturvedi has been associating with this girl for over a year and his relations with her are not at all innocent.
He is sheltering and supporting Miss Surve against the wishes of her father and other members of her family.
This is evi dent from the fact that on 14th December 1963, when the girl was at the residence of Shri Chaturvedi and when her younger brother came to take her back, his house was stormed by a mob of 300 to 400 persons.
A report of this incident was also recorded in the Roz namcha Am of Lashkar Kotwali.
The statement published by Miss Surve in some newspapers published from Gwalior explaining his action and her relation with her parents is significant.
In that statement Miss Surve gave her address as 'C/o.
Shri Chaturvedi.
That the statement is one inspired by Shri Chaturvedi is obvious enough.
Shri Chaturvedi is still maintaining the girl.
Shri Chaturvedi did not enjoy good reputation at Morena and Kolaras where he was posted before his posting at Gwalior.
Shri Bajpai, District Judge, Gwalior, also informed me that Shri Chaturvedi was not honest and that in collaboration with the Traffic Inspector he has taken money from accused persons in many cases under the Motor Vehicles Act." No charge sheet was served on the appellant nor was any departmental inquiry held against him.
On March 1O, 1964 the Madhya Pradesh High Court passed a resolution that the State Government should terminate the appellant 's services.
Having regard to this resolution the State Government passed the impugned order dated March 25, 1964.
On the face of it, the order did not cast any stigma on the appellant 's character or integrity nor did it visit him with any evil consequences.
It was not passed by way of punishment and the provisions of article 311 were not attracted.
477 It was immaterial that the order was preceded by an informal inquiry into the appellant 's conduct with a view to ascertain whether he should be retained in service.
As was pointed out in The State of Punjab vs Sukh Raj Bahadur(1) : "An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
" It was next argued that the impugned order was in violation of the principles of natural justice and in this connection reliance was placed on the decision of this Court in State of Orissa vs Dr. (Miss) Binapani Dei & Ors.(2) and Ridge vs Baldwin(3).
In Binapani 's Case the appellant was an assistant surgeon in the Orissa medical service.
The State government accepted the date of birth given by her on joining the service.
Later the government refixed the date of her birth on ex parte inquiry and passed an order compulsorily retiring her.
The Court held that its order was invalid and was liable to be quashed.
The appellant as the holder of an office in the medical service had the right to continue in service.
According to the rules made under article 309 she could not be removed from the office before superannuation except for good and sufficient reasons.
The ex parte order was in derogation of her vested rights and could not be passed without giving her an opportunity of being heard.
In the present case, the impugned order did not deprive the appellant of any vested right.
The appellant was a temporary government servant and had no right to hold the office.
The State government had the right to terminate his services under rule 12 without issuing any notice to the appellant to show cause against the proposed action.
In Ridge vs Baldwin(3) the House of Lords by majority held that the order of dismissal of a chief constable on the ground of neglect of duty without informing him of the charge made against him and giving him an opportunity of being heard was in contravention of the principles of natural justice and was liable to be quashed.
Section 191 of the Municipal Corporations Act, 1882 provided that the watch committee might at any time suspend and dismiss any borough constable whom they thought negligent in the discharge of his duty or otherwise unfit for the same.
The chief constable had the right to hold his office and before depriving him of this right the watch committee was required to conform to the principles of natural justice.
The order of dismissal visited him with the loss of office and involved an element of punishment for the offences committed.
In the present case, the impugned order (1) ; (2) ; (3) ; 478 did not involve any element of punishment nor did it deprive the appellant of any vested right to any office.
It was next argued that the State Government blindly followed the recommendations of the High Court.
We find no merit in this argument.
The State government properly followed those recommendations.
The High Court is vested with the control over the subordinate judiciary, see The State of West Bengal vs N. N. Bagchi (1).If the High Court found that the appellant was not a fit person to be retained in service, it could properly ask the government to terminate his services.
Following the advice tendered by the High Court, the government rightly terminated his services under rule 12.
In the result, the appeal is dismissed.
There will be no order as to costs.
Y.P. Appeal dismissed.
(1)[1966] 1 S.C.R. 771.
LI 3Sup.
CI(NP)69 2,500 2 5 70 GIPF.
|
The appellant was appointed temporarily, to the judicial service in the respondent State.
On complaints, that the appellant was associating with a girl, and was taking bribes, the Chief Justice of the High Court enquired into, them and the High Court recommended to the State Government to terminate the appellant 's service.
The Government passed an order under r. 12 of the M. P. Government Servants (Temporary and Quasi permanent Service) Rules, 1960 stating only that the services of the appellant are terminated from a specified day.
The appellant filed a writ petition in the High Court against this order.
The High Court dismissed the petition.
in appeal, to this Court, the appellant contended that (i) r. 12 was violative of articles 14 and 16 of the Constitution as it conferred arbitrary and unguided discretion to the Government; (ii) the impugned order was as invalid as it was passed without consulting the State Public Service Commission under article 320(3)(c) of the Constitution; (iii) the order was passed by way of punishment without giving the appellant an opportunity to show cause against the proposed action and was therefore violative of article 311 of the Constitution; (iv) the order was in violation of the principles of natural justice, as no charge sheet was served nor any departmental inquiry held; and (v) the State Government erred in blindly following the recommendations of the High Court.
Repelling the contentions.
this Court, HELD : The appellant was a temporary government servant and was in not quasi permanent service.
His services could be terminated on one month 's notice under r. 12.
There was no provision in the order of appointment or in any agreement that his service could not be 'so terminated.
(i) Rule 12 applies to all temporary government servants who are not in quasi permanent service.
All such government servants are treated alike.
The agrument that r. 12 conferred an arbitrary and unguided discretion was devoid of any merit.
The services of a temporary government servant may be terminated on one month 's notice whenever the government thinks it necessary or expedient to do so for administrative reasons.
It was impossible to define before hand all the circumstances in which the discretion could be exercised.
The discretion was necessarily left to the government.
[475B] (ii) The provisions of article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action.
[475G] 473 State of U.P. vs M. L. Srivastava, ; , followed.
(iii) On the face of it, the order did not cast any stigma on the appellant 's character or integrity nor did it visit him with any evil consequences It was not passed by way of punishment and the provisions of article 311 were not attracted.
[476H] It was immaterial that the order was preceded by an informal inquiry into the appellant 's conduct with a view to ascertain whether he would be retained in service.
[477A] State of Punjab vs Sukh Rai Bahadur, ; , followed.
(iv) In the present case, the impugned order did not involve any element of punishment nor did it deprive the appellant of any vested right to any office.
The appellant was a temporary Government servant and had no Tight to hold the office.
The state government had the right to, terminate his servicess under r. 12 without issuing any notice to the appellant to, show cause against the proposed action.
[477H] (v) The government rightly terminated the services, following the advice tendered by the High Court.
The High Court is vested with the control over the subordinate judiciary.
If the High Court found that the appellant wits not a fit person to be retained in service, it could properly ask the government to terminate his services.
[478B] State of West Bengal vs N. N. Bagchi, [1966] 1 S.C.R. 771, followed.
State of Orissa vs Dr. (Miss) Binapani Dei & Ors. ; and Ridge vs Baldwsin, ; , referred to.
|
Special Leave Petition (Civil) No. 4826 of 1987 etc.
From the Judgment and order dated 6.4.1987 of the Allahabad High Court in C.M.A. No. 4555 (W) of 1987 in W.P. No. 2214 of 1987.
K. Parasaran, Attorney General, Milon K. Banerjee, Solicitor General, F.S. Nariman, Dr. Y.S. Chitale, H.L. Anand, K.K. Venugopal, A.K. Ganguli, S.N. Kacker, Anil B. Diwan, A.K. Sharma, Harish N. Salve, K.J. John, section Swarup, T.V.S.N. Chari, Vrinda Grover, Miss A. Subhashini, A. Subba Rao, R.B. Mehrotra, B.B. Sawhney, N.K. Sharma, P.V. Kapur, P.P. Malhotra, Miss Annoradha Dutt, P. Parmeshwaran, Navin Prakash and Naresh K. Sharma for the appearing parties.
973 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
What falls for consideration in all these matters is a common question of law, namely, whether equity shares in the two companies i.e. 10,00,000 shares in Swadeshi Polytex Limited and 17,18,344 shares in Swadeshi Mining and Manufacturing Company Limited, held by the Swadeshi Cotton Mills, vest in the Central Government under Section 3 of the Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1986 (hereinafter referred to as 'the Act ').
The other subsidiary question is whether the immovable properties, namely, the bungalow No. 1 and the Administrative Block, Civil Lines, Kanpur have also vested in the Government.
The question as to one more property known as Shrubbery property whether it has been taken over or not is still to be argued and is not covered by this judgment.
In order to appreciate the question in these matters it has to be borne in mind that there were six original proceedings initiated by various parties which gave rise to these civil appeals, special leave petitions and the transferred cases to this Court.
These six original proceedings are as follows: (1) On 18th of February, 1987 Suit No. 418 of 1987 was filed before the Delhi High Court by one Naresh Kumar Parti against Dr. Raja Ram Jaipuria, Swadeshi Polytex and others, praying for an order of injunction restraining the company from holding the 17th annual general meeting on the ground that 34% shares in Swadeshi Polytex have vested in National Textile Corporation (briefly referred to as NTC) in view of sections 3 and 4 of the said Act.
In this suit an application for grant of interim injunction was also filed praying that in the event the annual general meeting of the company is allowed to be held, an independent Chairman should be appointed to conduct the meeting.
Notice in respect of the said application was served upon the respondents on 20th of February, 1987.
On 4th March, 1987 the Delhi High Court refused to pass any order in view of the order already passed by the Allahabad High Court mentioned hereinafter.
Against this order of the Delhi High Court, two special leave petitions were filed in this Court one by Doypack Systems Pvt. Ltd., which was defendant No. 10 in the Delhi suit.
(Consequent upon grant of leave, the special leave petition came to be registered as Civil Appeal No. 577 of 1987).
The other special leave petition was filed by the plaintiff in the Delhi suit, Naresh Kumar Parti.
(Consequent upon grant of leave, the special leave petition came to be registered as Civil Appeal 974 No. 578 of 1987).
On 24th of February, 1987 one Hari Prasad Aggarwal, filed a suit being Case No. 183 of 1987 in the Court of Third Additional Civil Judge, Kanpur praying, inter alia, that Shri Raja Ram Jaipuria should not preside over the 17th annual general meeting of the Company.
On 27th of February, 1987, the application for interim injunction filed in the said suit was dismissed by the learned trial Judge.
In appeal which is not yet numbered preferred by the plaintiff before the Allahabad High Court an order was passed by the Court on 2nd March, 1987 appointing Shri M.P. Wadhawan as the Chairman of the said annual general meeting.
The consenting parties to the said proceedings before the Allahabad High Court were Shri Raja Ram Jaipuria and Swadeshi Polytex Limited.
Against this order of 2nd March, 1987 passed by the Allahabad High Court M/s. Doypack Systems Private Limited preferred a special leave petition in this Court.
Leave was granted and as mentioned hereinbefore it was registered as Civil Appeal No. 577 of 1987.
The three special leave petitions were heard together as Civil Appeals Nos. 577, 578 and 579 of 1987 and were disposed of by a common order on 6th March, 1987 by this Court appointing Shri Jaswant Singh as the Chairman of the said annual general meeting.
On 26th of February, 1987 another suit being Suit No. 506 of 1987, was filed in the Delhi High Court by one Mukesh Bhasin praying, inter alia, for a declaration that Swadeshi Cotton and Swadeshi Mining had no right in respect of 34% of the shareholdings in Swadeshi Polytex and that the said shares were vested in NTC by virtue of the said Act.
By an order dated 9th March, 1987 the Delhi High Court disposed of that application.
The learned Judge in that case was prima facie satisfied that the plaintiff in that case was entitled to an injunction claimed by him in the meeting to be presided over by Shri Jaswant Singh.
He granted injunction restraining the defendants Nos.3 and 4 in that suit from exercising any right whatsoever attached to 34% shares of defendant No.2 held by them and particularly any voting rights in the annual general meeting which was scheduled to be held on 9th of March, 1987 till decision of that suit.
This order was brought to the notice of this Court by CMP forming part of Civil Appeal Nos.
577 79 of 1987.
On 9th of March, 1987 on that CMP this Court passed an order directing that NTC, Swadeshi Cotton and Swadeshi Mining, all shall be entitled to vote at the annual general meeting and the question as to who were the rightful voters would be decided by the Chairman of the meeting.
It was further directed that the Chairman would keep these votes separately.
This is the Transferred Case No. 14 of 1987 herein.
On 7th of March, 1987 one Mukesh Jasnani a shareholder in Swadeshi 975 Polytex filed a writ petition in the Allahabad High Court (Lucknow Bench).
The High Court by its order dated 7th of March, 1987 dismissed that writ petition.
The High Court in the said order observed that Swadeshi Cotton and Swadeshi Mining would be entitled to vote at the 17th annual general meeting in respect of their shares which, according to NTC had vested in them.
Against this order dated 7th March, 1987, Doypack Systems preferred a special leave petition being SLP (Civil) No. 3112 of 1987.
On 9th March, 1987 this Court passed orders in this special leave petition directing that the meeting would be held under the Chairmanship of Shri Jaswant Singh notwithstanding any order made by any court, including the order dated 3rd March, 1987 passed by the Division Bench of the Allahabad High Court.
This Court also vacated the operative portion of the directions contained in the order dated 7th March, 1987 passed by the Allahabad High Court.
On 6th of April, 1987 M/s. Swadeshi Mining and Manufacturing Company filed a civil writ petition No. 2214 of 1987 in the Allahabad High Court (Lucknow Bench) praying, inter alia, for stay of the operation of the letters dated 24/30th March, 1987 addressed by NTC to Swadeshi Mining and Manufacturing and Swadeshi Cotton Mills Company Limited, calling for an Extraordinary General Meeting of the shareholders for removal of the Directors of Swadeshi Mining and Manufacturing Company Limited.
The Division Bench of the High Court (Lucknow Bench) passed an order on 6th of April, 1987, staying the operation of the said letters addressed by NTC to the companies.
Against that order, M/s. Doypack Systems Pvt.
Ltd. filed a Special Leave Petition No. 4826 of 1987.
NTC also filed a special leave petition against the said order, being SLP No. 5240 of 1987 in this Court.
Both these petitions were heard by this Court on 5th May, 1987.
By an order passed on 5th May, 1987 this Court directed that Suit No. 506 of 1987 filed in the Delhi High Court and Writ Petition No. 2214 of 1987 pending in the Allahabad High Court (Lucknow Bench) be transferred to this Court, (subsequently, registered as Transferred Cases Nos. 14 and 13 of 1987 respectively).
Consequent upon leave granted by this Court by the order dated 21st of January, 1987 NTC filed a civil suit in the District Court at Kanpur.seeking a declaration of its title in respect of Shrubbery property in Kanpur.
The learned Trial Judge refused any interlocutory injunction in the said suit against which an appeal was preferred before the High Court of Allahabad which was also declined and, consequently, NTC filed Special Leave Petition No. 7045 of 1987 in this Court.
This application is still pending and is awaiting disposal.
In this background these matters will have to be disposed of.
976 Swadeshi Mining and Manufacturing Co. Ltd. and others submitted that these shares did not vest in the Central Government.
The main thrust of Shri Nariman 's contention, who appeared on their behalf, was that section 3 of the Act provided that every textile undertaking and right, title and interest of the company, i.e. Swadeshi Cotton Mills Company Limited vested in the Central Government.
The "textile undertakings" mentioned in section 3 included all assets 'pertaining ' to the textile undertaking as per section 4 of the Act.
It is common ground that whether a particular asset is part of the textile undertaking and vests under section 3 or not, has to be considered in the context of the Act with reference to the language used in section 4 of the Act.
Shri Nariman submitted that there are different modes by which Parliament can resort to nationalisation.
These modes, according to him, are: (a) acquisition of 100% shares of the Company; (b) all assets under the ownership, possession or control of the company being vested in the Government; (c) only those assets in the ownership, possession or control of the company in relation to the undertakings which are taken over or "all properties pertaining to the undertaking" vest in the Government.
According to him, the expressions "pertaining to" or "in relation to" are expressions of limitation and restriction, in the absence of which each and every asset of the company would have vested in the Government.
The background and sequence of events leading to the enactment of this Act through which Shri Nariman took us in detail and it is useless to set them up in extenso, he submitted that the shares in question were all along being considered and treated as not comprising part of the textile undertaking.
He referred to the order dated 13th of April, 1978 issued by the Central Government under section 18AA of the Industries (Development and Regulation) Act, 1951 (hereinafter referred to as 'the IDR Act ').
This order did not purport to take over those shares held in the two companies by the Swadeshi Cotton Mills Company Limited.
He also drew our attention to Volume III pages 53 and 54 of the present volumes before us, which is the reply of the Minister of Law, Justice and Company Affairs.
It was clarified to the Parliament that the shares were distinct from the undertakings of the company whose management was taken over.
On 27th of March, 1979 in answer to a question 977 the Minister stated that apart from the six undertakings taken over and presently run by the National Textile Corporation Limited, the business of the company comprised of: (i) Investments in Swadeshi Polytex Limited, Ghaziabad.
(ii) Investments in Swadeshi Mining and Manufacturing Company Limited, a subsidiary company.
(iii) Land development business.
He drew our attention to the letter dated 9th of April, 1979 from the Chairman, Cotton Mills Ltd. in answer to a letter by the Director, Department of Company Affairs, stating that the shares in question and the voting rights in respect thereof continued to vest in the company, i.e. Swadeshi Cotton Mills Limited in spite of the taken over of the management.
Before we proceed further we must deal with the decision of this Court in Balkrishan Gupta and others vs Swadeshi Polytex Ltd. and others; , There it was observed that the fact that 3,50,000 shares had been pledged in favour of the Government of Uttar Pradesh would not make any difference.
The contention that was urged on behalf of the appellant therein, namely Balkrishan Gupta related to the effect of an order made by the Central Government on 13th of April, 1978 under section 18AA(1)(a) of the IDR Act taking over the management of Swadeshi Cotton Mills along with five other industrial units belonging to the Company which was the subject matter of dispute in Swadeshi Cotton Mills vs Union of India, ; and the order of extension passed by the Central Government on 26th November, 1983 which was the subject matter of dispute in that case before this Court It was urged in Balkrishan vs Swadeshi Polytex (supra) on behalf of the appellants therein that on the passing of the above orders under Section 18AA(1)(a), the Cotton Mills Company lost its voting rights in respect of the shares in question.
This Court held that was not so.
This Court emphasised that what was taken over was the management of the six industrial units referred to therein and not all the rights of the Cotton Mills Company.
The shares belonged, it was observed, to the company and the orders referred to above could not have any effect on these.
In that context, it was observed that the Department of Company Affairs, Government of India rightly expressed its view in the letter written by the Director in the Department of Company Affairs on 9th of April, 1979 to the 978 Chairman of the Cotton Mills Company that the voting rights in respect of these shares continued to vest with the Cotton Mills Company and the manner in which those voting rights were to be exercised was to be determined by the Board of Directors of the Cotton Mills Company.
Hence the passing of the orders under section 18AA(1)(a) of the IDR Act had no effect on the voting rights of the Cotton Mills Company.
It was further observed that the Polytex Company had in that case rightly treated the registered holder i.e. the Cotton Mills Company as the owner of the shares in question and to call the meeting in accordance with the notice issued under section 169 of the .
Therefore, a challenge to the validity of the meeting was negatived.
As good deal of reliance was placed on behalf of the petitioners on this decision, it must be emphasised that the decision must, however, be understood in the context of the facts and the language used in the order passed under section 18AA of the IDR Act whereby only the management had been taken over and not the rights of the company therein.
But by the present Act in question on the appointed day "every textile undertaking" and "the right, title and interest of the company in relation to every textile mill of such textile undertakings" were transferred to and vested in the Central Government and such textile undertakings would be deemed to include "all assets" and so in the context of this provision the reference and the reliance on the decision of the Balkrishan Gupta & others vs Swadeshi Polytex Ltd. and others (supra) is not, in our opinion, appropriate.
It is true by the IDR Act only management was taken over, but a further point was sought to be built up on behalf of the petitioners that the Act in question was passed to regularise what was taken over.
So because of this decision shares were not taken over by the Act.
In view of the significant difference between the objects of taking over of the assets and the taking over of the management this submission has to be stated to be rejected.
Reliance was also placed before us on the decision of the Delhi High Court in Writ Petition No. 408 of 1978.
The Delhi High Court held that the shares did not vest in the Government under the order dated 13th of April, 1978 issued under section 18AA of the IDR Act.
This judgment of the Delhi High Court was challenged in appeal before this Court.
This Court in its judgment in Swadeshi Cotton Mills vs Union of India (supra) set aside the order of take over dated 13th April, 1978 for violation of the principles of natural justice.
But this Court did not give any finding or order with regard to the finding of the High Court that the shares were not included in the take over order.
979 It was further urged before us that this Act was preceded by an ordinance namely, Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertakings) Ordinance, 1986 which was promulgated on 19th of April, 1986.
Section 10 of the ordinance entitled, it was submitted, NTC to exercise control over the business of the undertakings taken over.
the NTC passed an order to this effect on 25th April, 1986, but did not purport to take over the shares, according to Shri Nariman.
We cannot attach much significance to that fact as Shri Nariman sought us to do.
Shri Nariman referred us to the Statement of Objects and Reasons appended to the Bill and urged that it was not intended that the shares were included in the undertaking.
He submitted that the Statement of Objects and Reasons showed that the acquisition of the undertaking had to be resorted to since the order of taking over the management of the company issued under section 18AA of the IDR Act could not be continued any further.
The preamble to the Act, however, reiterated that the Act provided for the acquisition and transfer of textile undertakings and reiterated only the historical facts that the management of the textile undertakings had been taken over by the Central Government under section 18AA of the IDR Act and further that large sums of money had been invested with a view to making the textile undertakings viable and it was necessary to make further investments and also to acquire the said undertakings in order to ensure that interests of general public are served by the continuance of the undertakings.
The Act was passed to give effect to the principles specified in clauses (b) and (c) of Article 39 of the Constitution.
In our opinion, this was indicative of the fact that shares were intended to be taken over.
Shri Nariman, however, contended that NTC on 17th June, 1986 had issued an order under section 6 of the Ordinance transferring four of the textile undertakings to its subsidiary, the NTC, U.P. Limited.
According to him, the shares were not purported to be transferred under this Order.
This, however, in our opinion, is non sequitur.
It appears from the written statement filed by NTC on 8th of February, 1987 in the suit filed by one G.G. Bakshi in Ghaziabad Court, it was claimed that NTC was entitled to take over company 's shares and investments.
On 24/30th March, 1987 NTC issued notice to the petitioners 1 and 2 stating that they were entitled to shares.
It was urged by Shri Nariman that this belated assertion indicated that the 980 shares were not intended to be taken over.
We are unable to accept this suggestion or to draw that inference.
It does not logically follow.
On the date of the take over of the undertakings, according to Shri Nariman, 10,00,000 shares in Swadeshi Polytex Limited were attached for recovery of electricity dues of Swadeshi Cotton Mills and 3,50,000 shares were already pledged with the State Government of U.P. for securing the loans and advances made by the State Government for payment of wages.
These dues fall in Part II of the Schedule to the Act and are not payable under section 25 of the Act by the Government.
Shri Nariman submitted that compensation payable under the Act was not enough to pay all the dues falling in Part I.
He drew our attention to the Financial Memorandum of the Bill which showed that the Government would have to pay a further sum of Rs. 15 crores over and above the compensation amount.
It could not have been the intention of the Act to discharge these encumbrances, according to him, if they were to vest in the Central Government under section 3 of the Act and the result of which would be that the State of U.P. and the Electricity Board would not get anything towards their large dues.
We are unable to accept this submission.
This, in our opinion, is not the proper approach to the construction of the Act on the question whether the shares were taken over or not.
Shri Nariman submitted that while applying the rules of construction of contemporanea expositio, it must be held that the shares in question did not vest in the Central Government under section 3 of the Act.
This contention was to be supported from the external aids, namely, the background and history of the legislation.
There were internal aids in the Act itself to support this contention.
The internal aids, according to Shri Nariman, were (a) long title of the Act which used the expression "certain textile undertakings" and "ensuring contiuned manufacture, production and distribution of different varieties of cloth and yarn"; (b) the Preamble to the Act also emphasises, according to Shri Nariman, that the textile undertakings which were taken over under section 18AA should be continued for purposes of manufacture, production and distribution of cloth and yarn; (c) He further submitted that the Objects and Reasons appended to the Bill also supported that view; (d) section 2(k) of the Act enumerated only six textile undertakings which alone were taken over by the order issued under section 18AA; (e) sections 7 and 8 also provided an intrinsic aid to the construction of section 4, according to him.
Section 7 provided that an amount equal to the value of the assets which will vest in the NTC, would be deemed to be the Central Government 's 981 contribution to the equity capital of NTC and NTC shall issue shares to the Government having a face value equal to the amount specified in section 8.
The amount equal to the value of the assets was Rs.24.32 crores, which was the share capital of the Government in NTC.
This figure of Rs.24.32 crores does not take into account the value of the shares and hence the shares did not vest under sections 3 and 4 of the Act, according to him.
(f) the expression "pertaining to" appearing in section 4(1) means "forming part of".
Therefore, only those assets which formed part of the textile undertakings could vest in the Central Government, it was submitted by Shri Nariman.
It was for this reason that section 25 of the Act, while dealing with penalties, used the expression "assets forming part of" the textile undertakings.
Shri Nariman further submitted that Swadeshi Polytex Limited and Swadeshi Mining and Manufacturing Company Limited were two separate undertakings distinct from the six textile undertakings belonging to Swadeshi Cotton Mills Company Limited.
Acquisition of these shares having controlling interests in the said two companies was never intended and could never be said to be within the scope of the Act.
The expression "in relation to the six textile undertakings" appearing in sections 3 and 4 of the Act, was an expression of limitation, according to him, indicative of the intention of acquiring of only the textile undertakings and no other.
There existed no public purpose, according to Shri Nariman, for acquiring these shares.
The public purposes mentioned in the Act with reference to Article 39(b) and (c) related to the acquisition of only the textile undertakings of Swadeshi Cotton Mills and not acquisition of the synthetic fibre undertakings of Swadeshi Polytex or sugar undertakings of Swadeshi Mining and Manufacturing Company Limited.
Dr. Chitale appearing on behalf of Swadeshi Mining and Manufacturing Company Limited (as respondent in SLP (Civil) No. 5240 of 1987 in which NTC is the petitioner) supported Shri Nariman and advanced certain arguments.
His main arguments were: (1) Swadeshi Polytex Limited and Swadeshi Mining and Manufacturing Company Limited were two distinct undertakings different from the six textile undertakings belonging to Swadeshi Cotton Mills Company Limited.
Section 3 of the Act, therefore, according to him, could not be so construed as to enable the Government to indirectly acquire altogether different undertakings belonging to a different company.
982 (2) Swadeshi Mining and Manufacturing Company Limited had also coal mines.
When Coal mines (Nationalisation) Act, 1973 was passed with reference to sections 3 and 6 thereof, it were the coal mines belonging to the said company along with the right, title and interest of the owners in relation to the coal mines which vested in the Central Government by operation of the Act, we were reminded.
(3) Dr. Chitale submitted that the Act with which we are concerned uses the expression "pertaining to" in section 4, which according to him is narrower than the expression "in relation to" used in section 3 of the Coal mines (Nationalisation) Act, 1973.
When the coal mines were nationalised, the sugar undertakings of Swadeshi Mining were not taken over since these constituted separate undertakings distinct from the coal mines.
He referred to Entries 655, 656 and 657 of the Schedule to the Coal mines (Nationalisation) Act, 1973.
(4) Dr. Chitale submitted that the expression "investment" may belong to a fund which may be created, the interests of which may be used for payment of gratuity or provident fund to the employees.
The expression "investment" cannot be applied in the context of the shareholdings of a separate undertaking, according to him.
Shri S.B. Mukerjee, appearing on behalf of Swadeshi Cotton Mills had relied on the decision of the Delhi High Court, See Volume III pages 64 to 169, which according to him, clearly held that the shares in question were not part of the textile undertakings and, in fact, the said shares were not taken over along with the six textile undertakings belonging to Swadeshi Cotton Mills Limited, which we have discussed.
Shri Mukerjee further relied on the clarification given by the Company Law Board which showed that the voting rights in respect of the shares continued to vest in Swadeshi Cotton Mills and not in NTC.
He referred to the decision in Balkrishan Gupta and others vs Swadeshi Polytex Ltd. and another (supra), which has also been discussed.
The expression "relating to" and "pertaining to" are words of limitation and they cannot be so construed as to take within their fold shares held by Swadeshi Cotton Mills, an independent company doing its business, according to him.
Learned Solicitor General of India appearing on behalf of the National Textile Corporation in all these cases submitted that the facts 983 stated by way of background and the sequence of events up to the date of enactment of the Act were not relevant to the decision as to the scope, ambit and effect of the vesting provisions contained in sections 3 and 4 of the Act.
The sequence of events narrated by the petitioners prior to the enactment of the Act all related to the order of take over of the undertakings of Swadeshi Cotton Mills Company issued on 13th April, 1978 by the Central Government in exercise of its powers under section 18AA of the IDR Act.
The object and purpose of the said order of take over of management of the textile undertakings was completely different from the object and purpose of the Act which related to acquisition and transfer of the undertakings.
We agree.
The scope of the vesting provisions contained in section 3 of the Act would have to be determined per force of its own language employed by Parliament and not with reference to what transpired either before or after the order of take over of the management dated 13th April, 1978 passed under section 18AA of the IDR Act.
Section 3 of the Act, according to Solicitor General, contained the vesting provisions as was evident from its own language and also from the marginal note appended thereto.
For determining the question involved in these matters, it is necessary to bear in mind the relevant provisions of law.
The preamble to the Act in question provided as indicated before that this was an Act for the acquisition and transfer of certain textile undertakings of the Swadeshi Cotton Mills Company Limited with a view to securing the proper management of such undertakings so as to subserve the interests of the general public by ensuring the continued manufacture, production and distribution of different varieties of cloth and yarn.
The preamble further reiterated that it was to give effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution.
It reiterated that large sums of money had been invested with a view to making the said textile undertakings viable.
It further reiterated that large sums of money were necessary for the purpose of securing the optimum utilisation of the available facilities.
Section 3 of the said Act provides for transfer and vesting of the textile undertakings.
The material portions of sections 3 and 4 are as follows: "3(1) On the appointed day, every textile undertaking and the right, tilte and interest of the Company in relation to every such textile undertaking shall, by virtue of this Act, 984 stand transferred to, and shall vest in the Central Government.
(2) Every such textile undertaking which stands vested in the Central Government by virtue of sub section (1) shall, immediately after it has so vested, stand transferred to, and vested in the National Textile Corporation.
4.(1) The textile undertakings referred to in section 3 shall be deemed to include all assets, rights, lease holds, powers, authorities and privileges and all property, movable and immovable, including lands, buildings, workshops, stores, instruments, machinery and equipment, cash balances, cash on hand, reserve funds, investments and book debts pertaining to the textile undertakings and all other rights and interests in, or arising out of such property as were immediately before the appointed day in the ownership, possession, power or control of the Company in relation to the said undertakings, whether within or outside India, and all books of account, registers and all other documents of whatever nature relating thereto.
(2)All property as aforesaid which have vested in the Central Government under sub section (1) of section 3 shall, by force of such vesting, be freed and discharged from any trust, obligation mortgage, charge, lien and all other encumbrances affecting it, and any attachment, injunction or decree or order of any court or other authority restricting the use of such property in any manner shall be deemed to have been withdrawn.
(3). . . (4). . . (5). . . (6). . .
Section 7 deals with the shares to be issued by the National Textile Corporation for the value of the assets transferred to it by the Central Government.
It reads as follows: 985 "7.
An amount equal to the value of the assets of the textile undertakings transferred to and vested in the National Textile Corporation under sub section (2) of section 3 shall be deemed to be the contribution made by the Central Government to the equity capital of the National Textile Corporation; and for the contribution so made, the National Textile Corporation shall issue (if necessary after amending its memorandum and articles of association) to the Central Government paid up shares, in its equity capital having a face value equal to the amount specified in section 8.
" Section 8 which is material provides as follows: "8.
For the transfer to, and vesting in, the Central Government, under section 3, of the textile undertakings of the Company, and the right, title and interest of the Company in relation to such undertakings, there shall be given by the Central Government to the Company in cash and in the manner specified in Chapter VI, an amount of rupees twenty four crores and thirty two lakhs.
" Section 10 of the Act deals with the management etc.
of the textile undertakings.
Section 12 of the Act deals with the provisions relating to the employees of the textile undertakings.
Section 24 of the Act provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any court, tribunal or other authority.
Section 25 provides for the assumption of liability.
It is the true effect and purport of these sections that requires consideration and adjudication.
It appears to us that section 27 of the Act where the expression "forming part of" is used, would have no bearing on the vesting provisions and its wide language.
The expression "forming part of" according to the learned Solicitor General is merely descriptive of what is actually vested under the vesting provision.
The properties which, on the appointed day, i.e. with effect from 1.4.1985, became part of the taken over properties which might not be dealt with in any manner contrary to the provisions of the Act.
Shri K.K. Venugopal, appearing on behalf of Doypack Systems 986 Private Limited in Transferred Case No. 13 of 1987 submitted that the present case is directly covered by several decisions of this Court.
He referred to the following decisions National Textile Corporation vs Sita Ram Mills, ; ; Minerva Mills vs Union of India, ; ; Goverdhan Das Narasingh Das Daga vs Union of India, ; Vidharba Mills Berar Ltd. vs Union of India, and Fine Knitting Co. Ltd. vs Union of India, It was emphasised that section 3 of the Act provided that in addition to the textile undertaking "the right, title and interest of the company in relation to every such textile undertaking is to vest".
Therefore, it was urged by Shri Venugopal that so applying the five decisions cited earlier, if the shares were held for the benefit of and/or utilised for the textile undertakings they would vest in the Government under the provisions of section 3 of the Act itself.
He emphasised like others that "pertaining to" would mean "in relation to" in the species of properties mentioned in section 4(1) of the Act.
He further submitted that if the amount of compensation declared to be payable to the erstwhile owners of the undertakings acquired, was a test for deciding whether a particular piece of property also stood acquired or not, then it was submitted that it may be open to the erstwhile owners to contend that even what is expressly stated to have been vested in the Government, would not vest in the absence of compensation paid.
That was untenable.
In any event as against the clear words, according to Shri Venugopal, of section 3 and section 4 read with section 2(k), the failure to provide for compensation for three out of the six undertakings would not result in three out of six undertakings being not vested in the Government.
Shri Venugopal submitted that the antecedent computation of value by the executive is wholly irrelevant for determining the intention of Parliament.
Reference was made to Kumari Sunita Ramachandra vs State of Maharashtra and another; , at 704, c to e and Doctor (Mrs.) Sushma Sharma vs State of Rajasthan; , at 263.
Shri Anil B. Diwan on behalf of Mukesh Bhasin, in Suit No. 506 of 1987 (Transferred Case No. 14 of 1987) submitted that the Objects and Reasons of the mover of the Bill are not admissible as aids to construction since it is impossible to contend that the Objects and Reasons in the minds of some officials of the Government before the matter is discussed by the Cabinet, would at all be relevant.
Reference 987 may be made to State of West Bengal vs Union of India, [1964] 1 S.C.R. 371 at 379, 380, 381, 382; The Central Bank of India vs Their Workmen, ; at 217.
It was further submitted that subsequent documents and/or views of the officers of the Government are not admissible as legitimate aids to the construction of a statute.
Reliance placed by the petitioners on the documents at pages 452 456 of Volume II as an aid to the interpretation or construction of sections 3 and 4 of the Act was totally misconceived.
See the observations in Babaji Kondaji Garad vs Nasik Merchants Cooperative Bank Ltd., Nasik and others; , paragraphs 14 and 15 and Dr.(Mrs.) Sushma Sharma and others vs State of Rajasthan and others (supra).
It was, therefore, urged that the material not availed by the Parliament could never affect or influence the collective intention of the Parliament.
The authentic voice is only that of the Parliament.
Reference may be made to the observations in Sanjeev Coke Manufacturing Company vs Bharat Coking Coal Ltd. and another; , at 1029.
It was submitted that the documents which were prepared for the submission to the Cabinet and which related to the inner working of the Government were not admissible and/or legitimate aids to the construction of statute and therefore not relevant in deciding which assets of SCM vested in the Central Government under sections 3 and 4 of the Act.
It was further submitted that etymological and plain meaning of the word "relation" is relation by birth or relation by sacrament like marriage or relation in the form of business connection or dealings.
It was further submitted that an asset or investment which is created from the earnings of the undertakings is clearly related to the undertakings by its inception or birth.
An asset or investment, according to Shri Anil B. Diwan, which is utilised to preserve and/or give vitality to an undertaking is equally related or pertained to the same.
Shri A.K. Ganguli, counsel appearing on behalf of M/s. Doypack Systems Pvt. Ltd. in SLP (Civil) Nos. 4826 and 7045 of 1987 submitted that even assuming (though not admitting) that the expressions "pertaining to" and "in relation to" appearing in sub section (1) of section 4 of the Act have limited or restricted meaning, by the plain language of section 3, which is the vesting provision read with sections 2(k) and 4(1), the shares in question would also vest in the Central Government.
Under section 3 of the Act what vests in the Central Government on the appointed day are: (i) every textile undertaking; and (ii) the right, title and interest of the company in relation to every such textile undertaking.
The meaning, scope and effect of the expression "textile undertaking" appearing in section 3(1) of the Act would 988 have to be understood by a combined reading of sections 2(k) and 4(1) of the Act.
Section 2(k) while defining the expression "textile undertaking", identifies the textile mills concerned while section 4(1), by adoption of deeming provisions, spells out the properties which vest along with the concerned textile mills by reason of their direct nexus with the mills.
The expression "forming part of" appearing in section 27, according to Shri Ganguly, is merely descriptive of the properties already vested in the Central Government under section 3.
Section 1(2) of the Act provided that the provisions of the Act including sections 3 and 4 shall be deemed to have come into force retrospectively with effect from 1.4.1985 and sections 27 and 28 shall come into force at once.
Thus the properties which stood vested in the Central Government with effect from 1.4.1985 already "formed part of" the textile undertakings on the date of the Act when section 27 came into force (i.e. w.e.f. 30.5.1986).
The properties which already stood vested and formed part of the textile undertakings could not be dealt with in any manner other than those permissible under the Act.
Section 27 containing the penalty provisions could, therefore, validly and justifiably be given effect to after it came into force on 30.5.1986 when the Act was enacted.
The meaning of the expression "pertaining to" appearing in the first limb of section 4(1), therefore, cannot be gathered from the language employed in section 27.
Shri Ganguli further submitted that the first part of section 7 provided that the amount equal to the value of the assets of the textile undertakings which is vested under section 3 would be the contribution of Central Government made to the equity capital of the National Textile Corporation.
The second part of section 7 provided that for the contribution so made by the Central Government, National Textile Corporation shall issue to the Government paid up shares in its equity capital having a face value equal to the amount specified in section 8.
If the legislative intention, it was urged by Shri Ganguli, was that the National Textile Corporation shall issue paid up shares (in its equity capital) to the Central Government of the value equal to the value of the assets, which was deemed to be the contribution of the Central Government, then the language of the second part of this section would have been the same as used in the opening words of section 7 itself.
Shri S.N. Kacker elaborated the submissions of the petitioner 989 mentioned hereinbefore and submitted that the shares could not have been intended in view of the facts and circumstances of the case, the language used and the data available to take over by sections 3 and 4 of the Act.
Before we deal with the main question we have to consider the application made by Shri Nariman for production of certain documents.
The production of the documents has been resisted by the learned Attorney General on the ground that these are not relevant and in any event most of these documents are privileged being part of the documents leading to the tendering of the advice by the Cabinet to the President as contemplated by Article 74(2) of the Constitution.
The petitioner in Transferred Case No. 13 of 1987, has sought production of certain documents enumerated at page 82, para 85 of Vol.
IV, which are as follows: (1) Proposal of the Textile Ministry in respect of Nationalisation of the six textile undertakings including the notes and memorandum specially in respect of calculation and determination of assets and liabilities in respect of six textile undertakings of Petitioner No. 2 in the year 1983 84 and the opinion of the Law Department then obtained.
(2) Proposal of the Textile Ministry in respect of nationalisation of the six textile undertakings in the year 1985 86 including all notes and memorandum in respect thereof.
(3) Opinion of Law Department as rendered to the Textile Ministry.
(4) Proposal of the Textile Ministry in respect of the drafting of the Ordinance and the Act by the Legislative Ministry.
(5) Details of properties taken into consideration for the determination of amount under section 8 of the Ordinance/Act.
(6) Proposal of the Textile Ministry in the form of Cabinet Notes for the approval of the Cabinet in the matter of promulgation of Ordinance/framing of the Act, and (7) Notes and Memorandum prepared by the Ministry of Textile/Ministry of law at or before framing of the Ordinance/Act and subsequent thereto relating to the acquisition of the textile undertakings.
990 It was contended that production of these was necessary to establish that the shares were never intended to be taken over and these were never considered as part of the textile undertaking.
It was urged that the shares were not taken into account in computing the figure of compensation amounting to Rs.24.32 crores referred to in section 8 of the Act.
It was submitted that these documents are definitely relevant as they would throw light on the merits of the case.
They would advance the case of the petitioners and destroy, according to the petitioners, the case of the respondent.
It was submitted that sections 7 and 8 of the said Act, were intrinsic aids to construe section 4.
The factual foundation necessary for the argument based on sections 7 and 8 of the said Act, was that the shares etc., were excluded in computing the figures of 24.32 crores.
It was submitted that these documents were required to establish this factual foundation.
The petitioner alleged that shares had been excluded in the computation of compensation and the petitioner had been so informed by the Hon 'ble Minister.
In reply the Central Government asserted that compensation has been computed lumpsum and not itemwise.
According to the petitioner, the stand of the Government that the compensation was computed lumpsum, was not borne out by the documents.
It was, therefore, necessary to seek production of those documents.
It was submitted by Shri Nariman that the submissions of the Solicitor General in so far as these dealt with the balance sheet made it even more important that the Government should be directed to produce these documents.
The calculations made by the petitioner had merely been denied by NTC which had in its possession the books of account as also all balance sheets prior to the balance sheet as on April 1, 1985.
It is wrongly suggested that the calculations are hypothetical.
It was urged by the petitioner that the calculations made by the petitioners were not hypothetical.
The correctness or otherwise of the said figure, according to the petitioners, would be demonstrated from the said documents.
On behalf of the Union of India, the learned Attorney General submitted that records and documents whose production was sought for, were not relevant for deciding the matters of controversy in the instant case.
In our opinion Sections 3 and 4 of the Act interpreted either on their own language or along with sections 7 and 8, are not ambiguous; so documents are not relevant.
It was further urged, that even if to consture the language is not clear and there is need to resort to aids of construction, it is clear that such aids can be either internal or external.
991 Internal aids of construction are definitions, exceptions, explanations, fictions, deeming provisions, headings, marginal notes, preamble, provisos, punctuations, saving clauses, non obstante clauses etc.
The notings in the files of various officials do not fall in the category of internal aids for consideration.
Dictionaries, earlier acts, history of legislation, Parliamentary history, parliamentary proceedings, state of law as it existed when the Act was passed, the mischief sought to be suppressed and the remedy sought to be advanced by the Act are external aids.
Documents which have been required to be produced do not, in our view fall within the category of external aids as indicated.
Having considered the facts and circumstances of the case, we are unable to accept the prayer of the petitioner to direct disclosure and production of the documents sought for.
In our opinion, the language used in section 4 of the Act, is clear enough read with section 3 of the Act.
We have set out the provisions of the said two sections.
Section 3 states that "on the appointed day every textile undertaking and the right, title and interest of the Company in relation to every textile undertaking shall stand transferred to and shall vest in the Central Government".
Section 4 says that "section 3 shall be deemed to include all assets, leaseholds, powers, authorities, privileges and all properties, movable and immovable . pertaining to the textile undertakings and all other rights and interests in or arising out of such property".
Francis Bennion in "Statutory Interpretation 1984 Edition page 526 para 238 states that Hansard reports, and other reports of parliamentary proceedings on the Bill which became the Act in question, are of obvious relevance to its meaning.
They are often of doubtful reliability however.
(emphasis supplied) The documents in question which are sought for do not relate to the enacting history or any past enactment or the present enactment.
The notings made in various Departments at various levels by the officers namely, the Under Secretary, Deputy Secretary, Joint Secretary; Secretary etc., whatever their view might be, is not the view of the Cabinet.
The ultimate decision is taken by the Cabinet.
So the notings cannot and are not guides as to what decision the Cabinet took.
See for example the Task Force report referred to in National Textile Corporation Ltd. vs Sitaram Mills Ltd. & others (supra).
This Task Force Report demonstrated the irrelevancy of the documents summoned to be produced.
The Task Force Report manifested that certain mills were viable.
But from the circumstance under which managements of these mills were taken over, it was clear that the Cabinet had taken the decision contrary to what was contained in the Task Force Report.
But it appears 992 that the decision of the Cabinet was different from the views of the Officers at various levels.
As Bennion has stated at para 261 (page 560 of the same book) that in interpreting an enactment a two stage approach is necessary.
Here there is no real doubt on an informed basis as we shall indicate hereafter about the real meaning of the enactment.
There is therefore no question of resolving the doubt.
The second stage does not arise here.
This Court in Sanjeev Coke Manufacturing Company vs Bharat Coking Coal Ltd. and another (supra) held that no one may speak for the Parliament and Parliament is never before the Court.
After the Parliament has said what it intends to say, only the Court may say what the Parliament meant to say.
None else.
See also in this connection Dr. (Mrs.) Sushma Sharma and others vs State of Rajasthan and others (supra).
The objects and purposes of the person who initiated the Bill are not admissible as aids to construction since it is impossible to contend that such purposes in the minds of some officials of the Government before the matter is discussed by the Cabinet, would at all be relevant.
See in this connection State of West Bengal vs Union of India (supra) where this Court reiterated that the Statement of Objects and Reasons, accompanying when introduced in the Parliament cannot be used to determine the true meaning and effect of the substantive provisions of the statute.
Such statement cannot be used to show that the legislature did not intend to take over any particular property.
See also The Central Bank of India vs Their Workmen (supra).
It has to be reiterated, however that the objects and reasons of the Act should be taken into consideration in interpreting the provisions of the statute in case of doubt.
This is the effect of the decision of this Court in K.P. Verghese vs The Income tax Officer, Ernakulam and another; , , where this Court reiterated that the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill could certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted.
It has been reiterated that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible.
See in this connection the observations of this Court in Chern Taong Shang & anr.
vs Commander S.D. Baijal & Ors., J.T.
The documents now sought for by the petitioner do not fall within this category.
It is neither the object and scheme of the enactment nor the language used therein, that is 993 sought for in the instant case.
It is certainly relevant to know the mischief that was intended to be remedied.
But in the documents in question which the petitioner is seeking no such correlation has been established.
These are, therefore, not relevant.
We reiterate that no officer of the Department can speak for the Parliament even after the Act has been passed.
This Court has to interpret the Act on the basis of informed basis by applying external and internal aids if the language is ambiguous.
In the words of Lord Scarman "We are to be governed not by Parliament 's intentions but by Parliament 's enactments".
See Cross "Statutory Interpretation" 2nd Edition page 22.
Blackstone in his "Commentaries on the Laws of England" (Facsimile of 1st edn.
1765, University of Chicago Press 1979) Vol. 1 at 59 suggests "The fairest and most rational method to interpret the will of the legislator is by exploring his intention at the time when the law was made, by signs most natural and probable.
And these signs are the words, the context, the subject matter, the effect and consequence, or the spirit and reason of the law.
" The documents whose production is sought for are none of these.
So in our opinion these are not relevant.
We must further reiterate that the Members of Parliament had before them only the Bill.
The notings of the various officials in the files were not before the Parliament.
Therefore members could not be attributed with the knowledge of the notings in the files.
Therefore, the notings made by the officials are not relevant.
In this connection reliance may be placed on the principles of interpretation as enunciated by the Federal Court in Auckland Jute Co. Ltd. vs Tulsi Chandra Goswami, at 244.
It is trite saying that the interpreter of the statute must take note of the well known historical facts.
In conventional language the interpreter must put himself in the arm chair of those who were passing the Act i.e. the Members of the Parliament.
It is the collective will of the Parliament with which we are concerned.
See in this connection the observations of the Federal Court in RM.AR.AR.R.M.AR.
Umayhal Achi vs Lakshmi Achi and others, We are therefore, of the opinion that the documents sought for are not relevant for the purpose for which they were sought for.
In this case we are concerned only with the construction of the statute to determine whether the shares vested in the Government or not.
As Lord Reid has said in Black Clawson International Ltd. vs Papierwerke Waldhof Achaffenburg A G; , at 613 "We often say that we are looking for the intention of Parliament, but that is not quite accurate.
We are seeking the meaning of the words which Parliament used.
We are seeking not what Parliament meant but the true meaning of what they said.
" See in this connection the discussion in Cross Statutory Interpretation 2nd Edition, pages 20 30.
994 The next question for consideration is that by assuming that these documents are relevant, whether the Union of India is liable to disclose these documents.
Privilege in respect of these documents has been sought for under Article 74(2) of the Constitution on behalf of the Government by learned Attorney General.
Shri Nariman however, submitted on the authority of the decision of this Court in S.P. Gupta vs Union of India and others, [1982] 2 S.C.R. 365 at page 594 that the documents sought for herein were not privileged.
The context and the nature of the documents sought for in S.P. Gupta 's case (supra) were entirely different.
In this case these documents as we see are part of the preparation of the documents leading to the formation of the advice tendered to the President of India and as such these are privileged under Article 74(2) of the Constitution which provides that the question whether any, and if so what, advice was tendered by Ministers to the President shall not be enquired into in any court.
This Court is precluded from asking for production of these documents.
In S.P. Gupta 's case (supra) the question was not actually what advice was tendered to the President on the appointment of Judges.
The question was whether there was the factum of effective consultation between the relevant constitutional authorities.
In our opinion that is not the problem here.
We are conscious that there is no sacrosanct rule about the immunity from production of documents and the privilege should not be allowed in respect of each and every document.
We reiterate that the claim of immunity and privilege has to be based on public interest.
Learned Attorney General relied on the decision of this Court in the case of State of U.P. vs Raj Narain, ; The principle or ratio of the same is applicable here.
We may however, reiterate that the real damage with which we are concerned would be caused by the publication of the actual documents of the Cabinet for consideration and the minutes recorded in its discussions and its conclusions.
It is well settled that the privilege cannot be waived.
In this connection, learned Attorney General drew our attention to an unreported decision in The Elphinstone Spinning and Weaving Mills Company Ltd. vs Union of India and others, Writ Petition No. 2401 of 1983.
This resulted ultimately in Sitaram Mills 's case (supra).
The Bombay High Court held that the Task Force Report was withheld deliberately as it would support the petitioner 's case.
It is well to remember that in Sitaram Mills 's (supra) this Court reversed the judgment of the Bombay High Court and upheld the take over.
Learned Attorney General submitted that the documents there were not tendered voluntarily.
It is well to remember that it is duty of this Court to prevent disclosure where Article 74(2) is applicable.
We are 995 convinced that the notings of the officials which lead to the Cabinet note leading to the Cabinet decision formed part of the advice tendered to the President as the Act was preceded by an ordinance promulgated by the President.
We respectfully follow the observations in S.P. Gupta and others vs Union of India and others (supra) at pages 607, 608 and 609.
We may refer to the following observations at page 608 of the report: "It is settled law and it was so clearly recognised in Raj Narain 's case (supra) that there may be classes of documents which public interest requires should not be disclosed, no matter what the individual documents in those classes may contain or in other words, the law recognises that there may be classes of documents which in the public interest should be immune from disclosure.
There is one such class of documents which for years has been recognised by the law as entitled in the public interest to be protected against disclosure and that class consists of documents which it is really necessary for the proper functioning of the public service to withhold from disclosure.
The documents falling within this class are granted immunity from disclosure not because of their contents but because of the class to which they belong.
This class includes cabinet minutes, minutes of discussions between heads of departments, high level inter departmental communications and despatches from ambassadors abroad (vide Conway vs Rimmer, [1969] Appeal Cases 910 at pp.
952, 973, 979, 987 and 993 and Reg vs Lewes J.K. Ex parte Home Secretary, [1973] A.C. 388 at 412.
Papers brought into existence for the purpose of preparing a submission to cabinet vide Lanyon Property Ltd. vs Commonwealth, 129 Commonwealth Law Reports 650 and indeed any documents which relate to the framing of government policy at a high level (vide re.
Grosvenor Hotel, London Cabinet papers are, therefore, protected from disclosure not by reason of their contents but because of the class to which they belong.
It appears to us that Cabinet papers also include papers brought into existence for the purpose of preparing submission to the Cabinet.
See Geoffrey Wilson cases and Materials on Constitutional and Administrative Law, 2nd Edition pages 462 to 464.
At page 463 para 187, it was observed: 996 "The real damage with which we are concerned would be caused by the publication of the actual documents of the Cabinet for consideration and the minutes recording its discussions and its conclusions.
Criminal sanctions should apply to the unauthorised communication of these papers.
" See in this Connection State of Bihar vs Kripalu Shankar, ; at page 1559 and also the decision of Bachittar Singh vs State of Punjab [1962] Suppl. 3 S.C.R. 713.
Reference may also be made to the observations of Lord Denning in Air Canada and others vs Secretary of State and another, at 180.
We therefore, reject the claim for production of these documents.
In view of the language used in the relevant provisions, it appears to us that section 3 has two limbs: (i) textile undertakings; and (ii) right, title and interest of the company in relation to every such textile undertaking.
The expression "textile undertaking" has been defined in section 2(k) to mean the six textile undertakings of the company specified therein.
The definition of the said expression in section 2(k) is, however, subject to the opening words of the section which provide, "In this Act, unless the context otherwise requires".
In the context of the expression "textile undertakings" employed in section 3(1) of the Act, section 4(1) provides that the textile undertakings referred to in section 3 shall be deemed to include all assets, rights, leaseholds, powers, authorities and privileges and all property, movable and immovable, including lands, buildings, workshops, stores . investments and book debts pertaining to the textile undertakings and all rights and interests in or arising out of such property as are, immediately before the appointed day, in the ownership, possession, power or control of the company in relation to all six undertakings.
The expressions "pertaining to", "in relation to" and "arising out of", used in the deeming provision, are used in the expansive sense, as per decisions of courts, meanings found in standard 'dictionaries, and the principles of broad and liberal interpretation in consonance with Article 39(b) and (c) of the Constitution.
The words "arising out of" have been used in the sense that it comprises purchase of shares and lands from income arising out of the Kanpur undertaking.
We are of the opinion that the words "pertaining to" and "in relation to" have the same wide meaning and have been used interchangeably for among other reasons, which may include 997 avoidance of repetition of the same phrase in the same clause or sentence, a method followed in good drafting.
The word "pertain" is synonymous with the word "relate", see Corpus Juris Secundum, Volume 17, page 693.
The expression "in relation to" (so also "pertaining to"), is very broad expression which pre supposes another subject matter.
These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context, see State Wakf Board vs Abdul Aziz, A.I.R. 1968 Madras 79, 81 paragraphs 8 and 10, following and approving Nitai Charan Bagchi vs Suresh Chandra Paul, , Shyam Lal vs M. Shayamlal, A.I.R. 1933 All 649 and 76 Corpus Juris Secundum 621.
Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions.
In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term "relate" is also defined as meaning to bring into association or connection with.
It has been clearly mentioned that "relating to" has been held to be equivalent to or synonymous with as to "concerning with" and "pertaining to".
The expression "pertaining to" is an expression of expansion and not of contraction.
As to what an undertaking means, has been clarified in R.C. Cooper vs Union of India, ; at pages 567, 568, 635, where the Act of 1969 was challenged.
It was held that the meaning of the expression "undertaking" is a going concern as distinct from its assets and liabilities.
It was also observed that it covered every corner of property, right, title and interest therein.
This Court rejected one of the grounds of challenge as there was no evidence that the named banks held any assets for any distinct non banking business, which finding gives an idea as to what could have been excluded from the acquisition of the undertaking.
Reading the provisions of section 3(1), section 4(1) and section 2(k) of the Act, each throwing light on the other, it follows that (a) under the first limb of section 3(1) of the Act every textile undertaking; (b) under the second limb of section 3(2) every right, title and interest of the company in relation to every such undertaking, is transferred and vested.
(c) The deeming provision of section 4(1) amplifies and enlarges both the limbs of the vesting section, being section 3(1).
(d) The definition of section is read into these provisions, to give a 998 wider meaning and scope to the vesting provision and to what is transferred or vested.
Sections 7 and 8 of the Act relied upon by the petitioners, being provisions for payment of amounts and for the issue of shares by NTC respectively, will have no bearing on the scope of the vesting provision.
As to what properties have vested cannot proceed on the hypothesis that there is a clear numerical or mathematical link between the quantum of compensation and the items of property vested.
This correlation with regard to such legislation is not available.
In this connection reference may be made to the decision of this Court in Khajamian Wakf Estates etc.
vs State of Madras & another; , at page 796 B E. Section 8 refers to payments of amounts by the Union of India to the company.
It has no bearing either on the vesting section or on section 7 except that the figure of Rs.24 crores 32 lakhs mentioned therein was introduced into section 7.
The provisions of this section are no different from the provisions of the similar sections in the earlier Act of 1974.
For example, under section 8 of the Sick Textile Undertakings Nationalisation Act, 1974 (page 59 of Vol.
X), the amount mentioned is specified in the first schedule as there are a number of companies involved.
This provision cannot be the starting point for investigation as to which amount relates to which property or as a guide to construction.
It appears to us from the Delhi High Court decision (supra) and the decision of this Court in Balkrishan Gupta 's case (supra) as well as the statement of the Minister in December, 1985 that there were legal difficulties, in respect of taking over, under the 1951 IDR Act.
The IDR Act was (a) concerned with the management of scheduled industries in, inter alia, running of factories, where there was no deeming provision in such wide terms; (b) it was concerned with setting up of machinery for imposing controls on industrial undertakings, see Harakchand Ratanchand Banthia and others etc.
vs Union of India and others; , at page 496 F and G. We are further of the opinion that the decision in Harakchand Ratanchand (supra) would not be applicable.
In this case, the Court is concerned with a nationalisation statute.
Even with other independent management statutes, in respect of textile undertakings a series of decisions have upheld the view that the shares vest in the Government.
See National Textile Corporation Ltd. vs Sitaram Mills (supra); 999 Minerva Mills Ltd. and others etc.
vs Union of India and others (supra); Govardhandas Narasinghdas Daga and others vs Union of India and others (supra); Fine Knitting Mills Ltd. & Ors.
vs Union of India & Ors.
(supra) and Vidharbha Mills Berar Ltd. vs Union of India (supra).
The above provide the informed basis on which we make the construction of sections 3 and 4 of the Act.
The expression "and all other rights and interests in or arising out of such property, as were immediately before the appointed day, in the ownership, possession, power or control of the company in relation to the said undertakings", appearing in sub section (1) of section 4 of the Act indicates that the shares which have been purchased from out of the funds of the textile undertakings and which have been held for the benefit of the said textile undertakings, would come within the scope of section 4 of the Act and thus would also vest in the Central Government under section 3.
The origin of these shares and their connection with the textile undertakings have been fully corroborated.
The textile business is the only business of Swadeshi Cotton Mills.
There is inter connection and inter relation between all the six undertakings.
Investments in Swadeshi Polytex Limited from the funds of Kanpur undertaking have always been made.
Investments in Swadeshi Mining and Manufacturing Company Ltd. were always made from the funds of the kanpur undertaking.
Assets/investments held and used for the benefit of the textile business of SCM, were carried on in its textile undertakings.
The words in the statute must, prima facie, be given their ordinary meaning.
Where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail unless there are some strong and obvious reasons to the contrary.
Nothing has been shown to warrant that literal construction should not be given effect to.
See Chandavarkar S.R. Rao vs Asha Lata, ; at page 476, approving 44 Halsbury 's Laws of England, 4th Ed.
paragraph 856 at page 552, Nokes vs Doncaster Amalgamated Colliery Limited, [1940] Appeal Cases 1014 at 1022.
It must be emphasised that interpretation must be in consonance with the Directive Principles of State Policy in Article 39 (b) and (c) of the Constitution.
It has to be reiterated that the object of interpretation of a statute is to discover the intention of the Parliament as expressed in the Act.
The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context.
That intention, and therefore the meaning 1000 of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand.
In the present case, the words used represent the real intention of the Parliament as we have found not only from the clear words used but also from the very purpose of the vesting of the shares.
If we bear in mind the fact that these shares were acquired from out of the investments made by these two companies and furthermore that the assets of the company as such minus the shares were negative and further the Act in question was passed to give effect to the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution, we are left with no doubt that the shares vested in the Central Government by operation of sections 3 and 4 the Act.
See in this connection the observations of Halsbury 's Laws of England, 4th Edition, Volume 44, paragraph 856 at page 522 and the cases noted therein.
There is no exact correlation between the figure of capital reserve and the figure of investments.
That, in our opinion cannot be.
These can never be exactly equal.
The submission of the petitioner fails to take into account the fact that the undertakings other than the kanpur undertaking, also have capital reserve, even though there is no allegation that these were excluded assets in respect of other undertakings and there were no figures of investments therein.
The covering letter for these documents, page 408 of Volume II, itself stated that the provisional balance sheet shows investments which included these shares as part of assets.
With regard to the figure of Rs. 11 lakhs taken in the calculation filed by the petitioner, we find that the calculations filed by the petitioner were not supportable.
Contemporanea Expositio, is a well settled principle or doctrine which applies only to the construction of ambiguous language in old statutes.
Reliance may be placed in this connection on Maxwell 13th Ed.
page 269.
It is not applicable to modern statutes.
Reference may be made to G.P. Singh, Principles of Statutory Interpretation, 3rd Edn.
pages 238 and 239.
As noted in Maxwell on The Interpretation of Statutes, 12th Edition at page 269 that the leading modern case on contemporanea expositio is the case of Campbell College, Belfast vs Commissioner of Valuation for Northern Ireland, in which House of Lords has made it clear that the doctrine is to be applied only to the construction of ambiguous language in the very old statutes.
It is therefore well to remember what Lord Watson said in Clyde Navigation Trustees vs Laird, [1983] 8 A.C. 658 that contemporanea expositio could have no application to a modern Act.
We, therefore, reject the attempt on the part of the petitioners to lead us to 1001 this forbidden track by referring to various extraneous matters which we have indicated before.
Furthermore those external aids sought before us do not support the petitioners ' approach to this question at all.
It appears that the shares held in SPL themselves were the subject matter of both pledge and attachment to secure loans from the U.P. State Government of about Rs.66 lacs for payment of wages to workers of the Kanpur undertaking and Rs.95 lacs being electricity dues of the Kanpur undertaking owing to the U.P. State Electricity Board.
From all these, the acceptance of the petitioner 's case, would mean that the State would pump in Rs.15 crores of public money to release the shares from its liabilities and thereafter hand over the shares free from such liability back to the company when the net worth of the company at the time of take over of management was negative and in the teeth of the present financial liabilities built up by the company the shares would inevitably have sold in discharge of its liabilities and in any event the shares stood charged with the very liabilities which related to the undertakings of the company which were taken over by the Government.
It appears to us that sections 3 and 4 of the Act evolve a legislative policy and set out the parameters within which it has to be implemented.
We cannot find that there was any special intention to exclude the shares in this case as seen from the existence of at least four other Acquisition Acts which used identical phraseology in sections 3 and 4 and in the other sections as well.
Reference was made to the Aluminium Corporation of India Limited (Acquisition and Transfer of Aluminium Undertakings) Act, 1984, the Amritsar Oil Works (Acquisition and Transfer of Undertakings) Act, 1982, the Britannia Engineering Company Limited (Mohameh Unit) and the Arthur Butler and Company (Muzaffarpore) Limited (Acquisition and Transfer of Undertakings) Act, 1978 and the Ganesh Flour Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1984.
In the present case we are satisfied that the shares in question were held and utilised for the benefit of the undertakings for the reasons that (a) the shares in Swadeshi Polytex Limited were acquired from the income of the kanpur Unit.
Reference may be made to page 23 of Compilation D III, (b) the shares held in Swadeshi Mining and Manufacturing Company were acquired in 1955.
Originally there were four companies and their acquisition has been explained fully in the Compilation D III with index, (c) the shares held in SPL were pledged 1002 or attached for running the Kanpur undertaking, for payment of ESI and Provident Fund dues for the workers of the Kanpur undertaking, for wages and for payment of electricity dues of the Kanpur undertaking, (d) the shares held in SMMC were pledged for raising monies and loans of Rs. 150 lakhs from the Punjab National Bank for running the Kanpur undertaking.
These loans fall in category II of Part I of the Schedule which liabilities have been taken over by the Government, (e) the shares held in SPL were offered for sale by SCM from time to time and to utilise the sale proceeds thereof by ploughing them back into the textile business for reviving the textile undertakings acquired under the Act.
It appears to us that the expression "forming part of" appearing in section 27 cannot be so read with section 4(1) as would have the effect of restricting or cutting down the scope and ambit of the vesting provisions in section 3(1).
The expression "pertaining to" does not mean "forming part of".
Even assuming that the expression "pertaining to" appearing in the first limb of section 4(1) means "forming part of", it would mean that only such assets which have a direct nexus with the textile mills as would fall under the first limb of section 4(1).
The shares in question would still vest in the Central Government under the second limb of section 4(1) of the Act since the shares were bought out of the income of the textile mills and were held by the company in relation to such mills.
The shares would also fall in the second limb of section 3(1) being right and title of the company in relation to the textile mills.
On the construction of sections 3 and 4 we have come to the conclusion that the shares vest in the Central Government even if we read sections 3 and 4 in conjunction with sections 7 and 8 of the Act on the well settled principles which we have reiterated before.
The expression 'in relation to ' has been interpreted to be the words of widest amplitude.
See National Textile Corporation Ltd. and others vs Sitaram Mills Ltd. (supra).
Section 4 appears to us to be an expanding section.
It introduces a deeming provision.
Deeming provision is intended to enlarge the meaning of a particular word or to include matters which otherwise may or may not fall within the main provisions.
It is well settled that the word 'includes ' is an inclusive definition and expands the meaning.
See The Corporation of the City of Nagpur vs Its Employees, ; and Vasudev Ramchandra Shelat vs Pranlal Javanand Thakarand others, [1975] 1 S.C.R. 534.
The words 'all other rights and interests ' are words of widest amplitude.
Section 4 also uses the words "ownership, possession, power or control of the Company 1003 in relation to the said undertakings".
The words 'pertaining to ' are not restrictive as mentioned hereinbefore.
Section 8 provides for payment of compensation in lumpsum and the transfer and vesting of whatever is comprised in section 3.
As section 4 expands the scope of section 3, the compensation mentioned in section 8 is for the property mentioned in section 3 read with section 4.
The compensation provided in section 8 is not calculated as a total of the value of various individual assets in the Act.
It is a lumpsum compensation.
See in this connection the principles enunciated by this Court in Khajamian Wakf Estates etc.
vs State of Madras and another (supra).
There, it was held that even if it was assumed that no compensation was provided for particular item, the acquisition of the 'inam ' is valid.
In the instant case section 8 provides for compensation to be paid to the undertakings as a whole and not separately for each of the interests of the company.
Therefore, it cannot be said that no compensation was provided for the acquisition of the undertaking as a whole.
Section 7 of the Act, in our opinion, neither controls sections 3 and 4 of the Act nor creates any ambiguity.
It was highlighted before us and in our opinion rightly that this sum of Rs.24.32 crores paid by way of compensation comes out of the public exchequer.
The paid up shares in its equity capital can necessarily have a face value only of the amounts so paid, irrespective of whatever may be contended to be the value of the assets and irrespective of whether any asset or property in relation to the undertakings, was taken into account.
After providing for compensation of Rs.24.32 crores to be paid to the Commissioner for payments to discharge part I liabilities, Government has to undertake an additional 15 crores at least for discharging those liabilities.
To leave a company, the net wealth of which is negative at the time of take over of the management, with the shares held by it as investment in other company, in our opinion, is not only to defeat the principles of Articles 39(b) and (c) of the Constitution but it will permit the company to reap the fruits of its mismanagement.
That would be an absurd situation.
It has to be borne in mind that the net wealth of the company at the time of take over, was negative, hence sections 3 and 4 can be meaningfully read if all the assets including the shares are considered to be taken over by the acquisition.
That is the only irresistible conclusion that follows from the construction of the documents and the history of this Act.
We have to bear in mind the Preamble of the Act which expressly recites that it was to ensure the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution.
The Act must be so read that it further ensures such meaning and 1004 secures the ownership and control of the material resources to the community to subserve the common good to see that the operation of economic system does not result in injustice.
We therefore, reiterate that the shares vested in the Central Government.
Accordingly the shares in question are vested in NTC and it has right over the said 34 per cent of the shareholdings.
In the aforesaid view of the matter we hold that the 10,00,000 shares in Swadeshi Polytex Limited and 17,18,344 shares in Swadeshi Mining and Manufacturing Company Limited held by the Swadeshi Cotton Mills vested in the Central Government under sections 3 and 4 of the Act.
We are further of the opinion that in view of the amplitude of the language used, the immovable properties, namely, the Bungalow No. 1 and the Administrative Block, Civil Lines, Kanpur have also vested in NTC.
In that view of the matter in Transferred Case No. 13 of 1987, we dismiss the Writ Petition No. 2214 of 1987.
All interim orders in the said Writ Petition will stand vacated.
This will dispose of the various other SLPs and CMPs connected with the Lucknow Writ Petition being SLP (Civil) No. 4826 of 1987 filed by Doypack Systems Pvt. Ltd., against the order dated 6th April, 1987, SLP(Civil) No. 5240 of 1987 filed by NTC against the same order of 6th April, 1987 in the Lucknow Bench and the order dated 6th April, 1987 in CMP No. 4555(W) of 1987 in the Lucknow Bench of the Allahabad High Court.
CMPs Nos. 16918 and 16919 of 1987 being CMPs in SLP No. 4826 of 1987 will stand disposed of in the above light.
In Transferred Case No. 14 of 1987 in Suit No. 506 of 1987, we hold that 10 lakhs and 17 lakhs equity shares mentioned hereinbefore and the Swadeshi House at Kanpur and all the rights, title and interest attached therewith relate to the textile undertaking of defendant No. 3 and they vest in NTC with effect from 1st of April, 1985 and defendant Nos. 3 and 4 are restrained by a decree of permanent injunction from dealing with them in any manner whatsoever.
Defendant No.2 is restrained by permanent injunction from recognising defendant Nos. 3 and 4 as owners of the aforesaid shares and the Swadeshi House.
Defendant No.2 'is directed to enter the name of defendant No. 1 namely, NTC in its register of members and to treat the said 1005 defendant No. 1 as its shareholder instead of defendant Nos. 3 and 4 in respect of the shares of defendant No. 2 held by them.
In view of the provisions of law under Section 108 of the as there was transmission of shares by operation of law, rectification is not necessary.
See in this connection Palmer 's Company Law, 24th Ed.
(1987) page 608.
See also in this connection Sahadeo Lal Agarwala and another vs The New Darjeeling Union Tea Co. Ltd. and others, A.I.R. 1952 Cal.
58 and Unity Company Pvt. Ltd. vs Diamond Sugar Mills and others, A.I.R. 1971 Cal.
Civil Appeals Nos.
577 to 579 of 1987 stand disposed of in the above terms and we direct that the 17th annual general meeting be held in accordance with law after giving proper notice under the Chairmanship of Shri Jaswant Singh.
CMP No. 12760 of 1987 in Civil Appeal No. 577 of 1987, shall stand disposed of in terms of the orders in Transferred Case No. 14 of 1987 and it is directed that the Chairman should act in accordance with the aforesaid decision and NTC should be considered to be entitled to vote.
CMP No. 16887 of 1987 is rejected, on the grounds indicated in the judgment.
CMP No. 16888 of 1987 is an application by Doypack Systems Ltd. to be impleaded as a party respondent in Transferred Case No. 13 of 1987.
Doypack Systems has already been permitted to argue and has been heard as a party.
No further order is necessary.
CMP No. 16889 of 1987 is allowed and delay condoned.
CMP No. 17018 of 1987 is allowed.
CMP No. 18268 of 1987 is disposed of by directing that no further documents need be inspected.
In view of the orders, the other CMPs are no longer necessary to be disposed of.
We direct that irrespective of any order passed by any court the 17th annual general meeting should be held in accordance with law to be presided over by Shri Jaswant Singh recognising NTC as the rightful owner of the disputed shares.
In all these proceedings National Textile Corporation as well as Union of India wherever they are parties herein will be entitled to their costs from their respective opposite parties.
The other parties will pay and bear their own costs in these matters.
|
% What fell for consideration in all these matters, viz., (i) SLPs.
(civil) Nos. 4826 and 7045 of 1987, (ii) SLP (civil) No. 5240 of 1987, (iii) C.M.Ps.
Nos. 12029 31/87 (in CAs Nos.
577 79 of 1987), (iv) C.M.Ps.
16635 and 16918/87 (in S.L.P. (c) No. 4826/87) and (v) Transferred Cases Nos. 13 and 14 of 1987 (with CMPs.
16887 89 and 17018/87), was a common question of law whether equity shares in two companies, i.e. 10,00,000 shares in Swadeshi Polytex Ltd. and 17,18,344 shares in Swadeshi Mining and Manufacturing Company Ltd., held by the Swadeshi Cotton Mills, vested in the Central Government under section 3 of the Swadeshi Cotton Mills Company Ltd. (Acquisition and Transfer of Undertakings) Act, 1986.
The other subsidiary question was whether the immovable properties, namely, bungalow No. 1 and Administrative Block, Civil Lines, Kanpur, had also vested in the government.
There were six original proceedings initiated by various parties which gave rise to these civil appeals, special leave petitions and transferred cases before this Court.
These were: On 18th February, 1987, a suit was filed before the Delhi High Court by one Naresh Kumar Barti against Dr. Raja Ram Jaipuria, Swadeshi Polytex and others, for an injunction restraining the company from holding the 17th annual general meeting on the ground that 34% shares in the Swadeshi Polytex vested in the National Textile Corporation (N.T.C.) in view of sections 3 and 4 of the Act.
In the suit, an application was also filed praying that in the event of the annual general meeting of the company being allowed to be held, an independent Chairman should be appointed to conduct the meeting.
The High Court 963 refused to pass any order (in view of an order already passed by the Allahabad High Court).
Against this order of the Delhi High Court, two special leave petitions were filed in this Court one by Doypack Systems Pvt.
Ltd. (defendant No. 10 in the Delhi Suit), which came to registered as Civil Appeal No. 577 of 1987 after the grant of special leave, and the other, by Naresh Kumar Barti, the plaintiff in the Delhi Suit, which came to be registered as Civil Appeal No. 578 of 1987 after the grant of special leave.
On 24th February, 1987, one Bari Prasad Aggarwal filed a suit in the court of the Third Additional Civil Judge, Kanpur praying inter alia that Shri Raja Ram Jaipuria should not preside over the 17th annual general meeting of the company.
The application for an interim injunction filed in the suit was dismissed.
In the appeal preferred by the plaintiff before the Allahabad High Court, an order was passed by the High Court on 2nd March, 1987, appointing Shri M.P. Wadhawan as the Chairman of the said annual general meeting.
Against this order dated 2nd March, 1987, passed by the Allahabad High Court M/s. Doypack System Pvt. Ltd., preferred a special leave petition in this Court, which after the grant of leave, was registered as Civil Appeal No. 577 of 1987.
The three special leave petitions were heard together as Civil Appeals Nos. 577, 578 and 579 of 1987 and disposed of by this Court by a common order on 6th March, 1987, appointing Shri Jaswant Singh as the Chairman of the said annual general meeting.
On 26th February, 1987, another suit Suit No. 506 of 1987 was filed in the Delhi High Court by Mukesh Bhasin for a declaration that Swadeshi Cotton and Swadeshi Mining had no right in respect of 34% of the share holdings in Swadeshi Polytex and that the said shares were vested in the N.T.C. by virtue of the said Act.
By order dated 9th March, 1987, the High Court disposed of that application and granted injunction restraining defendants Nos. 3 and 4 in that suit from exercising any right whatsoever attached to the 34% shares of defendant No. 2 held by them and particularly any voting right in the annual general meeting scheduled to be held on the 9th March, 1987, till the decision of the suit.
This order was brought to the notice of this Court by C.M.P. forming part of the Civil Appeals Nos.
577 579 of 1987.
On 9th March, 1987, on that C.M.P. this Court passed an order directing that NTC, Swadeshi Cotton and Swadeshi Mining, all shall be entitled to vote at the annual general meeting and the question as to who were the rightful voters would be decided by the Chairman of the meeting, etc.
This was the Transferred Case No. 14 of 1987.
964 One Mukesh Jasmani, a shareholder in Swadeshi Polytex filed a writ petition in the Allahabad High Court.
The High Court by its order dt.
7th March, 1987, dismissed that writ petition, observing that Swadeshi Cotton and Swadeshi Mining would be entitled to vote at the 17th annual general meeting in respect of their shares which, according to N.T.C., had vested in them.
Against this order, Doypack Systems preferred the Special Leave Petition (civil) No. 3112 of 1987.
This Court passed orders on this petition, directing that the meeting would be held under the chairmanship of Shri Jaswant Singh notwithstanding any order made by any Court.
This Court also vacated the operative portion of the directions contained in the order dated 7th March, 1987 of the Allahabad High Court.
On 6th April, 1987, M/s. Swadeshi Mining and Manufacturing Company filed a civil writ petition Writ Petition No. 2214 of 1987 in the Allahabad High Court (Lucknow Bench) for stay of the operation of the letters dated 24/30 March, 1987, addressed by NTC to Swadeshi Mining and Manufacturing Company and Swadeshi Cotton Mills Company Limited, calling for an Extraordinary General Meeting of the Shareholders for removal of the Directors of Swadeshi Mining and Manufacturing Company Ltd. The High Court passed an order on the 6th April, 1987, staying the operation of the said letters.
Against that order, M/s. Doypack Systems Pvt.
Ltd. filed Special Leave Petition No. 4826 of 1987 and NTC also filed a Special Leave Petition No. 5240 of 1987 in this Court.
By an order dated 5th May, 1987, this Court directed that Suit No. 506 of 1987 in the Delhi High Court and the Writ Petition No. 2214 of 1987 in the Allahabad High Court be transferred to this Court, which were registered in this Court as Transferred cases Nos.
14 and 13 of 1987 respectively.
NTC filed a civil suit in the District Court Kanpur seeking declaration of its title in respect of the shrubbery property in Kanpur.
The court refused any interlocutory injunction in the suit against which an appeal was preferred before the High Court of Allahabad and the same was dismissed.
Consequently, NTC filed a Special Leave Petition No. 7045 of 1987 in this Court.
Disposing of the matters, the Court, ^ HELD: Swadeshi Mining and Manufacturing Co. Ltd. and Others submitted that the shares in question did not vest in the Central Government.
[976B] 965 By the Act Swadeshi Cotton Mills Company Ltd. (Acquisition and Transfer of Undertakings) Act, 1986 on the appointed day "every textile undertaking" and the "right, title and interest of the company in relation to every textile mill of such textile undertakings" were transferred to and vested in the Central Government and such textile undertakings would be deemed to include "all assets".
In the context of this provision, the reliance on the decision of this Court in Balkrishnan Gupta and Others vs Swadeshi Polytex Ltd. and Others, ; , was not appropriate.
[978D E] It appears from the written statement filed by NTC on 8th February, 1987, in the suit filed by one G.G. Bakshi in Ghaziabad Court, it was claimed that NTC was entitled to take over company 's shares and investments.
On 24/30th March, 1987, NTC issued notice to the petitioners 1 and 2 stating that they were entitled to shares.
It was urged by Shri Nariman, counsel for Swadeshi Mining and Manufacturing Co. Ltd. & Ors., that this belated assertion indicated that the shares were not intended to be taken over.
The Court was unable to accept this suggestion or to draw that inference.
It did not logically follow.
[979G H; 980A] Before dealing with the main question, the Court considered an application made by Shri Nariman for the production of certain documents.
The petitioner in Transferred Case No. 13 of 1987 had sought production of the documents.
It was contended inter alia that the production of those documents was necessary to establish that the shares were never intended to be taken over and these were never considered as part of the textile undertaking, and that the documents were definitely relevant as they would throw light on the merits of the case.
The production of the documents was resisted by the Attorney General on behalf of the Union of India on the ground that the documents were not relevant and in any event most of them were privileged being part of the documents leading to the tendering of the advice by the Cabinet to the President, as contemplated by Article 74(2) of the Constitution.
[989B, C; 990A] Having considered the facts and circumstances of the case as well as the decisions of this Court in a number of cases, the Court was of the opinion that the documents in question were not relevant, and also that the Cabinet papers are protected from disclosure not by reason of their contents but because of the class to which they belong; the Cabinet papers also include papers brought into existence for the purpose of preparing submission to the Cabinet, and it is the duty of this Court to 966 prevent disclosure where Article 74(2) is applicable.
The Court was unable to accept the prayer of the petitioner to direct disclosures and production of the documents sought for.
[993F G; 994H] Coming to the main question involved, reading the provisions of section 3(1), section 4(1) and section 2(k) of the Act, each throwing light on the other, it follows that (a) under the first limb of section 3(1) of the Act, every textile undertaking; (b) under the second limb of section 3(2), every right, title and interest of the company in relation to every such undertaking, is transferred and vested, (c) the deeming provision of section 4(1) amplifies and enlarges both the limbs of the vesting section, being section 3(1), (d) the definition of the section is read into these provisions, to give a wider meaning and scope to the vesting provision and to what is transferred or vested.
[997G H; 998A] Sections 7 and 8 of the Act relied upon by the petitioners, being provisions for payment of amounts and for the issue of shares by NTC respectively, will have no bearing on the scope of the vesting provision.
As to what properties have vested cannot proceed on the hypothesis that there is a clear numerical or mathematical link between the quantum of compensation and the items of property vested.
This correlation with regard to such legislation is not available.
[998B] Section 8 refers to the payments of the amounts by Union of India to the company.
It has no bearing either on the vesting section or on section 7 except that the figure of Rs.24 crores 32 lakhs was introduced into section 7.
[998C D] In this case, a nationalisation statute is concerned.
Even with other independent management statutes, in respect of textile undertakings a series of decisions have upheld the view that the shares vest in the Government.
See National Textile Corporation Ltd. vs Sitaram Mills, [1986] Supp.
S.C.C. 117, Minerva Mills vs Union of India, ; , Goverdhan Das Narasingh Das Daga vs Union of India, , Vidharba Mills Berar Ltd. vs Union of India, and Fine Knitting Co. Ltd. vs Union of India, The above provide the informed basis on which the Court makes construction of sections 3 and 4 of the Act.
[998G H; 999A B] The expressions "and all other rights and interest in or arising out of such property, as were immediately before the appointed day, in the ownership, possession, power or control of the company in relation to the said undertakings", appearing in sub section (1) of section 4 of the 967 Act indicates that the shares which have been purchased out of the funds of the textile undertakings and which have been held for the benefit of the said textile undertakings, would come within the scope of section 4 of the Act and thus would also vest in the Central Government under section 3.
The origin of these shares and their connection with the textile undertakings had been fully corroborated.
The textile business was the only business of the Swadeshi Cotton Mills.
There was inter connection and inter relation between all the six undertakings.
Investments in Swadeshi Polytex Limited from the funds of Kanpur undertaking were always made.
Investments in Swadeshi Mining and Manufacturing Company Ltd. were always made from the funds of the Kanpur undertaking.
Assets/investments held and used for the benefit of the textile business of SCM were carried on in its textile undertakings.
[999B E] The words in the statute must Prima facie be given their ordinary meaning.
Where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail unless there are some strong and obvious reasons to the contrary.
Nothing was shown to warrant that literal construction should not be given effect to.
See Chandavarkar S.R. Rao vs Asha Lata, ; at 476, approving 44 Halsbury 's Laws of England, 4th ed.
paragraph 856, p. 552, Nokes vs Doncaster Amalgamated Colliery Ltd., [1940] Appeal Cases 1014 at 1022.
It must be emphasised that interpretation must be in consonance with the Directive Principles of the State Policy in Articles 39(b) and (c) of the Constitution.[999E G] The object of interpretation of a statute is to discover the intention of the Parliament as expressed in the Act.
The dominant purpose in constructing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context.
That intention and, therefore the meaning of the statute are particularly to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand.
In the present case, the words used represented the real intention of the Parliament as the Court found not only from the clear words used but also from the very purpose of the vesting of the shares.
If the fact is borne in mind that these shares were acquired from out of the investments made by these two companies and furthermore that the assets of the company as such minus the shares were negative and further the Act in question was passed to give effect to the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution, no doubt was left that the shares vested in the Central Government by operation of sections 3 and 4 of the 968 Act.
See in this connection, the observations of Halsbury 's Laws of England, 4th Edition, Volume 44, paragraph 856, p. 522 and the cases noted therein.
[999G H; 1000A C] There is no exact correlation between the figure of capital reserve and the figure of investments.
That could not be.
These could never be equal.
The submission of the petitioners failed to take into account the fact the undertakings, other than the Kanpur undertaking, also had capital reserve, even though there was no obligation that these were excluded assets in respect of other undertakings and there were no figures of investments therein.
[1000D E] Contemporanea Expositio is a well settled principle or doctrine which applies only to the construction of ambiguous language in old statutes.
Reliance might be placed in this connection on Maxwell, 13th Ed. page 269.
It is not applicable to modern statutes.
Reference may be made to G.P. Singh, Principles of Statutory Interpretation, 3rd Ed. pages 238,239.
The leading case on Contemporanea expositio is Comppell College Belfast vs Commissioner of Valuation for Northern Ireland, , in which House of Lords made it clear that the doctrine is to be applied only to the construction of ambiguous language in the very old statutes.
Lord Watson said in Clyde Navigation Trustees vs Laird, [1983] 8 A.C. 658 that Contemporanea expositio could have no application to a modern Act.
The Court, therefore, rejected the attempt of the petitioners to lead the Court to this forbidden track by referring to various extraneous matters.
Furthermore, those external aids sought before the Court did not support the petitioners ' approach to this question at all.
[1000F H; 1001A] Sections 3 and 4 of the Act evolve a legislative policy and set out the parameters within which it has to be implemented.
The Court could not find that there was any special intention to exclude the shares in this case, as seen from the existence of at least four other Acquisition Acts which used identical phraseology in sections 3 and 4 and the other sections as well Aluminium Corporation of India Ltd. (Acquisition and Transfer of Aluminium Undertakings) Act, 1984, Amritsar Oil Works (Acquisition and Transfer of Undertakings) Act, 1982, Britannia Engineering Company (Mohmeh Unit) and the Arthur Butler and Company (Muzaffarpore) Ltd. (Acquisition and Transfer of Undertakings) Act, 1978, and the Ganesh Flour Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1984.
[1001E F] 969 It appeared to the Court that the expression "forming part of" appearing in section 27 could not be so read with section 4(1) as would have the effect of restricting or cutting down the scope and ambit of the vesting provisions in section 3(1).
The expression "pertaining to" did not mean "forming part of".
Even assuming that the expression "pertaining to" appearing in the first limb of section 4(1) means "forming part of", it would mean that only such assets as had a direct nexus with the textile mills, would fall under the first limb of section 4(1).
The shares in question would still vest in the Central Government under the second limb of section 4(1) of the Act since the shares were bought out of the income of the textile mills and were held by the company in relation to such mills.
The shares would also fall in the second limb of section 3(1) being right and title of the company in relation to the textile mills.[1002C E] On the construction of sections 3 and 4, the Court came to the conclusion that the shares vested in the Central Government even if sections 3 and 4 were read in conjunction with sections 7 and 8 of the Act on the well settled principles.
The expression 'in relation to ' has been interpreted to be words of the widest amplitude.
See National Textile Corporation Ltd. and Ors.
vs Sitaram Mills Ltd. (supra).
Section 4 appears to be an expanding section.
It introduces a deeming provision, which is intended to enlarge the meaning of a particular word or include matters which otherwise may or may not fall within the main provisions.
It is well settled that the word 'includes ' is an inclusive definition and expands the meaning.
[1002F G] To leave a company, the net wealth of which was negative at the time of take over of the management, with the shares held by it as investment in the other company, was, in the Court 's opinion, not only to defeat the principles of Articles 39(b) and (c) of the Constitution, but it would permit the company to reap the fruits of its mismanagement.
That would be an absurd situation.
It had to be borne in mind that the net wealth of the company at the time of take over was negative; hence sections 3 and 4 could be meaningfully read if all the assets including the shares were considered to be taken over by the acquisition.
That was the only irresistible conclusion that followed from the construction of the documents and the history of the Act, which expressly recites that it was to ensure the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution.
The Act must be so read that it further ensures such meaning and secures the ownership and control of the material resources to the community to subserve the common good to see that the operation of the economic system does not result in injustice.
[1003F H; 1004A] 970 The shares vested in the Central Government.
Accordingly, the shares in question were vested in the N.T.C. and it had right over the said 34 per cent of the share holdings.
[1004B] The 10,00,000 shares in the Swadeshi Polytex Ltd. and 17,18,344 in the Swadeshi Mining and Manufacturing Company Ltd. held by the Swadeshi Cotton Mills vested in the Central Government under sections 3 and 4 of the Act.
[1004B C] In view of the amplitude of the language used, the immovable properties, namely, the Bungalow No. 1 and the Administrative Block, Civil Lines, Kanpur, also vested in the NTC.
[1004C D] In that view of the matter, in Transferred Case No. 13 of 1987, the Writ Petition No. 2214 of 1987 was dismissed.
All interim orders were vacated.
This would dispose of the various other SLPs and CMPs connected with the Lucknow writ petition, being SLP (Civil) No. 4826 of 1987 filed by Doypack Systems Pvt. Ltd., SLP (Civil) No. 5240 of 1987 filed by NTC.
CMPs 16918 and 16919 of 1987 in SLP No. 4826 of 1987 would stand disposed of in the above light.
[1004D F] In the Transferred Case No. 14 of 1987 (in Suit No. 506 of 1987), the Court held that 10 lakhs and 17 lakhs equity shares and the Swadeshi House at Kanpur and all the rights, title and interest attached therewith, related to the textile undertaking of defendant No. 3 and they vested in NTC with effect from 1st April, 1985, and defendants Nos. 3 and 4 were restrained by a decree of permanent injunction from dealing with them in any manner whatsoever.
Defendant No. 2 was restrained by permanent injunction from recognising defendants Nos. 3 and 4 as owners of the aforesaid shares and the Swadeshi House.
[1004F G] Defendant No. 2 was directed to enter the name of defendant No. 1, namely, NTC in its register of members and to treat the said defendant No. 1 as its share holder instead of defendants Nos. 3 and 4 in respect of the shares of defendant No. 2 held by them.
In view of the provisions of law under section 108 of the Companies Act, as there was transmission of shares by operation of law, rectification was not necessary.[1004H; 1005A B] Civil Appeals Nos.
577 to 579 of 1987 were disposed of in the above terms and it was directed that the 17th annual general meeting be held in accordance with law after giving proper notice under the 971 Chairmanship of Shri Jaswant Singh.
[1005C] CMPs Nos.
12760 of 1987 in Civil Appeal No. 577 of 1987 would stand disposed of in terms of the orders in the Transferred Case No. 14 of 1987 and it was directed that the Chairman should act in accordance with the aforesaid decision and NTC should be considered to be entitled to vote.
CMP 16887 of 1987 was rejected.
[1005D] CMP 16888 of 1987 was an application by Doypack Systems Ltd. to be impleaded as a party respondent in the Transferred Case No. 13 of 1987.
Doypack Systems was permitted to argue and was heard as a party.
No further order was necessary.
[1005E] CMPs Nos. 16889 and 17018 of 1987 were allowed.
CMP No. 18268 of 1987 was disposed of with the direction that no further documents needed to be inspected.
In view of the orders, the other CMPs were no longer necessary to be disposed of.
[1005F] Irrespective of any order passed by any court, the 17th annual general meeting should be held in accordance with law, to be presided over by Shri Jaswant Singh, recognising NTC as the rightful owner of the disputed shares.
[1005G] Balkrishan Gupta & Ors.
vs Swadeshi Polytex Ltd. and Ors., ; ; Swadeshi Cotton Mills vs Union of India, ; ; National Textile Corporation vs Sita Ram Mills; , ; Minerva Mills.
vs Union of India; , ; Goverdhan Das Narasingh Das Daga vs Union of India, ; ; Vidharba Mills Berar Ltd. vs Union of India, ; Kumari Sunita Ramachandra vs State of Maharashtra and another; , at 704, c to e; Doctor (Mrs.) Sushma Sharma vs State of Rajasthan, ; at 263; Fine Knitting Co. Ltd. vs Union of India, ; State of West Bengal vs Union of India, [1964] 1 SCR 371 at 379, 380, 381 and 382; The Central Bank of India vs Their Workmen, ; at 217; Babaji Kondaji Garad vs Nasik Merchants Co_operative Bank Ltd., Nasik and Others, ; , Paragraphs 14 and 15; Sanjeev Coke Manufacturing Company vs Bharat Coking Coal Ltd. & another; , at 1029; K.P. Verghese vs The Income tax Officer, Ernakulam and another; , ; Chern Taong Shang & Another, etc. etc.
vs Commander S.D. Baijal & Ors., J.T. ; Auckland Jute Co. Ltd. vs Tulsi Chandra Goswami, at 244; RM AR.AR.R.M.AR.
Umayhal Achi vs Lakshmi Achi and Others, ; Black_Clawson International Ltd. vs Papierwerke Waldhof Achaffenburg A.G.; , at 613; S.P. Gupta vs Union of India and others, [1982] 2 S.C.R. 365 at 594; State of U.P. vs Raj Narain, ; ; The Elphinstone Spinning and Weaving Mills Company Ltd. vs Union of India and others, writ petition No. 2401 of 1983; State of Bihar vs Kripalu Shankar, ; at 1559; Bachittar Singh vs State of Punjab, [1962] Suppl.
3 SCR 713; Air Canada and others vs Secretary of State and another, at 180; State Wakf Board vs Abdul Aziz, A.I.R. 1968 Madras 79, 81; Nitai Charan Bagchi vs Suresh Chandra Paul, ; Shyam Lal vs M. Shyamlal A.I.R. 1933 All. 649, 76 Corpus Juris Secundum 621; R.C. Cooper vs Union of India, ; at 567, 568, 635; Khajamian Wakf Estates, etc.
vs State of Madras & another; , , at 796 B E; Harakchand Ratanchand Banthia and others, etc.
vs Union of India and others; , at 496 P & G; Chandavarkar S.R. Rao vs Asha Lata, ; , 476; 44 Halsbury 's Laws of England 4th Ed.
paragraph 856 at page 552; Nokes vs Doncaster Amalgamated Colliery Limited, [1940] Appeal Cases 1014, 1022; Campbell College Belfast vs Commissioner of Valuation for Northern Ireland, ; Clyde Navigation Trustees vs Laird, ; The Corporation of the City of Nagpur vs Its Employees, ; ; Vasudev Ramchandra Shelat vs Pranlal Javanand Thakar and others, [1975] 1 SCR 534, Palmer 's Company Law 24th Ed. ; Mahadeo Lal Agarwala and another vs The New Darjeeling Union Tea Co. Ltd. and others, A.I.R. 1952 Cal.
58 and Unity Company Pvt. Ltd. vs Diamond Sugar Mills and others
A.I.R.
|
ecial Leave Petition (Civil)No.6536 of 1988.
From the Judgment and Order dated 26.4.1988 of the Bombay High Court in Appeal No. 431 of 1988.
G. Ramaswami, Additional Solicitor General and Mukul Mudgal for the Petitioner.
Anil B. Diwan, D.N. Misra, M.P. Bharucha and S.J. Vajifdar for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI,J.
This application for leave to appeal is from the decision of the Division Bench of the High Court of Bombay, dated 26th April, 1988.
By the said decision the Division Bench summarily dismissed the appeal thereby affirming the order of the learned Single Judge of the High Court.
On 12th January, 1980 the petitioner herein signed what has been treated as the first contract with the respondent for the supply of 5000 Mts. of Indian H.P.S. Groundnut Kernels Javas (hereinafter referred to as the said goods) for the year 1979 8O.
The second contract in respect of the same was signed for 4000 Mts.
on 3rd April, 1980.
On 18th August, 1980 since 3100 Mts.
of the remaining first contract and total of 4000 Mts. of the second contract had not been supplied, the contract was extended for the balance quantity for the next crop season 1980 81.
On 20th December.
1980 the petitioner informed the respondent not to nominate any vessels to load goods as they were unable to get necessary clearance from the Government.
PG NO 551 The petitioner on 27th January, 1981 sent a telex informing the respondent that the goods could not be exported on account of executive/legislative ban on such exports.
On 6th March, 1981 the Federation of Oil Seeds and Fats Association (FOSFA) informed the petitioner by its letter of the appointment of an arbitrator because of non shipment due to Government 's refusal.
Thus the respondent invoked the arbitration proceedings with FOSFA.
On 19th March, 1981 the petitioner filed a petition in the Delhi High Court challenging the arbitration proceedings by FOSFA.
The Delhi High Court on 23rd March, 1981 passed a stay order and restrained the arbitration proceedings by FOSFA.
On 11th December, 1981, the Delhi High Court held that no arbitration agreement existed with regard to the second contract dated 3rd April, 1980 and as such none was entitled to seek reference to arbitration.
It was further held that vis a vis the first contract dated 12th January, 1980 there was an arbitration clause existing.
The National Agricultural Cooperative Marketing Federation of India Ltd., filed a special leave petition in this Court on 1st April, 1982 challenging the decision of the Delhi High Court on the ground that there was no valid FOSFA arbitration clause incorporated in the first contract dated 12th January, 1980.
On 2nd December, 1983 this Court passed an interim order granting special permission to the respondent to file a money suit in any court against the petitioner since the claims were getting barred by time.
The said order stated as follows: "The order of this court dated 30.4.1982 is modified to the extent that Alimenta S.A. is at liberty to file suit against N.A.F.E.D. in respect of its claims/disputes under the two contracts dated 121.1980 and 3.4.1980.
It is directed that such suit shall not constitute abandonment of the pending arbitrations instituted/commenced by Alimenta S.A. against N.A.F.E.D. or in any manner prejudice the said arbitrations or any awards made therein or the enforcement thereof and shall not prejudice Alimenta 's contention in any of the cases.
" On 17th December, 1983 the respondent filed a regular money suit No. 488 of 1984 for an amount of US $1,70,39,544 (equivalent to Rs. 17,93,93,440) and interest On the sum of US $ 11,23,500 (equivalent to Rs.11,23,35,000).
Written statement was filed by the respondent raising several objections, inter alia, limitation, maintainability etc.
On or about 24th July, 1984, the respondent filed another identical suit in the Bombay High Court being Suit No. PG NO 552 2657/84 for recovering damages for which the written statement was filed on 20th March, 1984.
The respondent also filed another identical suit No. 1241 of 1981 in the High Court on 21st March, 1985 for which also the written statement was filed.
The Supreme Court on 9th January, 1987 held that there was a valid arbitration clause in the first contract dated 12.1.1980.
In January, 1987 the respondents started arbitration proceedings in respect of FOSFA contract dated 12.1.1980.
In 1987, the petitioner 's Solicitor in London issued summons to restrain the London arbitration.
The arbitrator thereafter affirmed that they would not proceed with the arbitration until the petitioner 's application for stay was finally disposed of.
The petitioner moved an application in suit No. 1241 of 1985 in the Bombay High Court stating that in the interests of justice pending disposal of the above three suits an injunction should be granted restraining the parties from proceeding with the arbitration and the arbitration be stayed under the principles of Section 35 of the Indian .
On 2nd January, 1988 the Bombay High Court granted an interim injunction restraining the parties from proceeding with the arbitration.
The learned Single Judge on 8th March, 1988 dismissed the notice of motion holding, inter alia, that this Court 's order dated 2nd December, 1983 set out hereinbefore was clear and, therefore, stay could not be granted.
There was an appeal to the Division Bench.
On 28th March, 1988 there was an interim order in appeal No. 431 of 1988 permitting the respondent to seek clarification from this Court regarding its order dated 2nd December, 1983.
This Court disposed of the said application by stating that the Bombay High Court might make its own order.
As mentioned hereinbefore the Division Bench of the High Court dismissed on 26th April, 1988 the appeal preferred from the decision of the learned Single Judge of that High Court.
Hence, the petitioner seeks have to appeal to this Court.
The question concerned here is, whether the High Court was right.
The High Court noted that it was an admitted position that under the first contract the defendant therein being the petitioner herein, has supplied 1900 Mts while under the second contract the defendant has not supplied anything.
The High Court noted that the petitioner has pleaded that the Government had not permitted supply of any further materials to the plaintiff being the respondent herein.
The respondent is a Swiss Company.
As per the contract the respondent had initiated arbitration proceedings against the petitioner with the Federation of Oil Seeds and Fat Association (for brief called FOSFA London PG NO 553 in 1981 and had informed the petitioner by their letter dated 10th March, 1981 for the appointment of an arbitrator on their behalf.
The defendant had contended that there could not be any such arbitration and, therefore, it filed a petition in the High Court challenging the arbitration proceedings.
The Delhi High Court on the 11th December, 1981 came to the conclusion that as regards the first contract there was a valid arbitration agreement and as regards the second contract, there was no such arbitration agreement.
In other words, as regards the first contract the respondent herein could have proceeded with the arbitration while with regard to the second contract there was no question of referring the dispute to the arbitrator as such.
Both the parties had filed special leave petitions to this Court, being 1755 of 1982 and 1756 of 1982 from the decision of the High Court of Delhi.
This Court admitted the petition but did not decide the matter immediately.
In the meanwhile, the claim of the plaintiffs was getting barred by law of limitation and, therefore, they moved this Court for an early hearing.
This Court instead of hearing the petition passed an order on 12th December, 1988 giving liberty to the respondent to file suit in respect of its claims.
It was further stated that filing of such a suit would not constitute abandonment of the pending arbitration proceedings instituted or commenced by the respondent against the petitioner.
It is pursuant to this liberty that the respondent had filed suit No. 488 of 1984.
Thereafter, without withdrawing the first suit but perhaps on the basis that there was some technical defect in the suit according to the Bombay High Court, the respondent had filed a second suit No. 2659/84 on 20th March, 1984.
It had filed another suit No. 1241 of 1985 on the very next date.
All these suits were pending in the High Court of Bombay.
The cause of action in respect of these suits is the same.
It has been stated that the present suit had been filed by way of an abundant caution and without prejudice to the rights and contentions including the arbitration proceedings.
As a result of this decision the respondent started their arbitration proceedings from the stage at which it had been stayed earlier but only in respect of the first contract.
The first notice of motion is for stay of these arbitration proceedings on the ground that the present suit as also the other two suits are pending and there cannot be any multiplicity of the proceedings in respect of the same cause of action.
The High Court noted further that in view of the decision of this Court giving it liberty to file the proceedings the respondent was at liberty to proceed with the arbitration proceedings in respect of the first contract and having regard to this position it stated at the time of hearing of this petition PG NO 554 before the High Court and also in its affidavit that it was giving up claim in respect of the first contract.
The learned Solicitor General who had appeared in the Bombay High Court on behalf of the petitioner, which was the defendant, contended that it was not open to the respondent to forego a part of its claim.
The learned Solicitor General had also argued that the cause of action was one and it was not open to the respondent to split up its cause of action.
The High Court, however, did not find any substance in that argument.
The High Court was of the view that there were two claims arising out of the two contracts and the claims could easily be segregated or separated and that was the reason that the High Court held that the respondent could give up part of its claims which related to the first contract.
In our opinion, the High Court was right.
Relying upon the decision of this Court in V/C Tractoroexport, Moscow vs M/s. Tarapore & Co. & Anr., ; , the learned Solicitor General had submitted before the Bombay High Court that though Section 35 of the does not apply, the principles underlying the same would apply and those principles were that arbitrators should not proceed with arbitration side by side and in rivalry or in competition with the Civil Court.
It Was further submitted before the High Court that it can exercise cognate or similar powers possessed by it under Section 151 of the Code of Civil Procedure and should avoid the possibility of conflict of decisions.
Reliance was placed on a decision of the Calcutta High Court in Serajuddin & Co. vs Michael Goldetz & Ors., AIR 1960 Cal.
In the said circumstance it was submitted that the proper course was to restrain the plaintiffs from getting the matter decided in London so long as the suit was pending and had not been disposed of.
In view of the fact that the subject matter of the reference was the same as in the plattings of the suit, the public tribunal should have precedence, it was submitted by the learned Solicitor General.
Reliance was also placed on the decision of India Groundnut Syndicate Ltd., Though there was no averment relating to inconvenience with regard to the contract or proceedings in a foreign Contract learned Solicitor had relied on the decision of this Court in Ramji Dayawala & Sons (P) Ltd. vs Invest Import, ; , and submitted that it was more convenient for adjudication in India then in London.
In addition to this the high costs of the arbitration and the restrictions on the availability of foreign exchange were also highlighted before the High Court of Bombay, and in as much as the defence in action in PG NO 555 India as also the arbitration in London was the same, and the evidence was the same and the entire contract had to be performed by shipping the goods from India.
Therefore, it was submitted that it was not necessary that the parties should be allowed to proceed with the arbitration in London.
It was also submitted that no prejudice would be caused to the respondent if they are required to proceed with the present suit and not with the arbitration proceedings.
On behalf of the petitioner, however, it had been contended that the respondent was interested in delaying the proceedings somehow or the other.
In support of this the petitioner brought to the notice of the High Court that in 1980 when the breach of contract took place, the plaintiff instituted arbitration proceedings and the respondent promptly filed petition in the Delhi High Court and got stay of the arbitration proceedings.
Thereafter, they lost interest in the matter and the matter came to be decided by this Court and this Court by its order dated 9.1.1987 expressed and directed that the first contract was subject to the arbitration agreement and there was no reason why the defendants could not have proceeded with such arbitration.
It further appears that sometime in October, 1987 the petitioner had taken out an originating summons in the High Court of Justice in London but the summons were not served on the respondent.
The arbitrators had given the directions that they would proceed and not wait any further.
And it was upon this that the respondent had brought the present proceedings in the Bombay High Court.
The High Court further felt that in view of the decision of this Court on 2nd December, 1983 there was no abandonment of the pending arbitration proceedings by the respondent.
It is well settled that in particular facts and circumstances it a party files a suit to save limitation the same would not Vitiate the award or make the award bad under Section 35 of the .
Reference in this connection may be made to the observations of the Punjab and Haryana High Court in Sujant Singh vs Seth Mohinder Paul, AIR 1964 Punj 395.
The High Court felt that in the facts and circumstances of this case Section 35 of the does not apply, which postulates that neither any reference nor any award shall be rendered invalid by reason only of the commencement of the legal proceedings upon the subject matter of the reference but when the legal proceedings upon the whole subject matter of the reference have been commenced between all the parties to the reference and notice has been given to the arbitrator or the umpire, all further proceedings in a pending reference shall unless a stay of proceedings is granted under Section 34, be invalid.
The High Court held, and in our opinion rightly, that PG NO 556 Section 35 does not apply.
The order of this Court set out hereinbefore clearly permits the continuation of legal proceedings in suit and cannot operate to nullify the arbitration proceedings in London.
The High Court, therefore, declined to grant stay of the arbitration proceedings.
Was the High Court right, is the question in this application.
Reliance was placed by the learned Additional Solicitor General Mr. G. Ramaswamy before us on a decision of this Court in Oil & Natural Gas Commn.
vs Western Co. of N. America, for the proposition that in a situation of the present type it would be improper to ask the petitioner to go on with the arbitration in London.
The facts there were entirely different from the facts before us.
Section 151 of the Code of Civil Procedure on the bais of which and on the principle of which stay of proceedings in London was sought, are well settled and these principles are whether in a particular case it would be just and equitable to the parties to direct them to proceed with the arbitration, must depend upon the facts and circumstances of a particular case having regard to the legal provisions applicable to a particular situation.
In the decision referred to hereinbefore this Court took into consideration the fact that there was an application under Sections 30 & 33 of the for setting aside the awards rendered by the umpire in that case and that there was a possibility of the award rendered by the Umpire being stayed by the Indian court.
This Court also took into consideration that in that event an extremely anomalous situation would arise inasmuch as the successful party the Western Company might well have recovered the amount awarded as per the award from the assets of the losing party in U.S.A. after procuring the judgment in terms of the award from the U.S.A. court.
Such possibility of damage and danger is absent in the present case.
In the said decision before this Court by the contract therein the Indian courts had exclusive Jurisdiction and it would, however, be improper to proceed on the basis that the Indian courts have exclusive jurisdiction to affirm or set aside the award in terms of the proper law of the contract, or in terms of the actual contrast between the parties.
Foreign awards automatically are not 'lifeless awards '.
They can be enforced in this country in accordance with law.
See in this connection the Foreign Awards (Recognition and Enforcement) Act, 1961.
Furthermore, unlike the case of Oil & Natural Gas Commission this is not a case of restraining the respondent from proceeding in a foreign court.
This is a case of binding the parties to their bargain for going to the arbitration.
The learned Single Judge of the High Court in PG NO 557 the instant case had taken into account all the relevant facts.
It had considered the contract of the parties, the arbitration agreement, the statement made on behalf of the respondent and had thereafter exercised its jurisdiction not to stay the proceedings of arbitration in relation to the first contract.
There is a valid arbitration agreement Between the parties.
In view of the direction of this Court, the continuation of the arbitration proceedings in respect of the filing of the suit would not be bad.
In those circumstances if the court declined to exercise its jurisdiction under Section 151 of the Code of Civil Procedure to grant stay of the proceedings of arbitration in London, the court, in our opinion, has not acted in excess of jurisdiction or has not exercised its jurisdiction improperly.
In such a situation the Appellate Court should not normally interfere.
In the premises, it would have been improper to exercise any jurisdiction to interfere.
See the observations of this Court in Ramji Dayawala & Sons (P) Ltd. (supra).
There will be no stay of the arbitration in relation to the first contract only.
In the Premises, it would not be proper for us to interfere with the judgment of the Division Bench of the High Court.
The application, therefore, fails and is accordingly dismissed.
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The petitioner signed two contracts, one on the 12th January.
1980 and the other on 18th August, 1980 for the supply of Indian H.P.S. Groundnut Kernels Javas to a Swiss Company.
On 20th December, 1980 the petitioner informed the respondent not to nominate any vessels to load goods as it were unable to get necessary clearance from the Government, and by a telex message on 27th January.
1981 informed the respondent that the goods could not be exported on account of executive/legislative ban.
The respondent invoked the arbitration proceedings with the Federation of Oil Seeds and Fats Association who informed the petitioner on 6th March, 1981 by a letter of the appointment of an arbitrator.
The petitioner challenged the arbitration proceedings in the Delhi High Court.
On March 23rd.
1981 a stay order was passed restraining the arbitration proceedings, and on 11th December.
1981 the High Court held that no arbitration agreement existed with regard to the second contract and as such nobody was entitled to seek reference to arbitration.
The petitioner filed a special leave petition to this Court.
This Court passed an interim order granting special permission to the respondent to file a money suit in any court since the claims were getting barred by time.
Pursuant to this order the r respondent filed a regular money suit in a foreign court, and two identical suits in the Bombay High Court for recovering damages, for which the written statements were filed.
PG NO 548 PG NO 549 The petitioner moved an application in one of the suits in the High Court stating that in the interests of justice pending disposal of the three suits an injunction should be granted restraining the parties from proceeding with the arbitration, and that the arbitration be stayed under the principles of section 35 of the .
The High Court granted interim injunction restraining the parties from proceeding with arbitration.
On 8th March, 1985, the High Court dismissed the notice of motion and held that this Court 's order dated 2nd December, 1983 was clear, there was no abandonment of the pending arbitration proceedings by the respondent and therefore stay could not be granted.
This order was confirmed by the Division Bench in appeal.
In the S.L.P. to this Court the question was: whether the High Court was right in declining to grant stay of the arbitration proceedings.
Dismissing the application, HELD: 1.
The High Court rightly held that Section 35 does not apply.
[556A] Sujant Singh vs Seth Mohinder Paul, AIR1964 Punj 395 ref.
to. 2.
In particular facts and circumstances if a party filed a suit to save limitation the same would not vitiate the award or make the award bad under section 35 of the Arbitration Act.[555F] 3.
Foreign awards automatically are not `lifeless award ' They can be enforced in this Court in accordance with law.[556G] Oil & Natural Gas Common.
Western Co. of N. America, AIR 1987 SC 574 ref to. 4.
Whether in a particular case it would be just and equitable to the parties to direct them to proceed with the arbitration, must depend upon the facts and circumstances of a particular case having regard to the legal provisions applicable to a particular Situation.[556A D] In the instant case, there is a valid arbitration agreement between the parties.
In view of the direction of this Court.
the continuation of the arbitration proceedings in respect of the filing of the suit would not be bad.
In these circumstances if the court declined to exercise its jurisdiction under section 151 of the Code of Civil Procedure to grant stay of the proceedings of arbitration in PG NO 550 London, the court has not acted in excess of jurisdiction or has not exercised its jurisdiction improperly.
In such a situation the Appellate Court should not normally interfere.
In the premises, it would have been improper to exercise any jurisdiction to interfere.
[557B C] V/C Tractoroexport, Moscow vs M/s Tarapore & Co. & Anr., ; ; Serajuddin & Co. vs Michael Goldetz & Ors., AIR 1960 Cal.
47; In re All India Groundnut Syndicate Ltd., and Ramji Dayawala & Sons (P) Ltd. vs Invest Import; , referred to.
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Petitioners are the accused in S.C. No. 215 of 2019 on the
file of the Assistant Sessions Court, Kasaragod which
originated from the final report in Crime No. 646 of 2017 of
Kasaragod police station where offences under Sections 143,
147, 148, 341, 323, 324, 506(ii), 308 read with Section 149 of
the IPC are alleged against the accused persons, ten in number.
2. The allegation is that on 23.07.2017 at 12.30 hours, at
Thalankara old harbour and then around the premises of Malik
Dinar hospital, accused persons along with some identifiable
persons formed an unlawful assembly and in prosecution of
their common object, owing to the reason that CW1 Sanal had
taken a lady of a different community in a car, the 1 st accused
wrongfully restrained and intimidated that he would be killed;
2nd accused beat him with a wooden reaper, a dangerous
weapon and caused him injuries; accused Nos. 3 and 4
assaulted him with iron rods. Now the final report has been
laid with the above-stated allegations and the case is pending
before the Assistant Sessions Court. It appears that the trial has
already commenced. Petitioners have moved this Court seeking
to quash the proceedings on the ground of settlement reached
with the 2nd respondent.
3. I heard the learned counsel for the petitioners and also
the learned Senior Public Prosecutor who seriously opposed the
application for settlement.
4. Even though the learned Senior Public Prosecutor has
confirmed the settlement reached with the 2nd respondent, who
had given a further statement stating that the matter is settled,
has opposed quashing the proceedings. According to him,
petitioners were virtually doing moral policing. Moreover,
accused Nos. 4 and 5 are having serious criminal antecedents
to their credit. The 4th accused is involved in fifteen other cases
including two cases alleging offence under Section 307 of the
IPC and three other Sessions Cases, whereas the 5 th petitioner
has seven other cases including offence under Section 307 of
the IPC.
5. After hearing counsel on both sides, I am also
convinced that the proceedings cannot be quashed as prayed
for by the petitioners. Firstly the trial of the case is in progress,
the memorandum of evidence indicates that at least seven
witnesses have already been examined on the side of the
prosecution. Secondly, it is a case in which a violent mob was
attacking the 2nd respondent ostensibly for no reason. The
reason shown is that he had removed a lady from another
community in the car. As rightly suggested by the learned
Senior Public Prosecutor if such a case is allowed to be
quashed on the ground of settlement, that would send a wrong
message to the public.
6. In the decision reported in Gian Singh v. State of
Punjab and others [2012 (10) SCC 303] the Hon'ble Apex
Court has laid down guidelines while considering application
for quashing proceedings on the ground of settlement, invoking
jurisdiction under Section 482 of the Cr.P.C. According to the
Apex Court securing ends of justice is the ultimate guiding
factor. Serious offences like murder, rape, dacoity, etc, or other
offences of mental depravity under the Indian Penal Code or
offences of moral turpitude under special statutes are saved
from being considered for quashing on the ground of
settlement. Following these guidelines, it is certain that
petitioners are not entitled to get the proceedings quashed.
7. Firstly, as noticed earlier, it was a case in which a mob,
armed with deadly weapons were rounding up and assailing the
2nd respondent on the ground that he had removed a lady of a
different community in a car. In other words, they were doing
moral policing. That means this is an offence involving mental
depravity. Moreover, brutal attack was unleashed against an
unarmed single person and caused him serious injuries.
8. Again, at least a few of the petitioners are fugitive
criminals having very grave criminal antecedents. In the
circumstances, the alleged settlement reached with the 2 nd
respondent cannot be reckoned for quashing the proceedings
under Section 482 of the Cr.P.C. The Criminal Miscellaneous
Case is devoid of merits and is liable to be dismissed.
|
The Court observed that moral policing involves "mental depravity".The Kerala High Court recently ruled that moral policing is an offence that involves mental depravity and that such cases cannot be quashed on the ground of settlement between the accused and complainant. Justice K. Haripal was adjudicating upon a case in which a violent mob had attacked an unarmed man for taking a woman belonging to a different community in his car. "... it was a...
The Kerala High Court recently ruled that moral policing is an offence that involves mental depravity and that such cases cannot be quashed on the ground of settlement between the accused and complainant.
Justice K. Haripal was adjudicating upon a case in which a violent mob had attacked an unarmed man for taking a woman belonging to a different community in his car.
"... it was a case in which a mob, armed with deadly weapons were rounding up and assailing the 2nd respondent on the ground that he had removed a lady of a different community in a car. In other words, they were doing moral policing. That means this is an offence involving mental depravity. Moreover, brutal attack was unleashed against an unarmed single person and caused him serious injuries."
Although it was informed that the parties had arrived at a settlement, the Court declined to quash the proceedings noting that it would send the wrong message to the society.
"If such a case is allowed to be quashed on the ground of settlement, that would send a wrong message to the public."
The plea was filed through Advocate S Jiji by 10 individuals accused of committing offences punishable under Sections 143, 147, 148, 341, 323, 324, 506(ii), 308 r/w Section 149 of the Indian Penal Code.
The prosecution case was that the accused formed an unlawful assembly outside a hospital and in the prosecution of their common object, threatened, restrained and injured the defacto complainant merely because they suspected him to have a woman from a different community in his vehicle.
They moved the High Court to quash the proceedings before the Assistant Sessions Court on the ground that of the settlement. The de facto complainant had also affirmed that they had reached a settlement.
However, Senior Public Prosecutor Sanal T.R while confirming the settlement, objected to quashing the proceedings and argued that the accused were engaged in moral policing.
After recording the submissions of the parties, the Court agreed wth the Public Prosecutor.
Reliance was placed on the Supreme Court decision in Gian Singh v State of Punjab & Ors. where it was held that while considering an application for quashing proceedings on the ground of settlement, the end goal is to secure the ends of justice. It was also elaborated that serious offences like murder, rape, dacoity, etc, or other offences of mental depravity under the IPC or offences of moral turpitude under special statutes are saved from being considered for quashing on the ground of settlement.
As such, the Judge refused to quash the case against the accused citing that moral policing is an offence of mental depravity.
Case Title: Muhammed Nazar & Ors. v State of Kerala & Anr.
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CRL.P No. 1698 of 2023
CRL.P No. 1698 of 2023
This petition is filed under Section 439 of Cr.P.C. , by
accused No.1, praying to enlarge her on bail in Cri me
No.134/2022 of Yeshwanthapura Police Station.
2. Heard the learned counsel for petitioner and the
learned High Court Government Pleader for responden t-
State and perused the material on record.
3. Charge sheet is filed against accused Nos.1 and
2 for offence punishable under Section 120(B), 118, 302
read with 34 of IPC.
4. Case of the prosecution in brief is that,
petitioner/accused No.1 is the wife of deceased-
R.Shankarareddy. There was an illicit relationship
between petitioner and accused No.2. The deceased was
working in Bengaluru. Petitioner was staying in An dhra
Pradesh along with her two minor children. Since t he
deceased decided to bring his wife and children to
Bengaluru for the purpose of children's education,
CRL.P No. 1698 of 2023
petitioner and accused No.2 conspired with each oth er to
commit his murder, so that they could continue thei r illicit
relationship. On 24.02.2022 petitioner along with her
children came to Bengaluru and stayed with her husb and
in a rented house situated at Mohan Kumar Nagar, 1s t 'C'
Cross, Yeshwanthpura. As per the conspiracy hatche d and
at the instigation of accused No.2, at about 11.30 pm,
when the deceased was sleeping in the house, petiti oner
herein stabbed him with a knife on his neck and
committed his murder. Then with the same knife, sh e
caused injuries to her hand and removed her Mangaly a
chain, ear stud etc., and concealed it, to make it appear as
if it is a case of robbery and murder.
5. On the basis of the complaint lodged by the
land owner of the house, initially case was registe red
against unknown persons for the offence punishable under
Section 302 of IPC. In the course of investigation ,
petitioner/accused No.1 and accused No.2 were arres ted
and their voluntary statement was recorded.
CRL.P No. 1698 of 2023
6. It is contended by the learned counsel for
petitioner that the entire allegations are false. H e has
contended that the petitioner has also sustained in juries in
the incident and therefore, she is innocent and som e other
accused might have committed the offence. He has
contended that the petitioner is a woman and she is
languishing in judicial custody since 24.09.2022 an d
accused No.2 is already enlarged on bail and theref ore,
seeks to allow the petition and to grant bail to th e
petitioner.
7. The learned High Court Government Pleader on
the other hand has opposed the prayer seeking bail and
sought to reject the petition contending that there are
sufficient material collected against the petitione r herein
proving her role in the crime. He has contended th at the
prime witness is the son of petitioner and therefor e, in the
event of grant of bail to the petitioner, she may t utor him
and thereby hamper the case of prosecution.
CRL.P No. 1698 of 2023
8. The deceased was found murdered in the house
where he was residing with this petitioner and two minor
children. It is contended by the learned counsel f or
petitioner that even the petitioner has sustained i njuries,
and therefore, she is innocent. According to the
prosecution, there was an illicit relationship betw een the
petitioner and accused No.2. Since the deceased wa s an
obstacle to the said relationship, both the accused
conspired with each other to commit his murder and when
he was sleeping, petitioner herein stabbed him and
committed his murder and then caused injuries to he rself
with the same knife to mislead the investigation.
9. The prosecution has recorded the statements of
C.Ws.10, 11 and 13 who speaks about the illicit
relationship and motive for the offence. Further M angalya
chain and ear stud belonging to the petitioner whic h was
concealed by her, have been recovered. Her blood s tained
nightie is also recovered. More importantly, the s tatement
of C.W.2, namely the minor son of the petitioner an d the
CRL.P No. 1698 of 2023
deceased, would reveal that there was a quarrel bet ween
the deceased and this petitioner in the night and w hen he
woke up, he saw his father lying dead with stab inj uries.
At this stage, there is a prima facie case against the
petitioner. The offence alleged is grave in nature . Merely
because the petitioner is a woman is not a ground t o
enlarge her on bail. Insofar as accused No.2 is co ncerned,
who has been granted bail by this Court in
Crl.P.No.7503/2022, the allegations are that he con spired
with the petitioner. Hence, grant of bail to the s aid
accused will not enure to the benefit of the petiti oner.
Considering the nature and gravity of the offence, this is
not a fit case to enlarge the petitioner on bail. H ence,
petition is dismissed .
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The Karnataka High Court recently refused to grant bail to a woman alleged to have stabbed her husband to death, while remarking that it cannot release the petitioner on bail merely because she is a woman. [Dilli Rani v. State]
The Court was hearing a bail plea filed by a woman booked for murder, criminal conspiracy and other offences under the Indian Penal Code (IPC).
Justice Mohammad Nawaz refused to grant bail in view of the grave nature of the alleged offence.
Responding to the petitioner counsel's request for bail since the accused was a woman who has been languishing in jail since last September, the Court said that it cannot order her release only on such a ground.
"At this stage, there is a prima facie case against the petitioner. The offence alleged is grave in nature. Merely because the petitioner is a woman is not a ground to enlarge her on bail," the Court said.
The Court added that the grant of bail to a co-accused, who was alleged to have conspired to commit the murder, would also not help the petitioner's case. Therefore, it rejected the bail plea.
According to the prosecution, the woman and her lover (co-accused) had allegedly conspired to murder her husband with the intention of continuing their illicit relationship.
The accused woman was alleged to have stabbed her husband while he was sleeping at home. Further, she was accused of injuring herself with the same knife to make it look like a robbery.
After a complaint was filed by the landowners, a case was initially registered against unknown individuals. However, after conducting an investigation, the woman and her lover were eventually arrested.
While rejecting the bail plea, the Court also took into consideration the statement made by the accused woman's son that there was a quarrel between his parents on the night before his father's death. In the morning, the son stated, his father was found dead with stab injuries.
The petitioner was represented by Advocate Sri Gopal, while the respondent was represented by High Court Government Pleader RD Renukaradhya.
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Civil Appeal No. 2537 of 1985 etc.
From the Judgment and Order dated 27.4.1984 of the Bombay High Court in O.S.W.P. No. 704 of 1984.
G.G. Kalsekar, K.M.M. Khan, N. Nettar and S.N. Bhat for the Appellants.
S.K. Dholakia, Ashok H. Desai, A.M. Khanwilkar, A.S.Bhasme, D.N. Mishra, section Sukumaran, G.E. Vahanvati, V.B. Agarwala, B.B. Agarwala, R.B. Hathi Khanawala for the Respondents.
Vinod A. Bobde, Mrs. J. Wad and Mrs. Aruna Mathur for the Intervener.
922 The Judgment of the Court was delivered by DUTT, J.
The subject matter of this appeal by special leave is the permission for development of the land granted in favour of respondent No. 5 who proposed to construct a five star hotel on a tract of land measuring 44,820.49 square yards at Bandra, Bombay, bearing R.S. Nos. 416 (Part) and 417.
The land in question had been purchased by the respondent No. 5, Enjay Estates Pvt. Ltd., from its erstwhile owner, Byramji Jeejeebhoy Pvt. Ltd. In the 1966 sanctioned Development Plan of Greater Bombay, the said land was shown in the residential zone and a contiguous parcel of land measuring 18,000 sq.
was shown as a green belt.
With a view to developing the disputed land, the respondent No. 5 submitted a plan to the Municipal Corporation of Greater Bombay for the construction of a five star hotel.
The Commissioner of the Municipal Corporation, however, rejected the plan on the sole ground that it was proposed to earmark the said land under reference as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing.
Being aggrieved by the said rejection of the plan, the respondent No. 5 pref erred an appeal to the Government of Maharashtra under section 47 of the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as 'the Act '.
The appellants, who are rate payers of the Municipal Corporation of Greater Bombay and claim to be members of various ecological action groups, appeared in the appeal and opposed the same contending, inter alia, that the whole of the said land should be kept reserved for a green belt or recreational ground in the interest of the general public.
The appeal was heard by the Minister of State for Urban Development, the respondent No. 2 herein.
The respondent No. 2 set aside the order of the Commissioner of the Municipal Corporation rejecting the plan submitted by the respondent No. 5 after hearing the petitioners as also the Municipal Commissioner and directed sanctioning of the plan on certain conditions which will be referred to later in this judgment.
The Municipal Corporation accepted the appellate order and did not challenge the order of the respondent No. 2.
But the appellants filed a writ petition challenging the legality of the order of the respon 923 dent No. 2 granting sanction of the plan submitted by the respondent No. 5 for the construction of a hotel on the said land.
The writ petition was, however, dismissed by the Division Bench of the High Court by the judgment under appeal.
At this stage, we may refer to some of the provisions of the Act.
It is an Act to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor; to make better provisions for the preparation of Development Plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to provide for the creation of new towns by means of Development Authorities; to make provisions for the compulsory acquisition of land required for public purposes in respect of the plans; and for purposes connected with the matters aforesaid.
Section 2(9) defines "Development Plan" to mean a plan for the development or re development of the area within the jurisdiction of a Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction.
Under section 2(19), "Planning Authority" means a local authority; and includes a Special Planning Authority constituted or appointed under section 40.
Chapter III of the Act contains provisions for the Development plan.
Section 23 provides for the declaration of intention by the Planning Authority to prepare a Development plan.
Section 26 provides for the preparation and the publication of notice of draft Development plan.
Under section 30, the Planning Authority has to submit the draft Development Plan to the State Government for sanction.
Section 31 provides for the sanction to the draft Development plan by the State Government.
Section 43 provides, inter Ala, that after the date on which the declaration of intention to prepare a Development plan for any area is published in the Official Gazette, no person shall carry out any development of land without the permission in writing of the Planning Authority.
Section 45 deals with grant or refusal of sanction for development by the Planning Authority.
Section 45 enjoins that the Planning Authority in considering an application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act.
Section 47 provides for an appeal to the State Government or to an officer appointed by the State Government by any applicant aggrieved by an order granting permission on conditions or refusing permission under section 45.
In allowing the appeal of the respondent No. 5 and directing 924 sanction of the development plan, the respondent No. 2 observed that in view of the clear provisions of sections 46 and 31(6) of the Act and having regard to the position that in the sanctioned plan of 1966, the said land was included in the residential zone and no proposal to exclude it therefrom in the draft revised development plan had been published, the Municipal Commissioner was not justified in rejecting the application for approval of the plan submitted by the respondent No. 5 on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan.
We have already referred to section 46 of the Act which provides that the Planning Authority in considering the application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act.
It seems that the respondent No. 2 was of the view that the Planning Authority could only take into its consideration any draft or final plan or proposal which had been published by means of notice or sanctioned under the Act as provided in section 46.
There is, in our opinion, some force in the contention made by Mr. Kalsekar, learned Counsel appearing on behalf of the appellants, that the respondent No. 2 has misunderstood the provisions of section 46.
It is submitted by the learned Counsel that the Municipal Corporation was entitled to take into consideration other relevant facts including the contemplated revision of the plan, apart from those mentioned in section 46.
In support of his contention, the learned Counsel has placed reliance on an unreported decision of a learned Single Judge of the Bombay High Court in Life Insurance Corporation of India and Another vs Municipal Corporation of Greater Bombay and Others, Writ Petition No. 2944 of 1932 disposed of on 6.3.1984.
In that case, a development application was rejected by the Municipal Corporation on the ground that the property was proposed to be reserved for public purposes or for recreational ground in the draft revised development plan, and the High Court repelled the challenge to the decision taking the view that even the proposed revision could be taken into account as one of the relevant factors.
There can be no doubt that if there be any other material or relevant fact, section 46 does not stand in the way of such material or fact being considered by the Municipal Corporation for the grant or refusal to grant sanction of any development plan.
In the unreported decision of the High Court, the relevant fact that was taken into consideration was the draft revised development plan, even though the plan was not published.
In the instant case, however, at the time the Municipal Commissioner rejected the plan submitted by the respondent No. 5, there was no draft revised development plan in existence.
925 It was in contemplation.
If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan submitted by the respondent No. 5.
But, as there was no such draft revised plan as has been stated before this Court even by the Counsel for the Municipal Corporation, the Municipal Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan.
An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material.
In the absence of any such material, it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation.
We are, therefore, of the view that the ground for rejecting the plan submitted by the respondent No. 5 was not tenable and the appellate authority was justified in allowing the appeal.
It is urged by Mr. Kalsekar that in any event no appeal lay under section 47 when the Municipal Corporation had decided to revise the development plan.
We are afraid, we are unable to accept the contention.
The same contention was advanced before the respondent No. 2 and it was rightly rejected.
Section 47 of the Act does not warrant the contention urged by the learned Counsel.
In our opinion, to hold that after the Municipal Corporation had decided to revise the development plan, no appeal would be competent to the State Government under section 47, would amount to legislating and rewriting the provision.
Such a contention is without any substance and is rejected.
The respondent No. 2 directed sanction of the plan out of 44,820.49 sq. yds.
belonging to the respondent No. 5, on the following conditions: (i) 15% Recreation space to be left in Block 'A ' shall be kept on the southern side of the plot abutting the green space left from Block 'B ' after merging the Road area in the Green space.
(ii) The Development shall be allowed IOD and C.C. shall be issued as per the Development Control Rules.
(iii)The F.S.I. of the road area would be admissible on plot 'A ' as per Development Control Rule 10(2).
(iv) The Municipal Commissioner, Municipal Corporation of Greater Bombay, Bombay, shall take over the possession of 926 the land proposed to be kept as Green on southern side, abutting the sea after getting the plots properly demarcated.
The Municipal Commissioner, M.C., G.E., Bombay, may consider the proposal of allowing the development and maintenance of the park and garden space by the applicant party at their own cost after obtaining the possession of the lands now proposed to be kept green.
The permission for development of plots as per plans submitted by appellants be granted by the M.C.B. M.C. subject to the conditions mentioned above.
We are told that after the above conditions are worked out, the area that will be available to the respondent No. 5 for the construction of the hotel is only 19,951.10 sq.
It is, therefore, apparent that in granting sanction to the plan, the respondent No. 2 was quite alive to public interest.
At this stage, we may notice a very significant development that has taken place during the pendency of this appeal, namely, that the Municipal Corporation has, subsequent to the judgment of the High Court, prepared and published on April 30, 1984 a draft revised development plan.
The plan of the respondent No. 5 is not inconsistent with the draft revised development plan.
This fact demolishes all the contentions of the appellants against the plan submitted by the respondent No. 5.
Realising this difficulty, Mr. Kalsekar assailed the draft revised plan on the ground that it was prepared in accordance with the direction of the respondent No. 2.
This contention of the learned Counsel has no foundation whatsoever.
There is no material on record to show that the Municipal Corporation which is the Planning Authority, had prepared the draft revised plan in accordance with the direction of the respondent No. 2.
The respondent No. 2, in our opinion, has acted in public interest by imposing the conditions mentioned above.
The conditions would show that considerable area out of the disputed land has been reserved for recreational ground or green belt.
The plan, as sanctioned by the respondent No. 2 with the conditions imposed, has been shown in the draft revised plan.
It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it in the High Court or before this Court.
In the circumstances, there is no merit in this appeal challenging the order of the respondent No. 2 sanctioning the development plan of the respondent No. 5. 927 Now we may take up the two Special Leave Petitions being Special Leave Petition (Civil) No. 173776 of 1985 and Special Leave Petition (Civil) No. 17377 of 1985.
A few facts may be stated.
The Municipal Corporation passed a resolution on 3.12.1973, inter Ala, extending the park reservation by including the remaining area of the land comprised in R.S. No. 416 and R.S. No. 417 (part) at Bandra.
By another resolution dated 14.3.1974, the first resolution was modified limiting the reservation for the park to 7,000 sq.
out of the disputed land.
The petitioners, who are the appellants in the above appeal, filed two Misc.
Petitions, namely, Misc.
Petition No. 463 of 1974 challenging the legality and validity of the resolution dated 14.3.1974 and Misc.
Petition No. 1406 of 1978 challenging the order of the Government of Maharashtra dated 25.7.1978 exempting the disputed land under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976, hereinafter referred to as the 'Urban Land Ceiling Act '.
Both the Misc.
Petitions were dismissed by a learned Single Judge of the Bombay High Court.
Two appeals were preferred by the petitioners against the judgment of the learned Single Judge to the Division Bench.
On July 30, 1984 when the appeals were taken up for hearing, a prayer was made by the learned Counsel for the petitioners for an adjournment for two weeks on the ground that Shri Bhore, the Advocate on Record, had met with an accident and the learned Counsel was unable to proceed with the appeals without the Advocate on Record.
The learned Judges of the Division Bench did not accede to the prayer of the learned Counsel for an adjournment for two weeks on the ground that the appeals were old appeals of 1979, and that the learned Counsel who prayed for adjournment himself appeared throughout the proceedings as an Advocate.
The learned Judges, however, adjourned the appeals to the next day, that is, July 31, 1984 to enable the learned Counsel to be ready with the matter.
On the next day, the learned Counsel did not appear and the learned Judges of the Division Bench disposed of the appeals ex parte by a judgment dealing with the contentions of the petitioners.
The result was that both the appeals were dismissed.
We do not think that we are called upon to consider whether the learned Judges should have granted an adjournment for two weeks as was prayed for by the learned Counsel.
Suffice it to say that if an adjournment had been granted, multiplicity of proceedings could have been avoided.
Be that as it may, the petitioners filed two applications for review.
Both the said applications for review were dismissed by the 928 Division Bench after considering all the points including certain additional grounds to the effect that certain contentions had not been dealt with earlier by the judgment dated October 9/10, 1985.
The petitioners have not challenged the judgment of the High Court passed on the review applications.
They have, however, filed before this Court the above two Special Leave Petitions.
Special Leave Petition (Civil) No. 17376 of 1985 arises out of Misc.
Petition No. 463 of 1974 whereby the petitioners challenged the legality and validity of the said resolution dated 14.3.1974.
We are of the view that the contention of the petitioners against the validity of the resolution is no longer tenable, regard being had to the fact that the draft revised development plan has since been published and the plan submitted by the respondent No. 5 and conditioned by the respondent No. 2 is not inconsistent with the draft revised plan.
In that view of the matter, Mr. Kalsekar also has not seriously pressed the validity of the said resolution.
Accordingly, Special Leave Petition (Civil) No. 17376 of 1985 is liable to be dismissed.
So far as Special Leave Petition (Civil) No.17377 of 1985 is concerned, it has been strenuously urged by Mr. Kalsekar that in granting exemption to the respondent No. 5, the authority concerned has violated the relevant guidelines and also the provision of section 20 of the Urban Land Ceiling Act.
Learned Counsel points out that one of the grounds for exemption is that 75,000 sq.
of vacant land is available for the development of gardens.
As a matter of fact, Counsel submits, it is not a vacant land, but contains 350 houses.
It is submitted that granting exemption on the ground of availability of 75,000 sq.
of open site for the purpose of gardens is a fraud on the Urban Land Ceiling Act.
It is, accordingly, urged by the learned Counsel that the order granting exemption should be quashed.
The above grounds of challenge to the order of exemption granted to the respondent No. 5 have all been considered by the High Court in its judgment disposing of the review applications.
The petitioners have not challenged the judgment on review applications.
The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public.
They are not, in our opinion, concerned with the question as to the legality or otherwise of the exemption granted by the Government to the respondent No. 5 under the Urban Land Ceiling Act.
A copy of the draft revised development plan has been produced before us by Mr. Desai, learned Counsel appearing on behalf of 929 the respondent No. 5.
We are satisfied that the question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court.
In the circumstances, we do not think that we are called upon to decide the legality or otherwise of the order granting exemption to the respondent No. 5 under the Urban Land Ceiling Act.
There is, therefore no substance also in Special Leave Petition (Civil) No. 17377 of 1985.
In the result, the appeal and both the special leave petitions are dismissed.
There will, however, be no order as to costs.
G.N. Appeal and Petitions dismissed.
|
% A piece of land had been purchased for the construction of a five star hotel.
In the sanctioned development plan the said land was shown in the residential zone and a contiguous parcel of land was shown as green belt.
When the plan was submitted to the Municipal Corporation for the construction of a five star hotel, the Commissioner rejected the plan on the ground that it was proposed to earmark the said land as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing.
Aggrieved by the rejection, an appeal was preferred to the State Government under sec.
47 of the Maharashtra Regional and Town Planning Act, 1966.
The appeal was heard by the Minister of State for Urban Development.
The appellants herein, members of various ecological groups and rate payers of the Municipal Corporation, appeared and opposed saying that the land should be kept reserved for a green belt or recreational ground in the interest of the general public.
However, the Minister set aside the order of the Municipal Commissioner and directed the sanctioning of the plan on certain conditions.
The Municipal Corporation accepted the appellate order and did not challenge it.
But the appellants filed a Writ Petition challenging the legality of the order.
The writ petition was dismissed by the High Court.
The present appeal by special leave is against this dismissal.
Meanwhile the Municipal Corporation passed a resolution extending the park reservation by including the remaining area of the land in question.
By another resolution the first resolution was modified limiting the reservation for the park to 7,000 sq.
yards out of the dis 920 puted land.
Thereafter the State Government exempted the disputed land under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976.
The resolutions and the order were challenged in the High Court.
The petitions were dismissed by a Single Judge of the High Court and later by the Division Bench on appeal.
The Review Petitions also met the same fate.
The petitioners have not challenged the judgment of the High Court passed on the review applications, but filed before this Court the two special leave petitions challenging the legality and validity of the two resolutions and the order of Government giving exemption under section 20 of the Urban Land (Ceiling and Regulation) Act.
Dismissing the appeal, and the special leave petitions, this Court, ^ HELD: 1.1 In allowing the appeal and directing sanction of the development plan, the Minister observed that in view of the clear provisions of sections 46 and 31(6) of the Act and having regard to the position that in the sanctioned plan of 1966, the said land was included in the residential zone and no proposal to exclude it therefrom in the draft revised development plan had been published, the Municipal Commissioner was not justified in rejecting the application for approval of the plan on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan.
The Minister was of the view that the Planning Authority could only take into consideration any draft or final plan or proposal which had been published by means of notice, or sanctioned under the Act.
When Municipal Commissioner rejected the plan, there was no draft revised development plan in existence.
It was in contemplation.
If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan.
The Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan.
An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material.
In the absence of any such material, it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation.
Therefore, the ground for rejecting the plan was not tenable and the appellate authority was justified in allowing the appeal.
[923H; 924A B, H; 925A C] 1.2 The Municipal Corporation has, subsequent to the judgment of the High Court, prepared and published a draft revised development plan.
The plan is not inconsistent with the draft revised development plan.
There is no material on record to show that the Municipal Corporation which is the Planning Authority, had prepared the draft revised 921 plan in accordance with the direction of the Minister.
The Minister has acted in public interest by imposing the conditions.
The conditions would show that considerable area out of the disputed land has been reserved for recreational ground or green belt.
The plan, as sanctioned with the conditions imposed, has been shown in the draft revised plan.
It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it in the High Court or before this Court.
[926E H] 2.
The contention of the petitioners against the validity of the resolution is no longer tenable, regard being had to the fact that the draft revised development plan has since been published and the plan submitted and conditioned by the Minister is not inconsistent with the draft revised plan.
The petitioners have also not seriously pressed the validity of the said resolution.
[928C D] 3.
This Court is not called upon to decide the legality or otherwise of the order granting exemption.
These have been considered by the High Court in its judgment disposing of the review applications.
The petitioners have not challenged the judgment on review applications.
The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public, and are not concerned with the question as to the legality or otherwise of the exemption granted by the Government.
The question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court.
[928G H; 929A]
|
ons for special leave to Appeal (Civil) Nos.
2430, 2431, 2436 to 2438, 2442 2443.
2445, 2446, 2472 and 2480 of 1969 and 3 of 1970.
From the orders dated December 8, 1969 of the Madras High Court in Civil Misc.
Petitions Nos.
15375 of 1969 etc.
in Writ Appeals Nos.
519 of 1969 etc.
K. K. Venugopal and R. Gopalakrishnan, for the petitioner (in S.L.P. Nos.
2430, 2431 and 2438 of 1969).
section Mohan Kumaramangalam, M. K. Ramamurthi, G. Ramaswamy, Shyamala Pappu and Vineet Kumar, for the petitioners (in S.L.P. No. 2436 of 1969).
M. K. Ramamurthi, G. Ramaswamy, Shyamala Pappu and Vineet Kumar, for the petitioner (in S.L.P. No. 2437 of 1969).
A. section Nambiar, for the petitioner (in S.L.Ps.
2442, 2443 and 2472 of 1969).
496 M. C. Setalvad, V. Subramanian and K. Jayaram, for the petitioner (in S.L.P. Nos. 2445, 2446 and 2480 of 1969 and 3 of 1970).
Madan Mohan for respondent No. 1 (in S.L.P. Nos.
2430, 2431, 2436, 2437, 2438, 2442, 2443 and 2472 of 1969).
O. C. Mathur, for respondent No. 1 (in S.L.P. No. 2445 of 1969).
R. Gopalakrishnan, for respondent No. 1 (in S.L.P. No. 2480 of 1969).
K. Thirumalai, A. T. M. Sampath and E. C. Agrawala, for respondent No. 1 (in S.L.P. No. 3 of 1970).
The Order of the Court was delivered by Hidayatullah, C.J. These are petitions for special leave against the orders of the Division Bench of the High Court of Madras by which the High Court has ordered that the permits granted by the Regional Transport Authority will operate and not those which the State Transport Appellate Tribunal in appeal granted.
The facts may be stated, taking as a sample, Special Leave Petition No. 2430 of 1969.
The original grantee of the permit by the Regional Transport Authority may be described as 'A '.
The date of the grant was November 20, 1966.
On appeal by the respondent who may be described as 'B ', the State Transport Appellate Tribunal cancelled the grant made to A by the Regional Transport Authority.
This was on July 18, 1967.
A writ petition was thereupon filed by A and it was allowed by the learned single Judge on November 4, 1969 and the order of the State Transport Appellate Tribunal was quashed.
When the matter went before the Letters Patent Bench, it was observed that in view of the fact that only the grantee of the Regional Transport Authority had a valid permit, it was not possible to grant any permit to B who was recognised by the State Transport Appellate Tribunal.
They followed an earlier ruling of the court and restricted the grant pending disposal of the Letters Patent appeal to the grantee of the Regional Transport Authority who alone was permitted to operate on the route.
It appears that only one operator could be allowed on this route, because of a section 47(3) determination.
In these petitions for special leave which are ex facie against the orders made in interlocutory proceedings, the attempt is to get the permits restored to B.
It is claimed that this involves a question of jurisdiction and that question is whether the High Court could recognise A the grantee of the Regional Transport Authority when his permit had been cancelled by the State Transport Appellate 497 Tribunal.
We think that these are matters into which this Court cannot be invited to go under article 136 of the Constitution, because the appeal itself is pending before the High Court and what the High Court has done is to give effect to the order of the learned single Judge.
In other words, the Letters Patent Bench has not attempted to pass any special order of its own staying the operation of the decision of the learned single Judge.
We think it would be wrong for us to interfere at this stage.
It may be that the question may come up in some other form before us when the appeals from the Letters Patent decision are brought before this Court.
If and when this happens, we may find it convenient to express our opinion on the question of jurisdiction of the High Court to go into such matters in appeal or in original writ petitions.
Beyond this, we do not wish to express any opinion, one way or the other, at this stage.
We accordingly order the dismissal of these special leave petitions, reserving to the petitioners the right to raise such questions as may legitimately be raised when they choose to file appeals against the decision of the Letters Patent Bench.
Stay granted by this Court is vacated.
V.P.S. Special Leave Petitions dismissed.
|
The Regional Transport Authority granted to the respondent a permit to operate a bus on a route.
The grant was set aside by the State Transport Appellate Tribunal on appeal filed by another applicant.
The order of the S.T.A. was quashed by a Single Judge of the High Court in a writ petition filed by the grantee from the R.T.A.
When the matter went before the Letters Patent Bench it was observed that since only the grantee from the R.T.A. had a valid permit it was not possible to grant any permit to the appellant before the S.T.A. pending the disposal of the Letters Patent Appeal as only one operator could be allowed on the route.
In the petition for special leave to appeal to this Court under article 136 against the interlocutory order, on the question of the jurisdiction of the High Court to recognise the grantee from the R.T.A. when his permit was cancelled by the S.T.A., HELD: This Court would not go into the matter at this stage because the appeal itself was pending before the High Court and all that the Bench had done was to give effect to the order of the Single Judge pending disposal of the appeal.
[497 A B]
|
ivil Appeal No. 2873 of 1987.
From the Judgment and Order dated 5.8.1987 of the Punjab & Haryana High Court in Civil Revision No. 2209 of 1979.
Harbans Lal, S.K. Mehta, Dhruv Mehta and Aman Vachher for the Appellant.
Rajinder Sachhar, K.C. Dua and Ms. Manju Chopra for the Respondent.
N.S. Das Behl, (Not present) The Judgment of the Court was delivered by 425 RANGANATH MISRA, J.
This is a tenant 's appeal by special leave challenging his eviction from a business premises located at Jallandhar.
Under a rent note (Exh.
A I), the appellant had taken the premises on rent from the respondent landlord.
The use to which the premises was intended to be put was running of a cycle and rickshaw repairing shop.
As far as relevant, on the allegation that the tenant had put the premises to different use, an application for his eviction was made under section 13(2)(ii)(b) of the East Punjab Urban Rent Restric tion Act, 1949.
The Controller found that the appellant had continued the business of repairing of cycles and rickshaws but side by side had for a period of about seven months been selling televisions in the premises but he stopped the same as it was not viable.
According to the Controller, this did not constitute user for a purpose other than that for which the premises was leased and he accordingly rejected the peti tion.
The appellate authority at the landlord 's instance held that the statutory condition was satisfied and granted eviction.
The High Court when moved by the tenant declined to interfere.
The short question that arises for consideration is whether there has been a violation of the terms of tenancy by using the premises for a purpose other than that for which the premises had been leased.
The tenant did not dispute that he had taken the premises for running a repair shop of cycles and rickshaws.
In his statement he said that he had commenced the business of selling the televisions side by side in view of the slump in the cycle and rickshaw repairing business.
He also accepted the position that he had not obtained the consent of the landlord when he started the TV business.
The landlord has accepted the position that in the rent note it was not written that the respondent would not do any business in the shop in dispute except the cycle or rickshaw repairs.
On these facts it has now to be decided as to whether the premises has been used for a purpose other than that for which it had been leased.
Reliance was placed on the Full Bench decision of the Punjab High court in Des Raj vs Sham Lal, AIR 1980 P & H 229 where the question for consideration was as to whether when the lease was for the purpose of a shop without anything more specific, user thereof as a godown amounted to change of user.
The High Court in course of the discussion in the judgment rightly drew the distinction between resi 426 dential and non residential premises and also classified non residential buildings into known categories like shop, godown, restaurant, cinema, hotel etc.
In course of the discussion the Full Bench referred to the decision of this Court in Moti Ram vs State of Madhya Pradesh, ; and came to the conclusion that when the letting out purpose was location of a shop and it .was exclusively used as a godown, it amounted to a change of user.
Not much of support is directly available for the resolution of the present dispute from that judgment.
Reliance was also placed on a decision of this Court in the case of Mohan Lal vs Jai Bhagwan, ; where the very provision of the East Punjab Act was considered in a case of eviction.
The decision of this Court in the case of Maharaj Kishan Kesar vs Milkha Singh, (C.A. No. 1086/64 decided on November 10, 1965) was referred to therein.
That again was a decision under the very Act and the dispute related to the allegation of change of user when petrol was sold as an allied business of the avowed purpose of locating the workshop.
The Court found.
that location of a petrol pump could not be regarded as not being a part of motor workshop business.
Rightly, our learned brother Mukharji, J. indicated that the ratio in Maharaj Kishan Kesar 's case did not provide any guideline of general nature.
What was said in pars 9 of his judgment is perhaps useful.
Our learned Brother quoted the observations of Lord Diplock, J. in Duport Steels Ltd. vs Sirs, and said: "While respectfully agreeing with the said observations of Lord Diplock, that the; Par liament Legislates to remedy and the judiciary interprets them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of the time.
In the background of the purpose of rent legisla tion and inasmuch as in the instant case the change of the user would not cause any mis chief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which at tracted the mischief of section 13(2)(ii)(b).
" On that conclusion, the order of eviction was reversed.
Letting of a premises can broadly be for residential or commercial purpose.
The restriction which is statutorily.
provided in section 13(2)(ii)(b) of the Act is obviously one to protect the interests of the landlord .and is intended to restrict the use of the landlord 's premises 427 taken by the tenant under lease.
It is akin to the provision contained in section 108(0) of the dealing with the obligations of a lessee.
That clause pro vides: 'The lessee may use the property and its products, if.
any, as a person of ordinary prudence would use then if they were of his own; but be must not use or permit another to use the property for a purpose other than that for which it was leased . ' A house let for residential purpose would not be available for being used as a shop even without structural alteration.
The concept of injury to the premises which forms the foundation of cl.
(o) is the main basis for providing cl.(b) in section 13(2)(ii) of the Act as a ground for the tenant 's eviction.
The Privy Council in U Po Naing vs Burma Oil Co., AIR 1929 PC 108 adopted the same considera tion.
The Kerala High Court has held that premises let out for conducting trade in gold if also used for a wine store would not amount to an act destructive of or permanently injurious to the leased property Simi larly, the Bombay High Court has held that when the lease deed provided for user of the premises for business of fret work and the lessee used the premises for business in plas tic goods, change in the nature of business did not bring about change of user as contemplated in section 108(o) of the The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consider ation.
Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable.
In this case, the premises was let out for running of a repair shop.
Along with the repair business, sale of televi sions was temporarily .carried on.
We do not think this constituted a change of user within the meaning of section 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant.
The appeal is allowed and the order of eviction passed by the appellate authority and affirmed by the High Court is vacated and the order of the Controller is restored.
Parties are directed to bear their own costs throughout.
T.N.A. Appeal allowed.
|
The appellant had taken the premises on rent from the respondent landlord for running a cycle and rickshaw repair ing shop.
In the rent note there was no stipulation that the appellant would not do any business in the shop except the cycle or rickshaw repairs.
Along with the repair business the appellant temporarily carried on sale of televisions also in the premises.
The landlord filed an application for eviction under section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 alleging that the tenant had put the premises to different use.
The Rent Controller rejected the application by holding that the temporary sale of televisions did not constitute user for a purpose other than that for which the premises was leased.
On an appeal filed by the landlord the appellate authority granted eviction by holding that the statutory condition was satisfied.
The appeal filed by the tenant against the decision of the appellate authority was dis missed by the High Court.
Hence this appeal by the tenant.
Allowing the appeal and setting aside the order of eviction, HELD: Letting of a premises can broadly be for residen tial or commercial purpose.
The restriction which is statu torily provided in section 13(2)(ii)(b) of the Act is obvi ously one to protect the interests of the landlord and is intended to restrict the use of landlord 's premises taken by the tenant under lease.
It is akin to the provision con tained in section 108(o) of the dealing with the obliga 424 tions of a lessee.
A house let for residential purpose would not be available for being used as a shop even without structural alteration.
The concept of injury to the premises which forms the foundation of clause (o) is the main basis for providing clause (b) in section 13(2)(ii) of the Act as a ground for the tenant 's eviction.
[426H, 427A B] The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consider ation.
Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable.
In the instant case, the premises was let out for running of a repair shop.
Along with the repair busi ness, sale of televisions was temporarily carried on.
This did not constitute a change of user within the meaning of section 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant.
[427E, F] Mohan Lal vs Jai Bhagwan, ; , applied.
Des Raj vs Sham Lal, A.I.R. 1980 P & H 229, held inapplica ble.
Moti Ram vs State of Mahdya Pradesh, A.I.R. 1978 S.C. 1594; Maharaj Krishan Kesar vs Milkha Singh, Civil Appeal No. 1086 of 1964 decided on November 10, 1965 (S.C.); Dup port Steel Ltd. vs Sirs, ; U.P. Naing vs Burma Oil Co., A.I.R. 1929 P.C. 108; Raghavan Pillai vs Sainaba Beevi, [1977] Kerala L.T. 417 and Dattatraya vs Gulab Rao, , referred to.
|
Civil Appeal No. 3435 of 1984 etc.
From the Order dated 24.7.1984 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED/SB/A.664/84 D. K.K. Venugopal, Soli J. Sorabji, Bishambar Lal, H.K. Kochar I.L. Beri, P.K. Chatterjee, Rajesh Agarwal and Arun Kr Sinha for the Appellants.
G. Das, A. Subhashini, P.P. Singh, C.V. Subba Rao and Sushma Ratha for the Respondents.
130 The Judgment of the Court was delivered by PATHAK, J.
The question raised in the appeal filed by Atul Glass Industries (Pvt.
) Ltd. (C.A. No. 3435 of 1984) under section 35L(b) of the is whether glass mirrors fall under Tariff Item No. 23A(4) or Tariff Item No. 68 of the First Schedule to the .
That is also the question raised in the Transferred Cases Nos. 349, 350 and 355 of 1983 filed by the Hindustan Safety Glass Works Ltd., with an additional question whether the glass screens fitted in motor vehicles as wind screens, rear screens and window screens fall under Tariff Item No. 23A(4) or Tariff Item No. 34A or Tariff Item No. 68.
The Appellant, Atul Glass Industries (Pvt.) Ltd., carries on the business of manufacturing and selling glass mirrors.
It purchases duty paid glass sheets from the manufacturers of glass, and either in their original size or after reducing them to smaller sizes puts the glass sheets through a process of treatment.
The glass pieces are buffed with the aid of buffing machines in order to improve the surface of the glass and prepare it for mirror processing.
The glass is fed into an automatic silvering conveyor line where it passes through a stage of mechanical cleaning and polishing with the aid of nylon bristle brushes so that the glass surface is rendered free of scratches, dust particles and carbohydrates.
The glass is then washed mechanically with the aid of cylindrical brushes using distilled water as a washing medium.
Thereafter the glass surface is sensitised by chemical compounds such as stannous chloride, and rinsed with distilled or demineralised water to remove excess of chemicals.
The sensitised glass is passed through a chamber where silver in liquid form with the aid of reducing solutions is applied as a very thin and uniform adherent reflective film on the surface of the glass.
The silver coating, being of malleable metal, is protected by a coating of copper in the form of a thin metal deposit with the aid of an electromagnetic spray system.
The excess of copper and acidic solutions are rinsed away with the distilled or demineralised water.
Subsequently hot air is employed for the purpose of drying, and the humidity is removed completely with the aid of an infra red heating system.
After thorough drying, the silver and copper coatings are protected with four coats of special mirror backing paint applied with the aid of a roller coating machine in four stages.
The paint is baked in the baking conveyor after thorough drying.
The other side of the mirror is 131 mechanically cleaned.
The mirror thus produced is finally sent for quality control inspection.
Cut glass is employed in the case of decorative mirrors.
The cut glass is shaped with the aid of cutting lathemachines before subjecting it to the silver process.
Edge grinding or bevelling and hole drilling is done, if required, after the mirror has been manufactured.
Before the budget of 1979, Tariff Item No. 23 relating to 'glass and glass ware ' prescribed the different rates of duty in respect of (1) sheet glass and plate glass, (2) laboratory glass ware, (3) glass shells, glass globes and chimney for lamps and lantern, and (4) 'other glassware including table ware '.
During the period following the budget of 1979 which is the period which concerns us, Tariff Item No. 23A relating to glass and glass ware specified the rates of duty in respect of (1) flat glass, which included sheet glass, wired glass and rolled glass whether in the form of plate glass, figured glass or in any other form, (2) laboratorty glass ware, (3) glass shells, glass globes and chimney for lamps and lantern and (4) 'other glass and glass ware including table ware '.
Tariff Item No. 68 is of residuary character and relates to "all other goods not elsewhere specified," but excluding alcohol, opium and certain other goods specified therein.
The rate of duty is higher if the product falls under Tariff Item No. 23A(4) than if it fell under Tariff Item No. 68.
The appellant submitted a classification list showing glass mirror as covered by duty under Item No. 68.
Before March 1, 1979 glass mirrors were treated as exempt from duty as they were manufactured from duty paid glass.
The exemption was cancelled from March 1, 1979.
Simultaneously Tariff Item No. 23A(4) underwent an amendment, as mentioned earlier, by the substitution of words 'other glass and glass ware ' for the words 'other glass ware '.
On January 28, 1980 the Excise Authorities issued a notice calling upon the appellant to take out an L 4 Licence on the ground that glass mirrors were classifiable as 'other glass ' within the meaning of Tariff Entry No. 23A(4) as a product now dutiable from March 1, 1979.
The appellant filed a writ petition in the Delhi High Court and simultaneously preferred an appeal before the Collector (Appeals).
The High Court disposed of the writ petition without deciding the question of liability to duty on its merits, observing that the appellant should pursue its appeal before the Collector (Appeals).
On January 24, 1984 the appeal was allowed by the Collector (Appeals).
He held that Tariff Item No. 68 applied to glass mirrors.
The Revenue appealed to the Customs, Excise and Gold (Control) Appellate Tribunal.
132 The Appellate Tribunal allowed the appeal and reversed the decision of the Collector (Appeals) holding that Tariff Item No. 23A(4) was attracted.
The Appellate Tribunal held that glass mirrors should be classified as 'glass ware '.
And now this appeal.
It appears from the record before us that the true classification of glass mirrors has been the subject of fluctuating opinion among the higher echelons of the Revenue.
Opinion has varied from time to time.
Tariff Advice No. 60 of 1979 dated December 18, 1979 issued by the Central Board of Excise and Customs took the stand that glass mirrors could be described as glass ware and therefore, merited classification under Tariff Item No. 23A(4).
Subsequently on doubts being raised regarding such classification, the Central Board of Excise and Customs considered the matter further, and by Tariff Advice No. 61 of 1980 dated September 27, 1980 opined that glass mirrors would fall under Tariff Item No. 68 in as much as while glass sheets were used as raw material the subsequent processing applied thereto gave rise to a different commercial product altogether, the utility of the glass being reduced to a mere medium.
This was, of course, subject to the condition that the glass sheets, out of which the glass mirrors were prepared, had paid appropriate duty under Tariff Item No. 23A before being employed in the manufacture of mirrors.
The controversy was re opened later, and the Central Board of Excise and Customs reverted to its original understanding of the classification for the product.
By Tariff Item No. 41 of 1981 dated May 7, 1981 it pointed out that glass mirrors had been classified under the Brussels Tariff Nomenclature as "glass and glass ware" and taking the view that after undergoing silvering a glass mirror still remained glass it advised that glass mirrors should be treated as liable to excise duty under Tariff Item No. 23A(4) as 'other glass and glass ware '.
It has been noticed that the Superintendent of Central Excise called upon the appellant to take out an L 4 Licence on the footing that glass mirrors fell under Tariff Item No. 23A(4), that on appeal, the Collector (Appeals) reached the conclusion that it was not open to such classification but fell under the residuary Tariff Item No. 68, and that the Appellate Tribunal thereafter reversed the Collector (Appeals) and upheld the Superintendent of Central Excise.
It is in this uncertain climate of opinion that the question calls for decision by this Court.
A broad description of the process through which a glass sheet passes has been detailed earlier.
It indicates clearly to our mind that the original glass sheet undergoes a complete transformation when it 133 emerges as a glass mirror.
What was a piece of glass simpliciter has now become a commercial product with a reflecting surface.
Into the process of transformation have gone successive stages of processing with the aid of chemicals such as stannous chloride, silver nitrate and copper coating besides an entire range of physical proscesses involving polishing, washing, coating, drying, varnishing, evaporation and cooling.
The evolved product is completely different from the original glass sheet.
What was once a glass piece in its basic character has no longer remained so.
It has been reduced to a mere medium.
That is clear if regard is had to the fundamental function and qualities of a glass mirror.
The power to reflect an image is a power derived not from the glass piece but principally from the silvering and other processes applied to the glass medium.
If any part of the coating is scratched and removed, that particular area of the glass mirror will cease to be glass mirror.
That simple test demonstrates the major importance attributable to the chemical deposit and coating which constitute a material component of a glass mirror.
It is not mandatory that a mirror employed for the purpose of reflecting an image should have a glass base.
Copper mirrors have been known from the dawn of history.
In the modern age, acrylic sheets are sometimes used instead of glass for manufacturing mirrors.
It is apparent, therefore, that a glass mirror cannot be regarded as a glass.
For the same reason, it cannot be classified as 'glass ware ', for 'glass ware ' means merchandise made of glass and understood in its primary sense as a glass article.
A glass bowl, a glass vase, a glass tumbler, a glass table top and so on are all articles in which the primary component is glass.
They are nothing more and nothing less.
Any treatment of an ornamental nature applied to such articles does not derogate from their fundamental character as glass articles.
It is quite the contrary in the case of a glass mirror.
The case is more akin to that of carbon paper.
A sheet of paper with a carbon coating thereon is employed for the purpose of producing copies of the original.
The paper is a mere base while the function is performed by the carbon coating.
This Court held in State of Uttar Pradesh vs M/s Kores (India) Ltd. ; , that carbon paper could not be described as paper.
It referred to the functional difference between the two, and pointed out that while paper would be understood as meaning a substance which was used for writing or printing or drawing on or for packing or decorating or covering the walls, carbon paper, which is manufactured by coating the tissue paper with a thermosetting ink based mainly on wax, non drying oils, pigments and dyes could not be so described.
134 The test commonly applied to such cases is: How is the product identified by the class or section of people dealing with or using the product? That is a test which is attracted whenever the statute does not contain any definition.
Porritts and Spencer (Asia) Ltd. vs State of Haryana [1978] (42) S.T.C. 433.
It is generally by its functional character that a product is so identified.
In Commissioner of Sales Tax, U.P. vs Macneill & Barry Ltd., Kanpur ; This Court expressed the view that ammonia paper and ferro paper, used for obtaining prints and sketches of site plans could not be described as paper as that word was used in common parlance.
On the same basis the Orissa High Court held in State of Orissa vs Gestetner Dluplicators (P) Ltd. [1974] (33) S.T.C. 333 that stencil paper could not be classified as paper for the purposes of the Orissa Sales Tax Act.
It is a matter of common experience that the identity of an article is associated with its primary function.
It is only logical that it should be so.
When a consumer buys an article, he buys it because it performs a specific function for him.
There is a mental association in the mind of the consumer between the article and the need it supplies in his life.
It is the functional character of the article which identified it in his mind.
In the case of a glass mirror, the consumer recalls primarily the reflective function of the article more than anything else.
It is a mirror, an article which reflects images.
It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing the mirror.
The basic or fundamental character of the article lies in its being a mirror.
It was observed by this Court in Delhi Cloth and General Mills Co. Ltd. vs State of Rajasthan & Ors.
; Which was a case under the Sales Tax law: "In determining the meaning or connotation of words and expressions describing an article or commodity the turnover of which is taxed in a sales tax enactment, if there is one principle fairly well settled it is that the words or expression must be construed in the sense in which they are understood in the trade, by the dealer and the consumer.
It is they who are concerned with it, and it is the sense in which they understand it that consitutes the definitive index of the legislative intention when the statute was enacted.
" That was also the view expressed in Geep Flashlight Industries Ltd. vs Union of India and Others.
[1985]) (22) E.L.T. 3.
Where the goods are not marketable that principle of construction is not attract 135 ed.
Indian Aluminium Cables Ltd.v.
Union of India and Others.
[1985]) (3) S.C.C. 284.
The question whether thermometers, lactometers, syringes, eye wash glasses and measuring glasses could be described as 'glass ware ' for the purpose of the Orissa Sales Tax Act, 1947 was answered by the Orissa High Court in State of Orissa vs Janta Medical Stores [1976]) (37) S.T.C. 33.
In the negative.
To the same effect is the decision of this Court in Indo International Industries vs Commissioner of Sales Tax, Uttar Pradesh, ; Where hypodermic clinical syringes were regarded as falling more accurately under the entry relating to "hospital equipment and apparatus" rather than under the entry which related to "glass wares" in the U.P. Sales Tax Act.
Reliance was placed by the Revenue on Commissioner of Sales Tax, U.P. vs Banaras Bead Manufacturing Co. [1970])(25) S.T.C. 100.
Where the Allahabad High Court held that glass beads could be described as 'glass ware for the purpose of a Notification issued under the U.P. Sales Tax Act.
The decision of the High Court rested on the manner in which the contextual setting was altered in successive and different Notifications promulgated under the U.P. Sales Tax Act, indicating the content of the expression as developed through successive Notifications.
Our attention has been drawn on behalf of the Revenue to the circumstance that glass mirrors have been classified as 'glass and glass ware ' in Chapter 70 of the Brussels Tariff Nomenclature.
It seems to us that this circumstance can hardly advance the case of the Revenue, because the First Schedule to the Central Execises and Salt Act does not appear to have been modelled on the Brussels Tariff Nomenclature.
There is nothing to show that the Tariff Items were classified in the Schedule on the basis of the Brussels Tariff Nomenclature.
It was when the was enacted that the First Schedule to that Act was framed in accordance with the Brussels Tariff Nomenclature, evidently because the progress made in industrial growth and economic development, and the substantial changes in the composition and pattern of India 's external trade called for the need to modernise and rationalise the nomenclature of India 's Tariff in line with contemporary conditions.
The glass mirrors were still not specifically mentioned under the .
They are now being brought in as such by the Customs Tariff Bill, 1985.
136 It is pointed out that glass mirrors have been classified by the Indian Standards Institution as "glass and glass ware" in the glossary of terms prepared by it in respect of that classification.
That, to our mind, furnishes a piece of evidence only as to the manner in which the product has been treated for the purpose of the specifications laid down by the Indian Standards Institution.
It was a test employed by this Court in Union of India vs Delhi Cloth & General Mills, [1963] Supp.
(1) S.C.R. 586, but was regarded as supportive material only of the expert opinion furnished by way of evidence in that case.
The considerations to which we have adverted should, in our opinion, have greatly weighed in deciding the question raised in this appeal.
So also in Union Carbide Co. Ltd. vs Assistant Collector of Central Excise and Others, , the description set forth in the publications of the Indian Standards Institution was regarded as a piece of evidence only.
There were other more tangible considerations which weighed with the Court in reaching its conclusions.
We are firmly of the view that glass mirrors cannot be classified as 'other glass and glass ware ' set forth in Tariff Item No. 23A(4), and must therefore fall under the residuary Tariff Item No. 69.
An additional point arises in M/s Hindustan Safety Glass Works Ltd. (Transfer Cases Nos. 349, 350 and 355 of 1983).
The manufacturers of motor vehicles place orders with the appellant for the manufacture of screens for fitting in motor vehicles.
They are commonly known as wind screens, rear screens and door screens.
The screens are manufactured according to the specific shape and measurements indicated in the orders, for different vehicles require screens of different shapes and measurements.
The screen is manufactured from sheet glass.
It is first given shape and size according to the specifications contained in the order and thereafter subjected to the process of toughening.
It is a fabricated article.
The Superintendent of Central Excise called upon the petitioner to pay excise duty on the basis that the screens fell under Tariff Item No. 23A(4) relating to 'glass and glass ware '.
The petitioner filed writ petitions in the Allahabad High Court challenging the view taken by the Excise authorities.
The question in these cases is whether the screens manufactured by the petitioners can be classified under Tariff Item No. 23A(4) or Tariff Item No. 34A or Tariff Item No. 68.
Prior to February 28, 1979 Tariff Item No. 34A, which was 137 headed Item No. 34A Motor Vehicle Parts, related to "Parts and accessories not elsewhere specified, of Motor vehicles and Tractors, including Trailers", and the rate of duty prescribed was 20% ad valorem.
Under Rule 8 of the Central Excises and Salt Rules, the Central Government issued Notification No. M.F. (D.R.I) 99/71 dated May 29, 1971, as amended by a subsequent Notification, exempting parts and accessories of motor vehicles and tractors falling under Tariff Item No. 34A other than those specified in the Schedule annexed to the Notification, from the whole of the duty of excise leviable thereon.
The Schedule annexed to the Notification did not mention the screens manufactured for motor vehicles.
The parts and accessories specifically mentioned in the Notification to the Schedule were covered by a Notification No. 101/71 C.E. dated May 29, 1971 as amended subsequently, by which the Central Government exempted under Rule 8 parts and accessories of motor vehicles, provided it was establishd to the satisfaction of the Collector of Central Excise that the parts were intended to be used as original equipment parts by the manufacturers of motor vehicles and tractors falling under Tariff Item No. 34A. The Finance Bill of 1979 introduced changes in Tariff Item No. 34A. Tariff Item No. 34A now spoke of 'parts and accessories of motor vehciles and tractors, including trailers, the folowing namely '. and here followed 15 parts and accessories.
The screens manufactured by the petitioner did not figure in that list.
Until the enactment of the Finance Bill of 1979, the commodities manufactured by the petitioner would have fallen within the ambit of Tariff Item No. 34A.
But after the introduction of the Finance Bill 1979 the Central Government issued Notification No. 76 of 1979 C.E. dated March 1, 1979 under Rule 9, whereby parts and accessories of motor vehicles and tractors which had not been specified in Tariff Item No. 34A but which fell under that Tariff Item were exempted from so much duty of excise leviable thereon as was in excess of 8% ad valorem.
Two more Notifications were issued, No. 74/79 C.E. dated March, 1 1979 and No. 75/79 C.E. dated March 1, 1979.
By these Notifications parts and accessories of motor vehicles and tractors falling under Tariff Item No. 34A were exempted from the whole of the duty of excise leviable thereon provided the said parts or accessories were intended to be used in the manufacture of assembled components of motor vehicles and tractors and such assembled components were used as original equipment parts by the manufacturers of those vehicles and such parts and accessories which were intended to be used as original equipment parts by such manufacturers.
On the enforcement of the Finance Act 1979 the ambit of Tariff Item No. 34A became restricted to the 15 specified commodities.
The 138 commodities manufactured by the petitioner did not fall within the ambit of Tariff Item No. 34A.
It is case of the petitioner that the commodities manufactured by it fall within the ambit of the residuary Item No. 68 of the First Schedule to the .
Prior to the enforcement of the Finance Act, 1979 the Central Government had, under Rule 8, issued Notification No. 166 C.E. dated April 19, 1979 whereby all excisable goods on which the duty of excise was payable and in the manufacture of which parts and accessories of motor vehicles falling under Item No. 34A had been used were exempted from so much of the duty of the excise leviable thereon as was equivalent to the duty of excise paid by the said parts and accessories.
Another Notification No. 167/79 dated April 19, 1979 was issued under Rule 3 whereby parts and accessories of motor vehicles falling under Item No. 34A and intended for use in further manufacture of excisable goods were exempted from the whole of duty leviable thereon provided that the intended use was in a factory of a manufacturer different from the factory in which the said parts and accessories had been manufactured.
The Notifications did not apply to the 15 specified items.
Subsequently the two Notifications were amended by Notification No. 187/79 C.E. dated May 10, 1979 by deleting the reference to Tariff Item No. 34A and substituting for it Tariff Item No. 68.
According to the petitioner the result of these successive Notifications is that the parts and accessories of motor vehicles fall under Tariff Item No. 34A prior to the enforcement of Finance Act 1979 and after the enforcement of that Act they fall under Tariff Item No. 68 provided that the parts and accessories of motor vehicles do not find mention in Tariff Item No. 34A as amended by the Finance Act, 1979.
Upon the tests and having regard to the foregoing considerations which have appealed to us when considering the proper classification of glass mirrors, we have no hesitation in holding that the screens cannot be described as "glass or glass wares" under Tariff Item No. 23A(4).
No one dealing in or using the screens would consider them as "glass or glass ware".
They can only be considered as motor vehicle parts.
Even if we assume that they could fall under Tariff Item No. 23A(4) relating to 'glass and glass ware ' also, inasmuch as Tariff Item No. 34A is a special entry and Tariff Item No. 23A(4) is a general entry, the special must exclude the general and therefore also it is Tariff Item No. 34A which prevails and is attracted.
It is clear, however, that after the amendment of Tariff Item No. 139 34A by the Finance Act 1979 the scope of that Tariff Item is restricted to the 15 commodities specified therein.
That being so the screens manufactured by the petitioner merit classification in the residuary Tariff Item No. 68.
In the result, Civil Appeal No. 3435 of 1984 is allowed, the order dated July 24, 1984 of the Customs, Excise and Gold (Control) Appellate Tribunal is set aside and the Order dated January 24, 1984 of the Collector (Appeals) is restored.
In the Transfer Cases, we allow the writ petitions and direct that the glass mirrors and screens manufactured by the petitioner be treated to excise duty in the light of the observations made by us.
The parties shall bear their own costs.
A.P.J. Appeal and Petitions allowed.
|
The appellant carries on the business of manufacturing and selling glass mirrors.
Before March 1, 1979 glass mirrors were treated as exempt from duty as they were manufactured from duty paid glass.
This exemption was cancelled from March 1, 1979 and in Tariff Item 23A(4) the words 'other glass and glass ware ' were substituted for the words 'other glass ware '.
On January 28,1980, the Excise Authorities issued a notice calling upon the appellant to take out an L 4 Licence on the ground that glass mirrors were classifiable as 'other glass ' within the meaning of Tariff Entry No. 23A(4) of the First Schedule to the , as a product dutiable from March 1, 1979.
The appellant filed a writ petition in the High Court and simultaneously preferred an appeal before the Collector (Appeals).
The High Court disposed of the writ petition with the observation that the appellant should pursue its appeal before the Collector (Appeals).
The appeal was allowed by the Collector (Appeals) holding that Tariff Item No. 68 applied to glass mirrors.
On appeal by the Revenue, the Customs, Excise and Gold (Control) Appellate Tribunal reversed the decision of the Collector (Appeals)and held that Tariff Item No. 23A(4) was attracted, and that the glass mirrors should be classified as 'glass ware '.
In the transferred cases, the manufacturers of motor vehicles place orders with the petitioner for the manufacture of screens for fitting in motor vehicles, commonly known as wind screens, rear 127 screens, door screens, and these were to be manufactured according to the specific shapes and measurements indicated in the orders for the different vehicles.
The Superintendent of Central Excise called upon the petitioner to pay excise duty on the basis that these screens fell under Tariff Item No. 23A(4) relating to 'glass and glass ware '.
The petitioner filed writ petitions in the High Court challenging the view taken by the Excise Authorities.
On the questions: "Whether glass mirrors fall under Tariff Item No. 23A(4) or Tariff Item No. 68 and whether glass screens fitted in motor vehicles as wind screen, rear screens and window screens fall under Tariff Item No. 23A(4) or Tariff Item No. 34A or Tariff Item No. 68 of the First Schedule to the ", allowing the Appeal and the Writ Petitions in the transferred cases, the Court, ^ HELD: (1) Glass mirrors cannot be classified as 'other glass and glass ware ' set forth in Tariff Item No. 23A(4), and must therefore fall under the residuary Tariff Item No. 68.
[132F G] (2) The original glass sheet undergoes a complete transformation when it emerges as a glass mirror.
What was a piece of glass simpliciter has now become a commercial product with a reflecting surface.
Into the process of transformation have gone successive stages of processing.
The evolved product is completely different from the original glass sheet.
What was once a glass piece in its basic character has no longer remained so.
It has been reduced to a mere medium.
That is clear if regard is had to the fundamental function and qualities of a glass mirror.
The power to reflect an image is a power derived not from the glass piece but principally from the silvering and other processes applied to the glass medium.
If any part of the coating is scratched and removed, that particular area of the glass mirror will cease to be glass mirror.
That simple test demonstrates the major importance attributable to the chemical deposit and coating which constitute a material component of a glass mirror.
It is not mandatory that a mirror employed for the purpose of reflecting an image should have a glass base.
Copper mirrors have been known from the dawn of history.
Now acrylic sheets are sometimes used instead of glass for manufacturing mirrors.
Therefore, a glass mirror cannot be regarded as a glass.
For the same reason, it cannot be classified as a 'glass ware ', for 'glass ware ' 128 means merchandise made of glass and understood in its primary sense as a glass article.
A glass bowl, a glass vase, a glass tumbler, a glass table top and so on are all articles in which the primary component is glass.
They are nothing more and nothing less.
Any treatment of an ornamental nature applied to such articles does not derogate from their fundamental character as glass articles.
It is quite the contrary in the case of a glass mirror.
[132H; 133A F] (3) It is a matter of common experience that the identity of an article is associated with its primary function.
It is only logical that it should be so.
When a consumer buys it, it is because it performs a specific function for him.
There is a mental association in the mind of the consumer between the article and the need it supplies in his life.
It is the functional character of the article which identifies it in his mind.
In the case of a glass mirror, the consumer recalls primarily the reflective function of the article more than anything else.
It is a mirror, an article which reflects images.
It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing the mirror.
The basic or fundamental character of the article lies in its being a mirror.
[134C E] State of Uttar Pradesh vs M/s. Kores (India) Ltd. ; , Porritts and Spencers (Asia) Ltd. vs State of Haryana [1978] (42) S.T.C. 433, Commissioner of Sales Tax U.P. vs Macneill & Barry Ltd. Kanpur, ; , Delhi Cloth and General Mills Co. Ltd. vs State of Rajasthan & Ors.
[1980] (3) S.C.R.1109, Geep Flashlight Industries Ltd. vs Union of India and Others [1985] (22) E.L.T.3, Indian Aluminium Cables Ltd. vs Union of India and Others.
; and Indo International Industries vs Commissioner of Sales Tax.
Uttar Pradesh, ; relied upon.
State of Orissa vs Gestetner Duplicators (P) Ltd. [1974] (33) S.T.C. 333 and State of Orissa vs Janta Medical Stores [1976] (37) S.T.C. 33 approved.
Commissioner of Sales Tax, U.P. vs Banaras Bead Manufacturing Co. [1970] (25) S.T.C. 100 distinguished.
(4) Classification of glass mirrors as 'glass and glass ware ' in Chapter 70 of the Brussels Tariff Nomenclature, does not advance the case of the Revenue, because the First Schedule to the Central Excises 129 and Salt Act was not modelled on the Brussels Tariff Nomenclature.
There is nothing to show that the Tariff Items were classified in the Schedule on the basis of the Brussels Tariff Nomenclature.
It was when the was enacted that the First Schedule to that Act was framed in accordance with the Brussels Tariff Nomenclature.
The glass mirrors were still not specifically mentioned under the .
They are now being brought in as such by the Customs Tariff Bill 1985.
[135E H] (5) Classification of glass mirrors by the Indian Standards Institution as "glass and glass ware" in its glossary of terms furnishes a piece of evidence only as to the manner in which the product has been treated for the purpose of the specifications laid down by the Indian Standard Institution.
[136A B] (6) The screens used in motor vehicles cannot be described as "glass or glass wares" under Tariff Item No. 23A(4).
No one dealing in or using the screens would consider them as "glass or glass ware".
They can only be considered as motor vehicle parts.
Even if it is assumed that they could fall under Tariff Item No. 23A(4) relating to "glass and glass ware" also, in as much as Tariff Item No. 34A is a special entry and Tariff Item No. 23A(4) is a general entry, the special must exclude the general and therefore also it is Tariff Item No. 34A which prevails and is attracted.
[138F H] (7) After the amendment of Tariff Item No. 34A by the Finance Act 1979 the scope of that Tariff Item is restricted to the 15 commodities specified therein.
That being so the screens manufactured by the petitioner merit classification in the residuary Tariff Item No. 68.
[138H; 139A B]
|
(C) No. 1237 of 1988.
(Under Article 32 of the Constitution of India).
P.P. Rao and Ms. K Amreshwari, B. Rajeshwar Rao and Vimal Dave for the Petitioners.
V.R. Reddy, Addl.
Solicitor General, K. Madhaya Reddy, G. Prabhakar, B. Kanta Rao, A. Ranganathan and A.V. Rangam for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The petitioners and respondents 4 to 16 are District and Sessions Judges in the State of Andhra Pradesh.
The petitioners are direct recruits whereas the respondents were promoted from the Subordinate judiciary.
The respondents were initially appointed on temporary basis in the year 1978/1979 but they were made substantive in the year 1983.
The petitioners who were appointed substantively in the year 1981 claim seniority over the respondents by way of this petition under Article 32 of the Constitution of India.
The recruitment to the Andhra Pradesh Higher Judicial Service (the Service) is governed by the Rules called "The Andhra Pradesh State Higher Judicial Service Special Rules" (the Special Rules).
Rules 1, 2, 4 and 6 of the Special Rules which are relevant are as under: "Rule 1.
Constitution: The service shall consist of the following categories: 550 Category 1 : District and Sessions Judges 1st Grade.
Category II : District and Sessions Judges, Second Grade including Chairman, Andhra Pradesh Sales Tax Appellate Tribunal, Chief Judge, City Civil Court, Additional Chief Judge, City Civil Court, Chief Judge, Court of small Causes, Chief City Magistrate, Chairman, Tribunal for Disciplinary Proceedings, Presiding Officers, Labour Courts and Addl.
District and Sessions Judges.
Rules 2.
Appointment : (a) Appointment to Category 1 shall be made by promotion from Category II and appointment to Category II shall be made: (i) by transfer from among: (a) Sub Judges in the Andhra State Judicial Service; or in the Hyderabad State Judicial Service; and (ii) by direct recruitment from the Bar: Provided that 33 1/3% of the total number of permanent posts shall be filed or reserved to be filled by direct recruitment.
Explanation: In the determination of 33 1/3% of the total number of permanent posts, fractions exceeding one half shall be counted as one and other fractions shall be disregarded.
(b) All promotions shall be made on grounds of merit and ability, seniority being considered only when merit and ability are approximately equal.
Rule 4.
Probation: Every person appointed to Category II otherwise than by transfer, shall, from the date on which he joins duty be on probation for a total period of one year on duty.
Rule 6.
Seniority: The seniority of a person appointed to Category 1 or Category 2 shall be determined with refer 551 ence to the date from which he was continuously on duty in that category.
" We may briefly notice the scheme of the Special Rules.
Rule 1 constitutes the Service.
Category 1 consists of District and Sessions Judges ' 1st grade and Category II consists of District and Sessions Judges Second grade.
Rule 1 does not say that Service shall consist of only permanent posts.
All the posts designated as District and Sessions Judges Second grade under Category II are part of the service under Rule 1.
In other words, as and when a post of District and Sessions Judge Second grade is created permanent or temporary it becomes part of the Service under Rule 1 of the special Rules.
Rule 2 provides the method of appointment.
Appointment to Category 1 is from Category II.
Appointment to Category II is from two sources.
By transfer from amongst the Subordinate Judges and by direct recruitment from the Bar.
Proviso to Rule 2 states that 33 1/3% of the total number of permanent posts shall be filled or reserved to be filled by direct recruitment.
All the posts of District and Sessions Judges Second grade are part of the Service but quota for the direct recruits is provided only in the permanent posts.
Rule 6 of the Rules provides for the fixation of seniority.
Under Rule 6 the seniority of persons appointed to Category 1 or Category II posts is fixed on the basis of continuous length of service in their respective posts.
On the plain reading of the Special Rules the salient features of the Service can be culled out as under: 1.
Rule 1 provides for the constitution of the Service.
All the posts of District and Sessions Judges Second grade created from time to time are part of the Service.
The natural corollary is that the Service consists of permanent as well as temporary posts.
The recruitment to Category II of the service is by transfer from amongst the Subordinate Judges and also by direct recruits from the Bar.
33 1/3% of the total number of permanent posts in Category II of the Service are to be filled by way of direct recruitment.
The seniority under Rule 6 is to be determined with reference to the date from which a person is continuously on duty.
Whether the person 552 is continuously on duty against a temporary post or permanent post is of no consequence.
A person is entitled to the fixation of his seniority on the basis of continuous length of service rendered either against permanent post or temporary post.
The three petitioners were appointed as District and Sessions Judges Second grade by direct recruitment on October 12, 1981.
Petitioners 1 and 2 joined service on October 23, 1981 and petitioner 3 on October 30, 1981.
Respondents 4 to 16 were appointed District and Sessions Judges Second grade by transfer from amongst the Subordinate Judges during the years 1978/79.
It is not disputed that permanent vacancies in their quota became available in the year 1983.
We, therefore, proceed on the basis that the petitioners were appointed substantive members of the Service earlier to respondents 4 to 16.
We may at this stage notice Rule 10(a)(i) of the Andhra Pradesh State and Subordinate Service Rules (the State Rules).
The State Rules are general rules which are applicable to all the services in the State of Andhra Pradesh.
Needless to say that to the extent the Special Rules are applicable to the Service the State Rules are excluded.
Rule 10(a)(i) of the State Rules is as under: "10.
Temporary appointment.
(a)(i) Where it is necessary in the public interest to fill emergently a vacancy in the post borne on the cadre of a service, class or category and if the filling of such vacancy in accordance with the rules is likely to result in undue delay, the appointing authority may appoint a person temporarily otherwise than in accordance with the said rules.
" Mr. P.P. Rao, learned counsel for the petitioners has raised the following contentions for our consideration: 1.
That the Service consists of only permanent posts under the Special Rules.
There is no provision under the Special Rules for adding temporary posts to the cadre.
The appointment of respondents to the posts of District and Sessions Judges Second grade on temporary basis can at best be treated under rule 10(a)(i) of the State Rules.
553 2.
The temporary service rendered by respondents.4 to 16 being outside the cadre cannot be counted towards seniority.
Proviso to Rule 2 and Rule 6 of the Special Rules have to be read together and doing so the permanent vacancies having been made available for respondents 4 to 16 in the year 1983 their service prior to that date cannot be counted towards seniority.
Before dealing with Mr. Rao 's contentions, we may notice two preliminary contentions raised by Mr. K. Madava Reddy, learned counsel for the respondents.
Mr. Madava Reddy has invited our attention to the judgment of a Division Bench of Andhra Pradesh High Court in T.H.B. Chalapathi and others vs High Court of Andhra Pradesh and others, Writ Petition Nos.
1968/82, 52/83 and 12282/85 decided on December 28, 1985.
Those writ petitions were filed before the Andhra Pradesh High Court by the direct recruits to Category II of the Service claiming seniority over the persons who were appointed to category 11 on temporary basis earlier to them.
Similar questions were raised as are being raised by Mr. P.P. Rao before us.
By a well reasoned judgment the High Court rejected all the contentions of the direct recruits and dismissed the writ petitions.
It is not disputed that Special Leave Petition No.1035 of 1986 against the said judgment was dismissed by this Court on January 30, 1988.
Mr. Madava Reddy plausibly contends that all the contentions which are being raised by the petitioners in this Court, having been rejected by the High Court and special leave petition against the judgment of the High Court having been dismissed by this Court the same cannot be agitated once over again.
Mr. Madava Reddy then contended that the petitioners were appointed in the years 1981 and since then till the year 1988 twelve seniority lists have been published showing the petitioners below respondents 4 to 16.
At no point of time they challenged the seniority lists in the Court.
Even when the writ petitions filed by Chalapathi and others were pending they did not intervene before the High Court.
The petitioners, according to Mr. Madava Reddy, are guilty of gross delay and latches and as such are not entitled to get relief by way of this petition under Article 32 of the Constitution of India.
554 We see considerable force in both the contentions raised by Mr. Madava Reddy.
We are, however, of the view that it would be in the larger interest of the Service to dispose of this petition on merits.
We see no force.
in the contention of Mr. Rao that the Service consists of only permanent posts under the Special Rules.
We have already interpreted Rule 1 to mean that the Service under the Special Rules consists of all the posts permanent and temporary which have been designated as District and Sessions Judges Second grade.
Even otherwise in the absence of any prohibition under the Special Rules the State Government can always create temporary posts as additions to the cadre.
Rule 10(a)(i) of the State Rules has no application to the Service which is governed by the Special Rules.
Rule 10(a)(i) provides for emergency appointments made on stop gap basis to meet a temporary exigency.
Apart from that the temporary appointments under the said Rules are made without following the procedure prescribed under the Rules governing the relevant service.
The appointments of respondents 4 to 16, on the other hand, Were made under Rule 2 of the Special Rules by the State Government in consultation with the High Court.
We are of the view that the Special Rules provide a complete scheme for the appointment and seniority of the members of the Service.
Rule 10(a)(i) of the State Rules has no application to the Service Constituted under the Special Rules.
We, therefore, reject the contention raised by Mr. Rao.
Having taken the view that the Service under the Special Rules consists of permanent as well as temporary posts the second contention of Mr. Rao looses its ground.
Temporary, posts of District and Sessions Judges Second grade being part of the Service the seniority has to be counted on the basis of length of service including the service against a temporary post.
The third contention of Mr. Rao is mentioned to be rejected in view of Rule 6 of the Special Rules.
Rule 6 of the Special Rules is in no way dependent on proviso to Rule 2 of the Special Rules.
Both are to be operative independently.
In the scheme of the rules the seniority rule is not dependent on the quota Rule.
Quota has been provided for the direct recruits only against permanent posts.
The seniority rule permits the counting of total period of service from the date a person is on duty against a 555 post in the category.
Even though, the petitioners were appointed substantively to the service earlier to respondents 4 to 16 but in view of Rule 6 they cannot be declared senior on the basis of continuous length of service against temp orary as well as permanent posts respondents 4 to 16 have been rightly given seniority above the petitioners.
We, therefore, find no force in any of the contentions raised by Mr. Rao.
The writ petition is consequently dismissed.
No costs.
N.V.K. Petition dismissed.
|
Recruitment to the Andhra Pradesh Higher Judicial Service is governed by "The Andhra Pradesh State Higher Judicial Service Special Rules".
Rule 1 constitutes the service.
Category 1 consists of District and Sessions Judges 1st grade and Category 11 consists of District and Sessions Judges, Second Grade.
Appointment to Category 1 is from Category 11.
Appointment to Category 11 is from two sources by transfer from amongst the Subordinate Judges and by direct recruitment from the Bar.
The petitioner were direct recruits whereas respondents 4 to 16 were promoted from the Subordinate judiciary.
The respondents were Initially appointed on temporary basis in the yew 1978/1979 but they were made substantive in the year 1983.
The petitioners who were appointed substantively in the year 1981 claimed seniority over the said respondents, and riled the Writ Petition under Article 32 of the Constitution of India for relief.
It was contended on their behalf that: (1) The Service consists of only permanent posts, there is no provision under the Special Rules for adding temporary posts to the cadre, consequently the appointment of respondents 4 to 16 to the post of District and Sessions Judges, Second Grade on temporary basis can at best be treated under Rule 10(a)(i) of the Andhra Pradesh State and Subordinate Service Rules.
(2) The temporary service rendered by the respondents 4 to 16 being outside the cadre cannot be counted towards seniority.
(3) Porviso to Rule 2 and Rule 6 of the Special Rules have to be read together, and as such the permanent vacancies having been made available for them in the year 1983 their service 548 prior to that date cannot be counted towards seniority.
The respondents constested the writ petition by contending that the petitioners were appointed in the year 1981 and since then till the year 1988, twelve seniority lists have been published showing the petitioners below respondents 4 to 16, and at no point of time they challenged the seniority lists in the Court.
Even when the Writ Petition T.H.B. Chalapathi & Ors.
vs High Court of Andhra Pradesh & Ors., was pending in the High Court they did not intervene.
The petitioners were thus guilty of gross delay and latches and as such are not entitled to get relief in the Writ Petition.
Dismissing the writ petition, this Court, HELD: 1.
(i) Rule 1 has to be interpreted to mean that the service under the Special Rules consists of all the posts permanent and temporary which have been designated as District and Sessions Judge Second Grade.
Even otherwise in the absence of any prohibition under the Special Rules, the State Government can always create temporary posts as addi tions to the cadre.
[554 B] (ii) Rule 10(a)(i) of the Andhra Pradesh State and Subordinate Service Rules has no application to the Andhra Pradesh Higher Judicial Service which is governed by the Special Rules.
Rule 10(a)(i) provides for emergency appointments made on stop gap basis to meet a temporary exigency.
Apart from that the temporary appointments under the said Rules are made without following the procedure prescribed under the Rules governing the relevant Service.
[554 C D] In the instant case, the appointments of respondents 4 to 16 were made under Rule 2 of the Special Rules by the State Government in consultation with the High Court.
The Special Rules provide a complete scheme for the appointment and seniority of the members of the Service.
[554 D] 2.
Temporary posts of District and Sessions Judges Second Grade being part of the Service, the seniority has to be counted on the basis of length of service including the service against the temporary posts.
[554 F] 3.
Rule 6 of the Special Rules is in no way dependent on the proviso to Rule 2 of the Special Rules.
Both are to be operative independently.
In 549 the scheme of the rules, the seniority rule is not dependent on the quota Rule.
Quota has been provided for the direct recruits only against permanent posts.
The seniority rule permits the counting of total period of service from the date a person is on duty against a post in the category.
[554 G H] In the instant case, even though the petitioners were appointed substantively to the service earlier to respondents 4 to 16 but in view of Rule 6 they cannot be declared senior on the basis of continuous length of service.
Respondents 4 to 16 have been rightly given seniority above the petitioners.
[555 A]
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N: Criminal Appeal No. 420 of 1974.
Appeal by Special Leave from the Judgment and Order dated 27 11 74 of the Allahabad High Court in Criminal Appeal No. 2646/73 and Referred No. 95/73.
Frank Anthony, E.C. Agarwala and A. T. M. Sampath; for the Appellants.
O.P. Rana; for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellants, Subhash and Shyam Narain, were convicted by the learned Civil and Sessions Judge, Farrukhabad under section 302 of the Penal Code on the charge that at about 9 a.m. on June 9, 1972 they committed the murder of one Ram Sanehi.
Subhash was sentenced to death and Shyam Narain to imprisonment for life.
The judgment of the trial court having been confirmed in appeal by the High Court of Allahabad, the two accused have filed this appeal by special leave of this Court.
588 The case of the prosecution is briefly as follows: on the morning of June 9, 1972 the deceased Ram Sanehi had gone to his field along with his son Bal Kishore and his daughter Kusuma Devi for eating Kharbuzas.
While they were returning from the field at about 9 a.m. the appellants, who were lying in wait near a culvert, suddenly accosted Ram Sanehi.
The Appeallent Subhash pointed the barred of his gun towards the chest of Ram Sanehi and said that since he, Ram Sanehi, was a witness against him in a complaint filed by Pooran Lal and since he was also doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive.
The appellant Shyam Narain was armed with a lathi.
Bal Kishore and Kusuma Devi pleaded with the appellants to spare their father but Shyam Narain asked Subhash not to delay the matter and finish Ram Sanehi quickly.
Subhash thereupon fired three shots from his double barrelled gun, the last of which misfired.
Ram Sanehi fell down, whereupon the appellants dragged him by his legs over a distance of 6 or 7 paces.
Bal Kishore and Kusuma Devi then raised an alarm whereupon Brij Bhusan, Shyam Lal Mangali Prasad and Jhabbo Singh Thakur reached the place of occurecnce and challenged the appellants.
Before running away, the appellant Subhash told his companion Shyam Narain that he on his own part was going to surrender before a court and that Shyam Narain should make his own arrangements.
Ram Sanehi died within about 10 minutes after receiving the injuries.
Bal Kishore first went to his house which is at about a distance of 120 yards from the scene of offence.
At about 12 o 'clock at noon he went to the Kamalgani police station and lodged his First Information Report (exhibit Ka 3).
S.I. Vishwanath Sharma who was posted as a 2nd officer at the police station recorded Bal Kishore 's complaint.
went to the scene of occurrence, prepared the inquest report and handed over the dead body for being sent for post mortem examination to the District Hospital at Farrukhabad which is about 10 miles away form the village of Kandharpur where the incident took place.
S.I Sharma took samples of earth from the place of occurrence an seized a mis fired cartridge which was lying concealed in the folds of the deceased 's Dhoti.
The Fard in that behalf is exhibit Ka 10 and the site plan is exhibit Ka 11.
The appellant Subhash surrendered before the Additional District Magistrate (Judicial) at Farrukhabad at about 4 p.m. on the very day.
The appellant Shyam Narain was arrested at about 2 40 p.m. on the same day under section 122 of the Railway Act for crossing The railines at Fatehgarh.
The appellants denied the charge that they had committed the murder of Ram Sanehi and stated that they were involved in the case due to enmity.
This defence has been rejected both by the Sessions Court and the High Court.
Before referring to the evidence in the case it has to be mentioned that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirma tion of the capital sentence under section 374 of the Code of Criminal 589 Procedure.
Time and again this Court has pointed out that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.
Under these sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court 's appraisal and assessment of that evidence.
From the long line of decisions which have taken this view it would be enough to refer to the decisions in Jumman and ors.
vs The State of Punjab, Ram Shanker Singh & ors.
vs State of West Bengal and Bhupendra Singh vs The State of Punjab.
The High Court has failed to show due regard to this well established position in law.
It did not undertake a full and independent examination of the evidence led in the case and it mainly contented itself with finding out whether the Sessions Court had in any manner erred in reaching the conclusion that the charge of murder levelled against the appellants was established beyond a reasonable doubt.
The High Court is right in saying that the main question in the case was whether Bal Kishore and Kusuma Devi who were examined as eye witnesses were truthful witnesses.
But then it did not subject their evidence to any minute scrutiny.
Impressed overbearingly by the circumstance that the Sessions Court "had the opportunity of observing the demeanour" of the witnesses, the High Court apparenty thought that such an opportunity gave to the Sessions Court 's judgment a mystical weight and authority, even though the learned Sessions Judge had not, in his judgment or while recording the evidence, made any special reference to the demeanour of the witnesses.
The High Court accepted the evidence of Ram Sanehi 's children by observing that there was no material contradiction ill their evidence and that certain statements in the F.I.R. afforded a guarantee that the two witnesses were present when their father was done to death.
We will now proceed to show how several significant circumstances either escaped the attention of the High Court or were not given their due and rightful importance.
First as to the manner in which S.I. Sharma conducted investigation into the case.
The offence took place at about 9 a.m. on June 9 and though the District Hospital at Farrukaabad was just 10 miles away, the dead body was not received at the hospital for nearly 24 hours after the incident had taken place.
The excuse offered by the prosecution that cartman was not willing to take the body at night is utterly flimsy because the Investigating officer could have easily made some alternate arrangement for despatchin the dead body for postmortem examination expeditiously.
With the dead body lying at the scene of offence for nearly 12 hours and thereafter at the police station for another 8 or 9 hours, it was easy enough for the witnesses to mould 590 their statements so as to accord with the nature of injuries.
The lnvestigating Officer did not make any note at all in the General Diary as to which witnesses were examined by him on the date of the occurrence which was obligatory upon him to do under paragraph 44 of the U.P. Police Act.
The time when the investigation was commenced and the time when it was concluded are not mentioned in the case diary.
The time when the Investigating officer reached the village and the time when he returned to the police station are also not noted in the case diary.
S.I. Sharma stated in his evidence that several important facts concerning the investigation were being stated by him in his evidence from memory.
He reached the scene of offence at about 2 30 p.m. but it was not until about 6 p.m. that he inspected the site.
The dead body was not removed from the scene of offence till about 9 p.m. and even that is open to grave doubt because the Investigating officer has admitted in his evidence that he was unable to say as to when the dead body was taken way from the spot and whether it was taken directly to the hospital or was detained somewhere on the way.
He was unable to say whether it was right or wrong that the dead body remained in the village till about 4 'O 'clock on the morning of the 10th.
Forty or fifty persons had gathered at the scene of offence when the Investigating officer arrived but the record of the case does not show that the statement of any of those persons was ever recorded.
In fact even the statement of Kusuma Devi was recorded late at night for which the reason is stated to be that her elder sister Pushpa Devi died of shock on the evening of the 9th after hearing of her father 's murder.
It may be that Pushpa Devi died on the 9th, but apart from the cause of her death, the statement of Kusuma Devi need not have been held up so long.
We are doubtful if the Investigating officer at all knew on the 9th that Pushpa Devi had died.
He has admitted that his knowledge in that behalf was derived from hearsay reports.
The appellant Subhash had surrendered before the Additional District Magistrate, Farrukhabad on the afternoon of the 9th itself while the other appellant Shyam Narain was arrested at Fatehgarh at about 2 40 p.m.
The Investigating officer did not even know of these significant developments, though they had taken place just a few miles away from the scene of investigation.
He says that he learnt of the surrender and the arrest of the appellants on the evening of the 12th.
Mangali Prasad has been examined by the prosecution as an eye witness and his name is mentioned in the F.I.R. as one of the four persons who arrived at the scene of offence even before the appellants had run away.
His statement was recorded 11 days later on June 20.
The F.I.R. mentions expressly that the appellants caught hold of the legs of the deceased and started dragging him.
The Investigating officer has not stated in the Panchnama of the scene of offence whether the ground was soft or hard or sandy which had great relevance on the allegation that the deceased was dragged over a certain distance.
Finally, it is surprising that the Investigating officer did not think it worthwhile to pay a visit to the field where the deceased is alleged to have gone with his children for eating Kharbuzas.
Indeed he stated that he was not in a position to say if there were Kharbuzas at all in the field, when the occurrence took place.
591 The High Court has condoned these lapses on the part of the Investigating officer with the observation that he "appears to have been inexperienced and somewhat negligent".
The Investigating officer has stated in his evidence that he had put in 7 years of service.
It is difficult to understand on what basis the High Court attributed the lapses on his part to mere inexperience.
We will presently indicate the significance of the various lapses and loopholes in investigation but to say, as the High Court has done, that the Investigating Officer was "somewhat negligent" seems to us in the circumstances a grave euphemism.
We will now proceed to deal with the various circumstances which, in our opinion, render it unsafe to accept the prosecution case.
Dr. S.C. Pandiya who performed the post mortem examination has described in his evidence the injuries received by Ram Sanehi.
In all he found 7 injuries on the dead body, out of which injuries 1, 3 and 7, injuries 2 and 4, and injuries 5 and 6 are interconnected.
Injury No. 1 is described as a "shot wound" with its entry above the left nipple.
Injury No. 3 is described as multiple rounded abrasions on the left side of the chest.
Injury No. 7 is the wound of exit on the right scapular region, corresponding to injury No. 1.
rnjury No. 2 consists of 8 gunshot wounds of entry below the right nipple while injury No. 4 consists of multiple rounded abrasions above the right nipple.
Injury No. 5 is a gun shot wound of entry on the back of the left forearm while injury No. 6 is the corresponding wound of exit near the ulnar aspect of the left forearm.
The evidence of Dr. Pandiya and the description of the injuries given by him in the post mortem report tend to show that two different kinds of firearms were used by the assailants of Ram Sanehi.
Injury No. 1 was caused by a bullet and that is clear not only from the description of the injury but from what Dr. Pandiya has stated in his evidence.
He says: "The bullet, which had entered through injury No. 1 went out straight after emerging from injury No. 7".
Injuries Nos. 2 and 5 were caused by pellets.
This shows that whereas injury No. 1 was caused by a firearm in the nature of a rifle, injuries 2 and 5 were caused by an ordinary gun.
The medical evidence thus falsifies the eye witnesses ' account according to which, the appellant Subhash alone was armed with a double barrelled gun, the other appellant Shyam Narain being armed with a lathi.
The objective inference arising from the nature of injuries received by the deceased has a significant impact on the case of the prosecution, which has been overlooked by both the Sessions Court and the High Court.
While we are on the medical evidence it would be appropriate to mention that there was no tatooing or charring on any of the firearm injuries which, according to the doctor, shows that the firing was done from a distance of more than 4 feet.
In the First Information Report Bal Kishore has stated that as soon as he, his father and sister, reached the culvert, Subhash "touching the chest" of Ram Sanehi "with the 592 barrel of his gun" said that he shall not leave him alive; Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then fired three shots in quick succession, one of which mishred.
The trend of the F.I.R. is that Subhash fired the first two shots at Ram Sanehi from a point blank range, in which event indisputably, there would have been tatooing and charring around the injuries.
Bal Kishore has attempted to offer an explanation that what he meant to say in his compaint was that Subhash trained his gun "towards" Ram Sanehi 's chest and not "on" his chest.
This explanation is an after thought and in the circumstances difficult to accept.
Thus in another important respect, the medical evidence falsifies the case of the prose cution.
There is another aspect of the medical evidence which, though, not as important as the two aspects mentioned above, may also be referred to.
The case of the prosecution is that Ram Sanehi had gone to his Kharbuza field with his son and daughter for eating Kharobuzsas.
There is evidence that they did eat Kharbuzas and almost immediately there after they started back for home.
Within less than 5 minutes, Ram Sanehi met with his deat near the culvert.
The post mortem report shows that Ram Sanehi 's stomach was empty which means that the evidence that he had eaten Kharbuzas just a little time before his death is untrue.
Bal Kishore tried to wriggle out of this situation by saying that Ram Sanehi had eaten just a small slice of Kharbuza.
But even there, Dr. Pandiya has stated that if the entire slice of Kharbuza was eaten by Ram Sanehi, its remains would be found in the stomach provided there was no vomiting after the gun shot injuries.
Since Ram Sanehi had not vomited, his large intestines could not have been found to be empty if the story of his children was true.
This last circumstance may at first sight seem trivial but its importance consists in the fact that the visit of Ram Sanehi, along with his children, to the Kharbuza field for the purpose of eating Kharbuzas is the very genesis of the incident which happened on June 9, 1972.
Coupled with the circumstance that the Investigating officer did not even pay a visit to the Kharbuza field, leave alone making a Panchnama thereof, the conclusion is irresistible that the story that the children had accompanied their father to the Kharbuza field lacks a factual basis.
The other circumstances which render the prosecution case suspect are these (1) Ram Sanehi is alleged to have been drageed over 6 or 7 paces by the appellants but not even an abrasion was found on his back or stomach which could be attributed to dragging.
(2) Thirty or forty persons are alleged to have collected at the sence of occurrence but Bal Kishore was not able to mention the name of even one of them and it is common ground that the Investigating officer did not record the statement of any of them.
(3) Jhabboo Singh, Shyam Lal Brij Bhushan and Mangali Prasad reached the scene of offence even before the appellants had fled away but none from amongst the first three was examined by the prosecution.
Mangali Prasad was examin 593 ed as an eye witness but he has been concurrently disbelieved by the Sessions Court and the High Court.
(4) Though the motive of the offence is alleged to be that in a complaint filed by Pooran Lal against the appellant Subhash, the deceased Ram Sanehi was cited as a witness, Mangali Prasad 's evidence shows that immediately after the firing, Bal Kishore told him that Ram Sanehi was murdered because of the disputes concerning the election to the Pradhanki.
What Bal Kishore told Mangali Prasad immediately after the incident seems more probable because, one Virendrapal had contested that election and the appellant Subhash had defeated him.
When Bal Kishore went to lodge his F.I.R. at the police station he was accompanied by Virendrapal, though an attempt was made to show that Virendrapal was only standing outside the police station and had met Bal Kishore accidently.
(5) The story of Bal Kishore that after the appellant Subhash fired 2 shots he re loaded his gun but the re loaded cartridge misured makes hardly any sense.
Subhash was armed with a double barrelled gun and having fired 2 fatal shots from a close range at his target, it is unlikely that he would re load the gun and that too with only one cartridge.
And if that cartridge misfired, it is impossible to understand how it could be found concealed in the folds of Ram Sanehi 's dhoti.
There is only one other aspect of the matter which remains to be considered and since the High Court has placed great reliance thereon, it is necessary to deal with it.
The F.I.R. which lodged at about 12 O 'clock at noon on the 9th itself mentions that after Ram Sanehi was murdered, the appellant Subhash told his companion Shyam Narain that he himself was going to surrender before a court and that Shyam Narain should make his own arrangement.
In fact, Subhash did surrender in the court of the Additional District Magistrate, Farrukhabad, at about 4 p.m. on the 9th.
What the High Court has over looked is that Subhash did not surrender in connection with the murder of Ram Sanehi but he surrendered along with the 13 or 14 other accused against whom Pooran Lal had filed a complaint.
In so far as Shyam Narain is concerned, the High Court is wrong in saying that he managed somehow to get himself arrested.
The evidence of Constable Virendra Singh shows that Shyam Narain was arrested because he was crossing the railway lines and if he was not caught, he would have been run over by the two trains coming from Kanpur and Farrukhabad.
This was hardly any sensible way of making an "arrangement" for himself, as directed by Subhash.
It is therefore not as if the statement attributed to Subhash in the F.I.R. is corroborated by subsequent events so as to afford a guarantee to Bal Kishore 's presence at the culvert.
We are conscious that the Sessions Court and the High Court have both held that the appellants committed the murder of Ram Sanehi but the weight of the circumstances which we have discussed above is so preponderating that even the concurrent finding cannot be allowed 594 to stand.
In any event, it seems to us impossible to hold that the prosecution has established its case beyond a reasonable doubt.
We therefore allow this appeal, set aside the order of conviction and sentence recorded by the High Court and the Sessions Court and direct that the appellants shall be set at liberty.
M.R. Appeal allowed.
|
Ram Sanehi received two gun shot wounds on his chest, and died within ten minutes.
Two of his children claimed to have witnessed the occurrence.
The dead body was subjected to post mortem only after about 24 hours had elapsed.
The same evening, appellant Subhash surrendered, and appellant Shyam Narain was arrested, though for another offence altogether.
The Sessions Court convicted them under section 302 I.P.C. and sentenced Subhash to death and Shyam Narain to imprisonment for life.
The accused moved the High Court in appeal, while the Sessions Court referred the matter to it under section 374, for confirmation of the death sentence.
The question before this Court was, whether in the case of such references, the High Court was obliged to examine the entire evidence independently.
Allowing the appeal, the Court, ^ HELD: On a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.
The High Court must not only see whether the other order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court 's appraisal and assessment of that evidence.
[589A B] Jumman and Ors.
vs The State of Punjab AIR 1957 S.C. 460; Ram Shanker Singh and Ors.
vs State of West Bengal [1962] Supp. 1 SCR 49 at 59 and Bhupendra Singh vs The State of Punjab ; , followed.
|
Appeal No. 1940 of 1967.
Appeal by special leave from the judgment and order dated April 17, 27, 1967 of the Gujarat High Court in Civil Revision Application 328 of 1967.
section T. Desai and I. N. Shroff for the appellants.
M. P. Amin, P. M. Amin, P. N. Dua and J. B. Dadachanji, for respondent No. 1.
R. P. Kapur, for respondents Nos. 2 and 3.
The Judgment of the Court was delivered by Shah, J.
By insistence upon procedural wrangling in a com paratively simple suit pending in the Court of Small Causes at Ahmedabad the parties have effectively prevented all progress in the suit during the last six years.
A building in the town of Ahmedabad used as a cinematograph theatre belonged originally to Messrs. Popatlal Punjabhai.
estate of the owners and on August 19, 1954, the receivers ,estate of the owners and on August 19, 1954, The receivers granted a lease of the theatre on certain terms and conditions to two persons, Raval and Faraqui.
By an agreement dated November 27, 1954, between Raval and Faraqui on the one hand and Messrs. Filmistan Distributors (India) Private Ltd. hereinafter called "Filmistan on the other hand, right to exhibit cinematograph films was granted to the latter on certain terms and conditions.
"Filmistan" instituted suit No. 149 of 1960 in the Court of the Civil Judge (Senior Division) at Ahmedabad against Raval and Faraqui and two other persons claiming a declaration that it 437 was entitled pursuant to the agreement dated November 27, 1954, to exhibit motion pictures in the theatre.
By an order dated December 1, 1960 the suit was disposed of as compromised.
It was inter alia agreed that Raval and Faraqui were bound and liable to allow Filmistan to exercise its "exhibition rights" in the theatre; that Raval and Faraqui, their servants and agents were not to have any right to exhibit any picture in contravention of the terms and conditions of the agreement dated November 27, 1954; and that Raval and Faraqui shall "execute and register" an agreement in writing incorporating the said agreement with the variation as to rental.
Pursuant to this agreement, a fresh agreement was executed on December 1, 1960.
On September 1, 1963, Filmistan filed suit No. 1465 of 1963 in the Court of Small Causes at Ahmedabad, inter alia, for a declaration that as sub lessee or as lessee under law it was entitled to obtain and remain in possession of the theatre and to exhibit cinematograph films and to hold "entertainment performances" etc.
in the theatre, and that one Shabeer Hussain Khan Tejabwala had no right, title or interest in the theatre, that the defendants in the suit be ordered to hand over vacant and peaceful possession of the theatre, and the defendants, their servants and agents be restrained by an injunction from interfering directly or indirectly with its rights to obtain and remain in possession of the theatre or any part thereof and to exercise its right of exhibiting "motion pictures" and entertainment performances etc.
This suit was filed against the receivers in insolvency of the owners of the theatre, against Raval and Faraqui, against Tejabwala and also against Baldevdas Shivlal who claimed to be the owner of the theatre.
The suit was based on the claim by Filmistan as lessees or sub lessees of the theatre and was exclusively triable by the Court of Small Causes by virtue of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
Three sets of written statements were filed against the claim made by Filmistan, but no reference need be made thereto, since at this stage in deciding appeal the merits of the pleas raised by the defendants are not relevant.
After issues were raised on June 20, 1966, the plaint was amended and additional written statements were filed by the Defendants.
The learned Judge was then requested to frame three additional issues in view of the amended pleadings : the issues were: 1.
Whether in view of the said consent decree in suit No. 149 of 1960 defendants Nos. 5 and 6 are debarred on principles of res judicata from agitating the question that the said document dated November 27, 1954 as confirmed by their letter dated January 31, L13 Sup.
CI/69 17 438 1955 and further confirmed by document dated December 1, 1960 is not a lease? 12.
Whether in view of the said consent decree, defendants 5 and 6 are estopped from contending and leading any evidence and putting questions in crossexamination of plaintiffs witnesses to show that the said document dated November 27, 1954 as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 is not a lease ? 13.
Whether in respect of the terms of the said consent decree as also of the said document dated November 27, 1954, as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 defendants Nos. 5 and 6 are debarred from leading any evidence of the, plaintiffs witnesses in view of section 92 of the Evidence Act ?" In drawing up the additional issues not much care was apparently exercised : whether a party is entitled to lead evidence or to put questions in cross examination of the plaintiff 's witnesses cannot form the subject matter of an issue.
Filmistan then applied to the Court of Small Causes for an order that issues Nos. 11, 12 & 13 be tried as preliminary issues.
The learned Judge observed that the issues were not purely of law, that in any event the case or any part thereof was not likely to be disposed of on these issues, and that ordinarily in "appealable cases" the Court should, as far as possible, decide all the issues together and that piecemeal trial might result in protracting the litigation.
He also observed that the issues were not of law going to the root of the case and were on that account not capable of being decided without recording evidence.
A revision application against that order was dismissed in limine by the High Court of Gujarat.
When the case reached hearing and the evidence of a representative of Filmistan was.
being recorded, counsel for the defendants asked in cross examination the question whether the "agreement between the plaintiff and defendant Nos. 5 and 6 was a commercial transaction and was not a lease ?" The question was objected to by counsel appearing for Filmistan.
Thereafter elaborate arguments were advanced and the Trial Judge passed an order disallowing the objection.
The objection to the question raised by Filmistan was not that it related to a matter to be decided by the Court and on which the opinion of witnesses was irrelevant.
The objection was raised as 439 an attempt to reopen the previous decision given by the Trial Judge refusing to try issues Nos. 11, 12 & 13 as preliminary issues.
Counsel for Filmistan contended that an enquiry into the nature of the legal relationship arising out of the agreement dated December 1, 1960 "was barred by the principle of res judicata and estoppel under the provisions of section 92 of the Evidence Act", since the question was already concluded by the consent decree in suit No. 149 of 1960.
The Trial Judge observed that he had carefully gone through the consent decree and the registered agreement dated December 1, 1960, and he found that the consent decree had not decided that the transaction between the parties of the year 1954 was in the nature of a lease; that in the plaint in the earlier suit it was not even averred that the rights granted were in the nature of leasehold rights; that suit No. 149 of 1960 was for declaration of the rights of Filmistan to exhibit motion pictures, in the theatre under the agreement dated November 27, 1954, and for an injunction restraining the defendants from violating the said rights of Filmistan under the agreement; and that the agreement dated December 1, 1960 was "not plain enough to exclude the oral evidence of the surrounding circumstances and conduct of the parties to explain its terms and language".
Accordingly he held that the question asked in cross examination of the witnesses for Filmistan intended to secure disclosure of the surrounding circumstances and conduct of the parties in order to show in what manner the language of the document was related to the existing facts, could not be excluded.
The Court also rejected the contention that there was any bar of estoppel, and held that evidence as to the true nature of the transaction was not inadmissible by virtue of section 92 of the Evidence Act.
Filmistan feeling dissatisfied with the order invoked the revisional jurisdiction of the High Court of Gujarat under section 115 of ' the Code of Civil Procedure.
The revision petition was entertained and elaborate arguments were advanced at the Bar.
The High Court referred to a number of authorities and observed that the correctness of the findings of the Trial Court on issues Nos. 12 and 13 may not be examined in exercise of the powers under section 115 of the Code of Civil Procedure.
The Court proceeded to, observe : "The question then arises for consideration whether in fact the subordinate Court has decided the question of res judicata", and that "it is true that the jurisdiction of the Court of mall Causes to decide disputes between a tenant and his landlord and falling within the purview of section 28 of the Bombay Rent Control Act is derived from section 28 of the said Act, but at the same time if an issue is in fact barred by res judicata, then the Court has no 440 jurisdiction on principles of res judicata to go into that question or to decide that question over again to the extent to which the Court, viz., the trial court in the instant case, proposed to go into that question and allow the whole question, that was closed once for all by consent decree of December 1, 1960, to be reopened, it is proposing to exercise the jurisdiction which is not vested in it by law.
It is not open to any Court of law to try an issue over again or reopen the same if an earlier decision operates as res judicata.
Once the jurisdiction of the Court has been taken away, any proposal to reopen the question closed by the earlier decision would be exercise of jurisdiction which is not vested in the Court by law and to that extent the decision would become revisable, even if it is the decision as to the res judicata of an issue", and concluded "It is not open to me in revision at this stage to express any opinion about the rights and contentions of the parties with reference to the agreement of December 1, 1960.
But the only thing that can be said is that so far as the agreement of November 27, 1954, is con cerned, it must be held, in view of the consent decree of December 1, 1960, that that document of November 27, 1954, created a lease. .
The consent decree must be held to create a bar of res judicata as far as the question of document of November 27, 1954, creatin g a lease is, concerned.
The learned Judge will not proceed with the trial".
By section 115 of the Code of Civil Procedure the High Court is invested with power to call for the record of any case decided by any Court subordinate to such High Court and in which no appeal lies thereo, if such subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, and to make such order in the case as it thinks fit.
Exercise of the power is broadly subject to three important conditions (1) that the decision is of a Court subordinate to the High Court; (2) that there is a case which has been decided by the subordinate Court; and (3) that the subordinate Court has exercised jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity.
441 In the present case the Court of Small Causes had only decided that a question seeking information about the true legal relationship arising out of the document could be permitted to 'be put to the witnesses for Filmistan.
The Court gave no finding expressly or by implication on the issue of res judicata or any other issue.
In the view of the Trial Court the question whether the legal relationship arising out of the agreement dated December 1, 1960 was in the nature of a lease or of other character had to be decided at the trial and the previous judgment being a judgment by consent , 'could not operate as res judicata", for, it was not a decision of the Court, and that the consent decree in suit No. 149 of 1960 had not decided that the agreement dated March 27, 1954, was of the nature of a lease, and that in the plaint in that suit it was not even averred that it was a lease.
The Trial Judge in overruling the objection did not decide any issues at the stage of recording evidence : he was not called upon to decide any issues at that stage.
The observations made by him obviously relate to the arguments advanced at the Bar and can in no sense be regarded even indirectly as a decision on any of the issues.
But the High Court has recorded a finding that the agreement dated November 27, 1954, created a lease and that the consent decree operated as res judicata.
A consent decree, accord ing to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court.
A matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court : the terms of section II of the Code leave no scope for a contrary view.
Again it was for the Trial Court in the first instance to decide that question and there after the High Court could, if the matter were brought before it by way of appeal or in exercise of its revisional jurisdiction, have decided that question.
In our judgment, the High Court had no jurisdiction to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination.
The true nature of the order brought before the High Court and the dimensions of the dispute covered thereby apparently got blurred and the High Court proceeded to decide matters on which no decision was till then recorded by the Trial Court, and which could not be decided by the High Court until the parties had opportunity to lead evidence thereon.
It may also be observed that by ordering that a question may properly to put to a witness who was being examined, no case was decided by the Trial Court.
The expression "case" is not limited in its import to the entirety of the matter in dispute in an action.
442 This Court observed in Major section section Khanna vs Brig.
F. J. Dillon(1) that the expression "case" is a word of comprehensive import : it includes a civil proceeding and is not restricted by anything contained in section 115 of the Code to the entirety of the proceeding in a civil court.
To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice.
But it was not decided in Major section section Khanna 's case(1) that every order of the Court in the course of a suit amounts to a case decided.
A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of section 115 of the Code of Civil Procedure.
The order passed by the High Court is set aside and the Trial Court is directed to proceed and dispose of the suit.
We trust that the suit will be taken up early for hearing and disposed of expeditiously.
We recommend that the form of the issues Nos. 11, 12 and 13 will be rectified by the learned Trial Judge.
Filmistan will pay the costs of the appeal in this Court and in the High Court.
G.C. Appeal allowed.
|
R and F who held a cinema building in Ahmedabad on lease entered on November 27, 1954 into an agreement with respondent No. 1 giving the latter a right to exhibit cinematograph films in the said building.
Later respondent No. 1 filed 'suit No. 149 of 1960 to assert his right to exhibit films in the building.
The suit resulted in a compromise decree.
In pursuance of the compromise a further agreement dated December 1, 1960 was executed between the parties.
However in 1963 respondent No. 1 again filed a suit claiming as a sub lessee or as lessee a right to exhibit films in the said building and praying that the defendants be restrained from interfering with that right.
The suit was filed under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 in the Court of Small Causes.
In this suit respondent No. 1 asked the court to try additional issues Nos. 11, 12 and 13 as preliminary issues.
In issue No. 11 the question raised was whether the consent decree in the earlier suit operated as res judicata so that R & F could not question that the agreements between them and respondent No. 1 constituted a lease.
Issue No. 12 raised the question whether in view of the consent decree R & F were estopped from leading evidence and asking questions in cross examination to show that the said agreements did not constitute a lease.
Issue No. 13 raised the question whether section 92 of the Indian Evidence Act debarred R & F from leading evidence to the effect that the documents in question did not constitute a lease.
The Trial Court refused to try these as preliminary issues and its order was upheld by the High Court.
At the hearing of the case when the counsel for the defendants sought to ask a witness for respondent No. 1 whether the agreement dated November 27, 1954 was a commercial transaction and not a lease respondent No. 1 objected to the question.
The objection was disallowed by the trial court.
In revision under section 115 of the Code of Civil Procedure the High Court did not interfere with the trial court 's order in respect of issues Nos. 12 and 13.
In respect of issue No. 11, the High Court held that the agreement dated November 27, 1954 must in view of the consent decree in suit No. 149 of 1960 be held to be a lease, and that the consent decree created a bar of res judicata in respect of the issue whether the said agreement created a lease.
The defendants appellants appealed to this Court.
HELD : (i) The High Court had no jurisdiction to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination.
The Court erred in proceeding to decide matters on which no decision was till then recorded by the trial court and which could not be decided by the High Court until the parties had opportunity of leading evidence thereon.
(ii) By ordering that a question may properly be put to a witness who was examined, no case was decided by the Trial Court within the meaning of section 115 of the Code of Civil Procedure.
The expression 'case ' is not limited in its import to the entirety of the matter in dispute in a proceeding.
Such an interpretation may result in certain cases in denying relief to the aggrieved litigant where it is most needed.
But equally, it is not every order of the court in the course of a suit that amounts to a case decided.
A case may be said to be decided only if the court adjudicates, for the purpose of the suit, some right or obligation of the parties in controversy.
[441H 442C] Major section section Khanna vs Brig.
F. J, Dillon, [1964] 4 S.C.R. 409, referred to.
(iii) A consent decree, according to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to, a suit, to which is superadded the seal of the court.
A matter in contest in a suit may operate as res judicata only if there is an adjudication by the court : the terms of section 1 1 of the Code leave no scope for a contrary view.
[441E]
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1. Sandesh Madhukar Salunkhe
2. Abhishek Amrit Salunkhe …. Petitioners
v/s.
The State of Maharashtra and anr. …. Respondents
Mr. Umesh Mankapure for the Petitioners.
Ms. M.M. Deshmukh, APP for the State.
Mr. Dilip Shinde for the Respondent No.2.
.With consent, heard finally at the stage of admission.
2.By this Petition filed under Article 226 of the Constitution of
India, the Petitioners seek to quash the FIR No.0009/2021 registered
with Bhilawadi Police Station, Dist. Sangli and consequent charge sheet
being RCC Case No.86/2021 pending before the learned Joint Civil
Judge, Junior Division, Palus for offences punishable under sections
406, 498-A, 504, 506 r/w. 34 of the Indian Penal Code.
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3.Heard learned counsel for the Petitioners, learned APP for the
State and learned counsel for the Respondent No.2. We have perused
the records and considered the submissions advanced by the learned
counsel for Respondent No.2.
4.The aforesaid crime was registered pursuant to the FIR lodged by
the Respondent No.2. The marriage of the Respondent No.2 and Amol
Amrit Salunkhe was solemnized on 13/07/2020. The Respondent No.2
claims that she was driven out of her matrimonial home in November,
2020. She lodged the FIR on 09/01/2021 alleging that her husband –
Amol Salunkhe was unable to establish conjugal relationship with her
since the date of her marriage. She has further alleged that her in-laws
use to taunt and insult her. The Petitioner No.1 is the brother-in-law of
the Respondent No.2. The only allegation levelled against these
Petitioners being the brother and cousin of the husband of Respondent
No.2 are that they commented that the Respondent No.2 does not
know how to cook and that her parents have not taught her anything.
5.Needless to state that petty quarrels do not constitute cruelty
within the meaning of Section 498-A of IPC. In order to constitute an
offence under Section 498-A, there must be prima facie material to
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prove (a) willful conduct of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life,
limb or health of the woman ; (b) that they had harassed her with a
view to coerce her to satisfy unlawful demand of dowry. It has to be
established that the woman has been subjected to cruelty continuously
or persistently or at least in close proximity of time of lodging the
complaint. Reliance is placed on the decision of the Apex Court in
Manju Ram Kalita v/s. State of Assam (2009) 13 SCC 330.
6.In the instant case, the only allegation levelled against these
Petitioners is that they had commented that Respondent No.2 does not
know how to cook. Such comment does not constitute ‘cruelty’ within
the meaning of the Explanation to Section 498-A of the Indian Penal
Code.
7.In State of Haryana and others v/s. Ch. Bhajan Lal and others
AIR 1992 SC 604, the Apex Court has set out by way of illustration the
broad categories of cases in which the inherent powers under Section
482 of Cr.P .C. could be exercised. The illustrations relevant to decide
the case in hand are :
“102. (1) where the allegations made in the First
Information Report or the complaint, even if they are taken
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at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case
against the accused.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
8.In Geo Verghase v/s. State of Rajasthan and Anr., AIR 2021 SC
4764, the Apex Court has reiterated that :-
“ 34. … Undoubtedly, every High Court has inherent power
to act ex debito justitiae i.e., to do real and substantial
justice, or to prevent abuse of the process of the Court. The
powers being very wide in itself imposes a solemn duty on
the Courts, requiring great caution in its exercise. The Court
must be careful to see that its decision in exercise of this
power is based on sound principles. The inherent powers
vested in the Court should not be exercised to stifle a
legitimate prosecution. However, the inherent power or the
extra-ordinary power conferred upon the High Court,
entitles the said Court to quash a proceeding, if it comes to
the conclusion that allowing the proceeding to continue
would be an abuse of the process of the Court, or the ends
of justice require that the proceeding ought to be quashed.”
9.Having considered the nature of the accusations against the
Petitioners, this is a fit case to quash the FIR by exercising power under
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Article 226 of the Constitution and even under Section 482 of Code of
Criminal Procedure. Hence, the Petition is allowed. FIR No. 0009/2021
registered with Bhilawadi Police Station, Dist. Sangli and consequent
charge sheet being RCC Case No.86/2021 pending before the learned
Joint Civil Judge, Junior Division, Palus stands quashed, qua the
Petitioners.
10.Petition stands disposed of in above terms.
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|
Husband's relatives making negative comments about wife's cooking skills will not amount to cruelty under Section 498A of the Indian Penal Code (IPC), the Bombay High Court recently observed while quashing a first information report (FIR) by a woman against the relatives of a husband [Sandesh Madhukar Salunkhe & Anr v. State of Maharashtra & Anr].
The wife had alleged in her complaint that her husband's brothers used to taunt and insult her by saying that she does not know how to cook and that her parents did not teach her anything.
However, a division bench of Justices Anuja Prabhudessai and NR Borkar held that such comments did not constitute cruelty under Section 498A.
"In the instant case, the only allegation levelled against these Petitioners is that they had commented that Respondent No.2 does not know how to cook. Such comment does not constitute ‘cruelty’ within the meaning of the Explanation to Section 498-A of the Indian Penal Code," the Court held.
The woman's complaint stated that her marriage was solemnised on July 13, 2020. She claimed that she was driven out of her matrimonial home in November 2020 after which she lodged an FIR on January 9, 2021.
She claimed that her husband was unable to establish conjugal relationship with her since the date of her marriage.
The accused moved the Court for quashing the FIR.
The Court held that petty quarrels did not constitute cruelty within the meaning of Section 498A of IPC.
The Court opined that to prove an offence under Section 498A, it has to be established that the woman was subjected to cruelty continuously or persistently.
The Court found the present case fit for quashing and allowed the petition filed by the two relatives.
|
ivil Appeal No. 350 of 1977.
From the Judgment and Order dated 19.10.1976 of the Madhya Pradesh High Court in Second Appeal No. 385 of 1974.
S.N. Kacker and Shri Narain for the Appellants.
Harish N. Salve, Mrs. P.S. Shroff, S.S. Shroff and S.A. Shroff for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave arises out of a suit filed by the respondent for setting aside the decree in an earlier suit being Suit No. 61 A of 1955 instituted by Dammu Lal, husband of the respondent No. 1 and father of respondent No. 2 to 12, for eviction of the appellants from a building in Raipur which is in their occupation as tenants.
Dammu Lal also prayed for a decree for arrears of rent and damages.
The prayer for eviction was allowed along with a money decree for Rs.260 as arrears of rent and Rs.137 as damages the tenants filed an appeal which was numbered as Civil Appeal No 7 A of 1965.
During the pendency of the appeal Dammu Lal died and his legal representatives were substituted as respondents.
Some of his children were minor who were placed under the guardianship of their mother Smt.
Sugandhibai, respondent No. l.
An application purporting to be a compromise petition on behalf of all the parties was filed before the court which was recorded and the suit was disposed of in its terms by the appellate court on 23.4.1966.
According to the compromise the entire decree was set aside and the suit was dismissed, with the parties bearing their own costs.
The respondents have challenged the compromise decree by the present suit.
The trial court dismissed the suit.
On appeal the first appellate court reversed the decision, set aside the compromise decree and directed the Civil Appel No. 7 A of 1965 to be disposed of afresh1 in accordance with law.
By PG NO 198 the impugned judgment the High Court dismissed the second appeal preferred by the appellants.
Mr. Kacker, the learned counsel appearing in support of the appeal, placed the facts relevant to the several questions raised by the parties and decided by the courts below and contended that the decision of the High Court is illegal on several grounds.
We do not consider it necessary to go into all the questions disposed of by the courts below as the respondents are, in our view, entitled to succeed in the suit on one of the several points urged on their behalf which is discussed below.
As has been stated earlier, some of the party respondents in Civil Appeal No. 7 A of 1965 including Kamal Kumar, one of the sons of Dammu Lal, were minor and were represented by Mr. Makasdar, Advocate.
In view of the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure, it was essential for the court to have granted permission to the guardian to enter into the compromise only after considering all the relevant circumstances.
From the records of the case it appears that the court before recording the compromise sanctioned leave in the following words: "As the appellant is prepared to forego the entire cost of the proceedings, it is in the interest of the minors and benefit of the minors that this appeal be compromised.
The minor respondents are represented by senior counsel and his opinion is that it will be in the interest of the minor to compromise the appeal.
In view of this, I have no reason to disagree with him.
I am satisfied that the compromise is in the interest of the minors, hence, I allow the application and grant the necessary permission under Order 32 Rule 7 C.P.C. to the learned counsel of the minor respondents to compromise the appeal.
" On the face of it, the compromise was one sided whereby the minors were giving up their right under the trial court 's decree both in respect to eviction as well as arrears of rent and damages.
It is said that as a consideration for the compromise the appellants were giving up their right to claim costs which might have been decreed by the appellate court in case of their success c.n merits.
According to the respondents ' case which has been accepted by the two courts below the guardian of the minors was guilty of gross negligence in entering into the com promise by failing to take into account the interest of the minors.
On behalf of the appellants it has been contended PG NO 199 that during the pendency of Civil Appeal No. 7 A of 1965 the M.P. Accommodation Control Act was passed and the decree of the trial court was likely to be set aside.
In that view, it is urged, the minor 's guardian through Mr. Makasdar acted rightly in settling the dispute and thus saving a decree for costs which could have been passed against them.
According to the further case of the respondents the relevant circumstances and the terms of the compromise were never explained to the respondent No. 1 and Mr. Mokasdar asked for the court 's permission to enter into the compromise on behalf of the minor without any instruction from their guardian in this regard.
It is also urged that the language of the order whereby the court granted its permission indicates that the court did not apply its mind independently.
However, we do not consider it necessary to decide these points as also several others raised by the parties as in our view the compromise decree must be set aside on the ground of gross negligence.
It has not been suggested on behalf of the appellants in the present case that there was any ground available to them to successfully challenge the money decree passed in the earlier suit.
Mr. Kacker also has not suggested any possible ground against that part of the decree.
He, however, said that the decree was not for a substantial amount as it was for less than Rs.400, and should therefore be ignored for the purposes of this case.
The question as to whether the amount was substantial or not has to be judged in the light of the circumstances in the case.
Here the building in question was a small one fetching a small amount of rent and a sum of Rs.400 could not be ignored as inconsequential or unsubstantial.
It has also to be remembered that even the cost in such a suit which was the sole consideration for the compromise could not be a large sum.
Besides, neither the minors advocate nor the court appears to have really considered the impact of the rent Act on the fate of the appeal which came in force during the pendency of the litigation.
We, therefore, hold that the compromise decree is fit to be set aside, and the decision of the court below does not call for any interference.
Accordingly Civil Appeal No. 7 A of 1965 is restored to its file before the II Additional District Judge, Raipur and will now be disposed of in accordance with law.
The appeal is dismissed with costs payable to respondents No. I to 12.
P. S .
Appeal dismissed .
|
The husband of respondent No. l sought eviction of the appellants tenants.
The suit was decreed in his favour along with money decree for arrears of rent and damages.
During the pendency of the appeal the plaintiff died and his legal representatives were substituted as respondents.
Some of his children who were minor were placed under the guardianship of respondent No. 1.
Consequent to a petition by the parties a compromise decree was passed setting aside the entire decree.
The respondents thereafter challenged the compromise decree.
The trial court dismissed the suit.
On appeal the first appellate court reversed the decision.
The High Court dismissed the appeal, preferred by the appellants.
In this appeal by special leave it was contended for the appellants that as a consideration for the compromise they were giving up their right to claim costs which might have been decreed by the appellate court in case of their success on merits.
The respondents ' case was that the guardian of the minors was guilty of gross negligence in entering into the compromise by failing to take into consideration the interest of the minors.
Dismissing the appeal, HELD: The decision of the courts below does not call for any interference.
The compromise decree is fit to be set aside on the ground of gross negligence.
[199F; 199Cl The compromise was one sided whereby the minors were giving up their right under the trial court 's decree both in respect of eviction as well as arrears of rent and damages.
In view of the provisions of Order XXXII, Rule 7 of the Code of Civil Procedure it was essential for the Court to have PG NO 196 PG NO 197 granted permission to the guardian to enter into the compromise only after considering all the relevant circumstances.
[198F; 198C D] The earlier civil appeal is restored to its file before the Additional District Judge for disposal in accordance with law.
[l99G]
|
The Appeal has been filed seeking to set aside the order dated
11.9.2018 passed by the Additional District and Sessions Judge, Fast
Track Court, Vellore made in S.C.No.90 of 2017.
2. The appellant stands convicted and sentenced as under:-
302 IPC Life imprisonment with fine of Rs.2000/- in
default to undergo rigorous imprisonment for
another period of one year
352 IPC Simple imprisonment for 3 months.
3. Brief facts of the prosecution case:-
i) A complaint, Ex.P1 came to be filed by one Poongodi (PW1) of
Valathur in Kanchipuram Taluk, the crux of which is as under:-
She is the niece of one Chinnaponnu (the deceased). The said
Chinnaponnu (the deceased) was living with the appellant/accused for
about two years at Thiruparkuttai and she had no issues. PW1 came
to know from her aunt (the deceased) that the appellant/accused was
already a married man having three girl children. She further came to
know that two daughters of the appellant had once visited the house of
the deceased and thereafter, the appellant/accused had started
demanding the deceased to transfer the said house property in the
name of his daughters born through his first wife to which, she had
refused and thereupon, the appellant/accused, having developed doubt
on the conduct of the deceased, used to pick up frequent quarrel with
her and beat her. On such issue, the deceased had lodged a complaint
with All Women Police Station and the dispute between the parties was
settled by the police by way of compromise, however, on 20.9.2010,
when the deceased was sitting in front of her house and PW1 was
sitting on the road near the house of one Santhi, which is located
opposite to the house of the deceased, the appellant had come to the
spot and picked up quarrel with the deceased saying that the house
belongs to his wife and children and therefore, the deceased should go
out of that house, to which, the deceased had refuted and thereupon,
the appellant, picked up a wooden log which was lying in the nearby
place and gave a blow on the head of the deceased. PW1 and the
deceased raised alarm. When PW1 tried to prevent the appellant, she
was pushed down by the appellant. Again they raised alarm seeking
help. One Munusamy and Murugesan, viz., P.Ws.2 and 3, who were
near the spot, had come to their rescue, however, the appellant, had
picked up a small knife, which, he was hiding in his waist, and inflicted
a lacerated injury on the neck of the deceased. The deceased fell
down near the lamp post. The appellant/accused ran away from the
spot. The injured was taken to C.M.C. Hospital, Vellore in an
ambulance, where, she succumbed to the injuries after some time.
ii) On receipt of the complaint, Ex.P1, the Sub Inspector of
Police, Thiruvalam Police Station (PW14) had registered the same in
Crime No.272 of 2010 for the offence punishable under Section 302
IPC and sent the FIR, Ex.P15 to the Judicial Magistrate.
iii) The Circle Inspector of Katpadi (PW18), who took up the
investigation on receipt of telephonic call by the Sub Inspector of
Police (PW14) on 21.9.2010, had visited the scene of occurrence and
prepared observation mahazar, Ex.P2 and rough sketch, Ex.P21 in the
presence of witnesses Sadagopan (PW4) and one Paulraj. Thereafter,
he had arranged for taking photographs of the scene of occurrence by
the photographer John @ Sambamoorthy (PW12). The photographs
and the CD containing compilation of the photographs have been
marked as M.Os.1 and 2.
iv) Thereafter, PW18 had collected blood stains and sample earth
from the scene of occurrence in the presence of the witnesses
Sadagopan and Paulraj under seizure mahazar. The signature of the
witnesses are marked as Ex.P3. Thereafter, at 9.00 am on 21.9.2010,
PW18 had conducted inquest on the dead body at CMC Hospital,
Vellore in the presence of panchayatdars and P.Ws.1 to 3, Ramadoss
and Velu and prepared the inquest report, Ex.P23. Thereafter, He sent
the dead body to Government Hospital, Vellore through the Head
Constable Raja for conducting post mortem. Subsequently, he had
enquired Dr.Ginamaryann Chandy (PW16), who had given first aid to
the victim and record her statement.
v) Dr.Ginamaryann Chandy (PW16), who was on duty at 8.10
pm on 20.9.2010 examined the victim and found that she could not
speak and put her on ventilator as she had difficulty in breathing. She
further found that the victim had bleeding on her face, lower abdomen
and lungs and she had sustained head injury and since the victim had
some impact in her brain, she could not speak. Since there was
substantial bleeding, the victim was provided with drips, however, she
died within two hours of her admission. PW16 had recorded in the
medical records at the time of admission to the effect that the victim
had sustained injuries due to the assault by her husband, however,
she could not specifically state as to who had given her such
information. She had opined that the vital injuries found on the
deceased could be inflicted with the weapon of offence viz., wooden
log, M.O.4. The death summary issued by PW16 is Ex.P17 and the
death intimation given by the Hospital to the police is Ex.P18.
vi) On receipt of information, PW18 had reached Karikari
Hospital Bus Stand and arrested the appellant/accused, who was
standing there and recorded his voluntary confession in the presence
of witnesses Saravanan and Gokulan viz., P.Ws.5 and 6 and recorded
the same under Ex.P24. On such voluntary confession, PW18 had
seized the blood stained knife M.O.3 produced by the appellant which
was hidden in his waist under seizure mahazar, Ex.P25 and the
wooden log M.O.4 from the drainage near the house of the appellant
as identified by him, in the presence of P.Ws.5 and 6 under seizure
mahazar, Ex.P26.
vii) On return to the police station, PW18, on examining the
appellant/accused, found blood stains on the shirt of the
appellant/accused and recovered the blood stained shirt, M.O.5 under
Form 95. Thereafter, he remanded the appellant to judicial custody.
viii) On 22.9.2010, PW18 had further investigated the case,
enquired the witnesses, Malliga, Murugan, Dhanalakshmi, John @
Sambamoorthy, Senthil, Santhi, Arumugam, Baskar and Janakiraman
and recorded their statements. Then PW18 had issued requisition to
the Inspector of Police, All Women Police Station, Vellore to get the
records in the complaint in Receipt No.723 of 2010 lodged by the
deceased. On 28.9.2010, PW18 had arranged for sending the material
objects to the Forensic Sciences Department.
ix) The Scientific Officer of Forensic Sciences Laboratory, Vellore,
PW17, who received 1-blood stained earth, 2-sample earth, 3-knife, 4-
blood stained wooden log, 5-blood stained shirt, 6-blood stained saree,
7-blood stained inskirt for examination, had found that items 1 and 3
to 7 contained blood stains while item 2 contained no blood stains and
sent them to Serological Department for further examination. The
report issued by PW17 is Ex.P19. He vouchsafed the serology report,
Ex.P20 issued by the Junior Scientific Officer of Forensic Sciences
Department to the effect that the report reveals that items 1, 3 to 7
contained human blood and items 5, 6 and 7 contained 'B' group
blood, but, it was inclusive to say the blood group with regard to
items 1, 3 and 4.
x) On 1.10.2010, PW18 had submitted requisition to the Chief
Judicial Magistrate to record the Statements the eyewitnesses, viz.,
P.Ws.1 and 2 and the witnesses to confession statement viz., P.Ws.5
and 6 under Section 164 Cr.P.C. and on 6.10.2010 he had summoned
the said witnesses and produced them before Judicial Magistrate V,
xi) Judicial Magistrate V, Vellore (PW13), on request from the
police, had recorded the 164 Statements of P.Ws.1, 2, 5 and 6 under
Exs.P11 to P14 respectively.
xii) Thereafter, on 30.1.2011, PW18 had collected from the
Inspector of Police, All Women Police Station, Vellore, the case details
and the complaint lodged by the the deceased (Ex.P27) and enquired
the Inspector of Police Suriyakala and recorded her statement. On
the same day, he had received the post mortem certificate, Ex.P29 and
enquired the Doctor, who conducted the post mortem and recorded his
statement.
xiii) The Doctor, who had conducted the post mortem had opined
that the deceased would appear to have died of shock and hemorrhage
due to the injuries sustained on scalp and lungs.
xiv) Thereafter, he had issued requisition for the report in
respect of M.Os.6 and 7, which were recovered from the dead body
under the Special Report, Ex.P28. Subsequently, on transfer of
service, PW18 had handed over the case records to his successor,
xv) The Inspector of Police, PW19, who took further investigation
of the case, enquired PW17-Jaganathan, the Scientific Officer,
Venkatesan, the Village Administrative Officer, Ammundi and Head
Constable Raja and recorded their statements. On completion of
investigation, PW19 had filed final report for the offences punishable
under sections 302 and 352 IPC as against the appellant/accused.
4. Learned Judicial Magistrate, Katpadi has taken the case on file
in P.R.C.No.2 of 2012 under Sections 302, 352 IPC against the
appellant/accused and finding that the case is to be tried exclusively
by the Court of Sessions, after complying with the requirements under
Section 207 Cr.P.C., committed the case to the Principal District Court,
Vellore and in turn, it was made over to the Additional Sessions Judge
(Fast Track Court), Vellore in S.C.No.90 of 2017.
5. When the appellant/accused was confronted with the charges,
he denied the same, pleaded not guilty and sought to be tried.
6. During trial, the prosecution had examined 19 witnesses as
P.Ws.1 to 19, marked 29 documents as Exs.P1 to P29 and marked
M.Os.1 to 7. Though the appellant pleaded not guilty, no oral and
documentary evidence was let in on the side of the defence.
7. On completion of trial, the Trial Court found the
appellant/accused guilty for the offences punishable under Section 302
and 352 IPC and sentenced him thereunder as indicated above.
8. Aggrieved against the judgment of conviction and sentence,
the present Appeal has been filed by the appellant/accused.
9. The sum and substances of the submissions made by the
Mr.T.Ravi, learned counsel appearing for the appellant is as under:-
i) The judgment of conviction and sentence rendered by the Trial
Court is against law as it failed to note that the eyewitnesses viz.,
P.Ws.1 to 3 turned hostile and the other vital witnesses viz., P.Ws.7 to
11 also turned hostile and there is no admissible evidence as against
the appellant to convict him and the prosecution has not established its
case beyond all reasonable doubts.
ii) The Trial Court has erred in relying upon the Statements of
the witnesses recorded under Section 164 Cr.P.C. to convict the
appellant when such statements were recorded on 6.10.2010 with
regard to the occurrence said to have taken place on 20.9.2010.
iii) When the law makes it clear that Statements recorded under
Section 164 Cr.P.C. can either be utilised only to corroborate or
contradict the witnesses vis-a-vis statement made in court and it
cannot be a substantive piece of evidence, the Trial Court has erred in
relying upon such statements to render the conviction against the
appellant, when especially the prosecution has not taken any steps to
contradict the witnesses who have turned hostile.
iv) The Trial Court has erred in ignoring the fact that P.Ws.5 and
6, arrest and recovery mahazar witnesses had also turned hostile and
therefore, the prosecution case with regard to arrest, confession and
recovery of material objects is also unbelievable.
v) The Trial Court has failed to note that no documents were
marked by the prosecution to establish the title of the deceased to the
house property and thereby the prosecution has failed to prove the
motive attributed to the appellant that he had demanded for transfer
of ownership in the name of his daughters and on refusal of the same
by the deceased, he had attacked her.
vi) The judgment of the Trial Court merely relying on the
statements of the witnesses recorded under Section 164 Cr.P.C. has
rendered the conviction against the appellant, which is inadmissible in
law and therefore, it is liable to be set aside.
10. Mr.Babu Muthumeeran, learned Additional Public Prosecutor
would submit that it is not a novel thing in criminal cases, and turning
of the prosecution witnesses hostile cannot be a ground for acquittal
of the accused. He would further submit that the prosecution
witnesses had given a clear and cogent statement before the learned
Judicial Magistrate which is corroborated by the medical evidence viz.,
matching of blood group of the deceased with that of the blood stains
found on the dress of the appellant recovered on the basis of the
voluntary confession statement of the appellant and therefore, he
prays for dismissal of Criminal Appeal.
11. In reply, the learned counsel for the appellant would submit
that the witnesses for the recovery of weapon of offence have turned
hostile and therefore, the recovery of the alleged cloths from the
appellant cannot be believed. He would further submit that mere
matching of the blood group of the blood samples taken from the
victim and the blood stained cloths alleged to have been recovered
from the appellant/accused cannot lead to the conclusion that the
appellant/accused had been involved in the commission of crime in
question. In support of the same, he would rely upon the decision of
the Apex Court in Sonvir @ Somvir vs. State of NCT of Delhi
12. Heard the learned counsel appearing for the parties and
perused the materials available on record.
13. The appellant is alleged to have assaulted the deceased,
with whom, he was living together for about twenty years, enraged by
her action in lodging a complaint against him to the effect that he
gives torture to her demanding that the house property standing in her
name has to be transferred in the name of his children born through
his wife and the deceased had succumbed to the injuries she had
sustained.
14. It is a peculiar case where almost all the independent
prosecution witnesses including the witnesses to the arrest and seizure
of the weapon of offence produced by the prosecution have turned
hostile. The alleged author of Ex.P1 complaint, who is the niece of the
deceased, has also turned hostile. Virtually, except the official
witnesses, no independent witness has supported the case of the
prosecution and the prosecution has not taken proper initiative to
prove its case. However, the Trial Court has proceeded to rely upon
the statements recorded from such witnesses under Section 164
Cr.P.C. viz., Exs.P11 to P14 to render the conviction against the
15. The law is well settled that a statement recorded under
Section 164 of the Code of Criminal Procedure is not substantive
evidence and it can be used to corroborate the statement of a witness
and it can be used to contradict a witness. In Ram Kishan Singh vs.
Harmit Kaur and another (1972) 3 SCC 280, it has been laid down
that a statement recorded under Section 164 of the Code of Criminal
Procedure is not substantive evidence and it can be used to
corroborate the statement of a witness and it can be used to contradict
a witness.
16. In Baij Nath Sah vs. State of Bihar (2010) 6 SCC 736
also, the Apex Court has held that mere statement of the prosecutrix
recorded under Section 164 Cr.PC. is not enough to convict the
appellant and it is not substantive evidence and it can be utilised only
to corroborate or contradict the witness vis-a-vis statement made in
court.
17. In the case on hand, the Trial Court has held that though the
eyewitnesses to the occurrence had turned hostile during their
examination in court, their statements recorded under Section 164
Cr.P.C. corroborates the medical evidence viz., the wounds found on
the dead body as revealed in the post mortem certificate and thereby
found the appellant guilty. However, strangely, the Trial Court has
ignored the fact that when the occurrence is said to have taken place
on 20.9.2010 and the post mortem certificate was issued on
21.9.2010, the statements from the witnesses had been recorded on
6.10.2010. Such a long delay in recording the statements of the
witnesses speaks much.
18. Further, the Trial Court, taking presumption available under
Section 80 of the Indian Evidence Act, 1872, had proceeded to rely
upon Exs.P11 to P14, the statements recorded from the witnesses
under Section 164 Cr.P.C. to render conviction against the appellant.
19. Of course, there a presumption is available under Section 80
of the Indian Evidence Act, 1872 as to the documents produced as
record evidence. The legal provision reads as under:-
"80. Presumption as to documents produced as
record of evidence.—Whenever any document is
produced before any Court, purporting to be a record
or memorandum of the evidence, or of any part of
the evidence, given by a witness in a judicial
proceeding or before any officer authorized by law
to take such evidence, or to be a statement or
confession by any prisoner or accused person, taken
in accordance with law, and purporting to be signed
by any Judge or Magistrate, or by any such officer as
aforesaid, the Court shall presume— that the
document is genuine; that any statements as to the
circumstances under which it was taken, purporting
to be made by the person signing it, are true, and
that such evidence, statement or confession was duly
taken."
20. The question as to whether such presumption is applicable to
the statement (memorandum of identification proceedings) recorded
by a Magistrate under Section 164 Cr.P.C. has been elaborately dealt
with by a Three Judges Bench in Sheo Raj vs. State (1963) SCC
OnLine All 123) and held that a statement made under Section 164,
Cr. P. C. is not 'evidence', is not made in a 'judicial proceeding' and is
not given under oath. It has been held therein as under:-
" .... it is open to any person to make a statement
or confession before a Magistrate (of a certain
class) in to course of an investigation, or at any
time thereafter, but before the commencement of
an enquiry or trial and the statement or confession
will be recorded by the Magistrate under Sec.164
and is not subject to the bar imposed by Sec. 162.
Such a statement, being a previous statement,
may be used only to contradict the person when he
appears as a witness at the enquiry or trial of the
offence or to corroborate him. A statement made
by a person before a Magistrate of the required
class holding an identification proceeding and
recorded by him is a statement governed by Sec.
164; there is no dispute on this point. It is to be
noted that Sec. 164 simply mentions “any
statement or confession made to him in the course
of an investigation” and not “any statement or
confession made to him in the course of an
investigation by any witness or accused person.” It
does not state whose statement of confession is to
be recorded by him Actually at this stage, when the
offence is still under investigation, there are no
witnesses and no accused persons (except in the
sense of persons against whom a charge of having
committed the offence is levelled and is under
investigation). It is only after the investigation has
been completed that the police can decide who is
to be the accused of the offence before a
Magistrate and who are to be the witnesses in the
case. Till then there can be no decision about the
status of a person as an accused person or as a
witness and all persons examined by the police
during the investigation are mere interrogatories or
informants or statement-makers. The provisions in
the Code relating to investigation do not refer to
any person as a witness. Though “witness” is not
defined in the Evidence Act, Secs. 118, 119 and
120 of it make it clear that a witness is a person
who testifies before a court. Under section 59 all
facts may be proved by oral evidence and “oral
evidence” is defined in Sec. 3 to mean and include
all statements made by witnesses before a court.
The definition of “proved” shows that the question
of proof of a fact arises only before a court so long
as there is no court there is no question of a fact
being proved and consequently no question of oral
evidence and witnesses. Evidence can be given
only in respect of the existence or non-existence of
a fact in issue or a relevant fact, vide Sec. 5. Which
is a fact in issue or a relevant fact is a matter that
arises only before a court because only before a
court there can arise the question whether a
certain fact is proved or not. These provisions of
the Evidence Act make it clear that no person can
claim the status of a witness except in relation to a
proceeding before a court. It follows that while an
offence is still under investigation there is nobody
who can be called “witness” and there is no
statement that can be called “evidence.”
A Magistrate is certainly authorized by law to take
evidence but only in a case of which he has taken
cognizance; he is not authorised by law to take
evidence in a case pending before another
Magistrate or in a case that has already been
decided by himself or another Magistrate or in a
case that has not yet reached a court. He is not
authorized by law to record evidence of any person
in any matter and in any circumstance. A
Magistrate recording a statement under Sec. 164 is
not authorized by law to take evidence for the
simple reason that he is not charged with the fluty
(sic for "duty") of deciding any case and there is
no matter to be proved or disproved before him.
The other alternative is that the evidence must
have been given in a judicial proceeding. When a
Magistrate records a statement under Sec. 164
there are only two proceedings in which it can
possibly be said to have been recorded, (1) the
investigation by the police and (2) the proceeding
of recording the statement itself. The investigation
by the police is not a judicial proceeding. “Judicial
proceeding” is not defined in the Evidence Act, but
since we are concerned with a statement recorded
under the Code of Criminal Procedure the question
whether it was recorded in a judicial proceeding or
not must be decided in the light of the definition
given in the code. “Judicial proceeding” is defined
in Sec. 4(1)(m) to mean “any proceeding in the
course of which evidence is or may be legally taken
on oath.” If evidence may be legally taken on oath
it is enough even though evidence is actually not
taken on oath. An investigation is a judicial
proceeding only if it can be predicated that in the
course of it evidence may be legally taken on oath.
“In the course of which” means “in the carrying out
of which” or “in the conducting of which” and not
“during the pendency of which.” Anything that is
done while a proceeding is pending is not
necessarily done in the course of it; if it is not a
part of it or is done by one not connected with it, it
is not done in the course of it even though it is
done during its pendency. In the course of an
investigation no evidence can be legally taken on
oath by anybody concerned in the investigation.
The police have no power to administer oath. As I
explained earlier, there is no question of evidence
being taken in the course of an investigation. If a
Magistrate does something while an investigation is
pending it is not done in the course of it. An
investigation which would not be a judicial
proceeding if a Magistrate did not do something
during its pendency does not become one simply
because he does something, such as recording a
statement under Sec. 164. Since an investigation is
to be done solely by the police nothing that he
does during its pendency becomes a part of it and
can be said to have been done in the course of it.
Consequently even if a Magistrate can legally
administer oath to a person before recording his
statement under Sec. 164 the investigation does
12. Thus I find that the statement made by a
person under Sec. 164 cannot be said to be made
in a judicial proceeding. Sec. 80, Evidence Act, is,
therefore, not applicable to it."
21. The principles laid down in the above decision make it clear
that presumption under Section 80 of the Indian Evidence Act, 1872
cannot be drawn to rely upon the Statements of witnesses recorded
under Section 164 Cr.P.C during investigation to render a conviction.
22. Coming to the issue of bloodstains found in the shirt of the
appellant M.O.5, recovered at his instance, this court finds that the
witness to such recovery have also turned hostile, which, in turn,
makes the recovery itself unbelievable. Of course, it is the case of the
prosecution that the shirt of the appellant was found to have stained
with human blood of “B” group, which was the same “blood group” as
that of the deceased. However, it is relevant to note that mere
matching of blood group itself is not sufficient to convict the accused.
In Sonvir @ Somvir vs. State of NCT of Delhi (2018) 8 SCC 24, it
has been held as under:-
3. Alleged recovery of bloodstained shirt
As per the prosecution, a bloodstained shirt
was recovered at the instance of Sonvir alias Somvir
(Appellant-Accused 2) from his room in the house of
Teja Chaudhary, at the time of his arrest. The
bloodstained shirt was sent for analysis to the FSL. As
per the FSL report (Ext. PW 33/A), the shirt allegedly
recovered from Sonvir alias Somvir (Appellant-
Accused 2) was found to be stained with human
blood of “B” group, which was the same “blood
group” as that of the deceased.
In para 20, the High Court held the recovery of
the bloodstained shirt from Sonvir alias Somvir
(Appellant-Accused 2) to be incriminating against
him, since the blood samples taken from the
bedsheet at the scene of crime, were also found to be
of the same blood group.
It is relevant to note that as per the FSL report
(Ext. PW 33/A), both the bloodstained shirt allegedly
recovered from Sonvir alias Somvir (Appellant-
Accused 2) and the blood samples taken from the
bedsheet at the scene of crime were found to be
stained with human blood of “B” group.
The mere matching of the blood group of the
blood samples taken from the bedsheet at the scene
of crime, and the bloodstained shirt recovered from
Sonvir alias Somvir (Appellant-Accused 2) cannot
lead to the conclusion that the appellant had been
involved in the commission of the crime.
On this issue, reliance can be placed on two
decisions of this Court in Prakash v. State of
Karnataka [Prakash v. State of Karnataka, (2014) 12
SCC 133 : (2014) 6 SCC (Cri) 642] , paras 41 and 45
and Debapriya Pal v. State of W.B. [Debapriya Pal v.
State of W.B., (2017) 11 SCC 31 : (2017) 3 SCC
(Cri) 832] , para 8 wherein this Court while deciding
cases based on circumstantial evidence had held that
mere matching of the blood group cannot lead to the
conclusion of the culpability of the accused, in the
absence of a detailed serological comparison, since
millions of people would have the same blood group.
In the present case, the prosecution has not
proved that the room from where the bloodstained
knife and bloodstained shirt were allegedly
recovered, was in the exclusive possession of the
appellant. The prosecution case is that the said room
was in the house owned by one Teja Chaudhary. The
prosecution did not examine the said Teja Chaudhary
to prove that the said room was rented to Sonvir
alias Somvir and/or was in the exclusive custody of
the appellant.
Therefore, the recovery of the bloodstained
shirt from Sonvir alias Somvir (Appellant-Accused 2)
cannot be used as an incriminating piece of
evidence."
23. In this case, as stated above, the eyewitnesses (including
the close relative of the deceased) and the recovery witnesses have
not supported the case of the prosecution. Such being fatal to the
prosecution case, though there is medical evidence to the effect that
the bloodstains on the shirt of the appellant was found to belong "B"
group and it matched with the blood group of the deceased, PW17,
Scientific Officer, during his cross examination, had admitted that in
Ex.P20 serology report, it has not been specifically mentioned as to
whether the blood group is 'B' positive or 'B' negative. Even assuming
that it matches completely, that alone cannot lead to a conclusion of
the culpability of the appellant/accused in the absence of a detailed
serological comparison and it cannot be used as an incriminating piece
of evidence as against the appellant, when especially, the recovery of
the shirt of the appellant is unbelievable in view of the fact that the
witness to the recovery had also turned hostile.
24. Therefore, this court is of the view that the prosecution has
not proved its case beyond all reasonable doubt and in such
circumstances, it may not be proper to convict the appellant/accused
on the materials available on record. However, the Trial court, having
misled itself into a specious reasoning that there is corroboration
between the statements of the witnesses recorded under Section 164
Cr.P.C and the medical evidence, had proceeded to render a conviction
against the appellant, which, we cannot endorse, in view of the law
laid down in the decisions cited supra.
25. In view of the above, the judgment of conviction and
sentence rendered by the Additional District and Sessions Judge, Fast
Track Court, Vellore made in S.C.No.90 of 2017 dated 11.9.2018 is set
aside and the appellant is acquitted of all the charges. The appellant is
set at liberty. Bail bond executed, if any, shall stand cancelled. Fine
amount paid, if any, shall be refunded to the appellant.
1. Additional District and Sessions Judge,
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The Madras High Court recently set aside an order of conviction of a man accused of murder after observing that the trial court was misled in corroborating the statement of witnesses recorded under S. 164 CrPC with the medical evidence when in fact all the independent witnesses had turned hostile. Justice S Vaidyanathan and Justice AD Jagdish Chandira took note of the judicial...
The Madras High Court recently set aside an order of conviction of a man accused of murder after observing that the trial court was misled in corroborating the statement of witnesses recorded under S. 164 CrPC with the medical evidence when in fact all the independent witnesses had turned hostile.
Justice S Vaidyanathan and Justice AD Jagdish Chandira took note of the judicial precedents where the courts have clearly laid down that the statements recorded under Section 164 of the CrPC are not substantive evidence and that they can only be used to corroborate/contradict the statement of a witness.
In the present case, the appellant was alleged to have assaulted the deceased with whom he had been living for twenty years resulting in her death. It was alleged that the appellant was already married and had three daughters. When he demanded the deceased to transfer her title in the house property in the name of the daughters, she refused the same. The appellant then developed doubt on the conduct of the deceased and used to pick up frequent quarrel with her and beat her, it was alleged. The deceased lodged a complaint before the police and the issue was settled. However, later the appellant attacked the deceased with a wooden log and she succumbed to her injuries. The appellant was convicted by the trial court under Sections 302 and 352 of IPC.
The appellant submitted that the order of conviction was against law as the trial court failed to take note of the fact that all the eyewitnesses had turned hostile and there was no admissible evidence against the appellant to convict him. The trial court had erred in relying upon the statements of the witnesses recorded under Section 164 CrPC to convict the appellant. He submitted that the law clearly stated that statements recorded under Section 164 Cr.P.C. can either be utilised only to corroborate or contradict the witnesses vis-a-vis statement made in court and it cannot be a substantive piece of evidence. Thus, the trial court had erred in ordering conviction especially when the prosecution had not taken any steps to contradict the witnesses who turned hostile.
It was further submitted that since the mahazar witnesses had turned hostile, the recovery of material objects itself was unbelievable. Further, the prosecution had also not established the title of the deceased to the house property which was the alleged motive for the offense.
The respondent state, on the other hand argued that prosecution witnesses turning hostile could not be a ground for acquittal of the accused. He further submitted that the prosecution witnesses had given a clear and cogent statement (under Section 164 CrPC) before the Judicial Magistrate which is corroborated by the medical evidence.
The court, after hearing both the sides reiterated the legal position that a statement recorded under Section 164 of the Code of Criminal Procedure is not substantive evidence and it can be used to corroborate the statement of a witness and it can be used to contradict a witness. The same was upheld by the court in RamKishan Singh vs. Harmit Kaur and another (1972) 3 SCC 280 and later in BaijNath Sah vs. State of Bihar (2010) 6 SCC 736.
The High Court noted that in the present case, the trial court had proceeded to hold that even though the eyewitnesses had turned hostile, their statements under Section 164 CrPC corroborates the medical evidence. The trial court however, had ignored the fact that though the occurrence took place on 20.09.2010, the statements were recorded on 06.10.2010. "Such a long delay in recording the statements of the witnesses speaks much."
The trial court had taken presumption under Section 80 of the Indian Evidence Act, 1872 as to documents produced as record of evidence. However, in Sheo Raj vs. State (1963) SCC OnLine All123) a three judge bench had clearly laid down that presumption under Section 80 of the Evidence Act was not applicable to the statements recorded by a Magistrate under Section 164 CrPC as these statements were not 'evidence', was not made in a 'judicial proceeding' and was not given under oath.
Even though the prosecution contended that bloodstains found on the shirt of the appellant was the same blood group as that of the deceased, the court held that mere matching of blood group itself was not sufficient to convict the accused as was held in the case of Sonvir @ Somvir vs. State of NCTof Delhi (2018) 8 SCC 24.
Taking all these into consideration, the court opined that the prosecution had not proved its case beyond all reasonable doubt and in such circumstances, it was not proper to convict the appellant/accused on the materials available on record. The trial court had misled itself into a specious reasoning that there is corroboration between the statements of the witnesses recorded under Section 164 Cr.P.C and the medical evidence. Observing that the same could not be endorsed by the court, the court set aside the order of conviction of the trial court and acquitted the appellant of all charges.
Case Title: Siva v. State by Inspector of Police
Case No: Criminal Appeal No.642 of 2018
Counsel for the Appellant: Mr.T.R.Ravi
Counsel for the Respondent: Mr.Babu Muthumeeran, Additional Public Prosecutor
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N: Criminal Appeal No. 690 of 1982 etc.
From the Judgment and order dated 20.5.1982 of the Patna High Court in Criminal Appeal No. 329 of 1980.
R.K. Garg, R.K. Jain, Rajendra Singh, S.N. Jha, R.P. Singh, Rakesh Khanna, Md. Israeli and Ranjit Kumar for the Appellants.
Pramod Swaroop and Mrs. G.S. Misra for the Respondents.
B.B. Singh (Not Present) for the Respondents.
A.K. Panda for the Complainant in all the appeals.
The Judgment of the Court was delivered by DUTT, J.
These appeals are directed against the judgment of the Patna High Court affirming the order of the First Additional Sessions Judge, Arrah, convicting all the appellants under sections 302/34 IPC and section 27 of the Arms Act and sentencing each of them to rigorous imprisonment for life and rigorous imprisonment for three years respectively and further convicting the appellant Hare Krishna Singh under section 379 IPC and sentencing him to rigorous imprisonment for three years; all the sentences are to run concurrently.
The accused included two persons having the same name Paras Singh, one of Village Dhobaha, brother in law of Hare Krishna Singh, one of the appellants in Criminal Appeal No. 690 of 1982, and the other of Village Birampur and nephew of Jagdish Singh, the appellant in Criminal Appeal No. 616 of 1982.
We shall hereinafter refer to 6 the said two persons as 'Paras Singh of Dhobaha ' and 'Paras Singh of Birampur ' respectively.
The prosecution case as appearing from the Fardbeyan or the FIR lodged by one Sarabjit Tiwary (P.W. 3), a social worker, on 12.12.1987 in the Arrah Sadar Police Station, was that on that day at about 7.00 A.M. he was going to his brother in law Raghubir Mishra and just he reached near the main gate of the Sadar Hospital, he saw seven persons, namely, "(1) Hare Krishna Singh, resident of Dhanpura; (2) Sheo Narain Sharma, resident of Berkhembe Gali; (3) Ram Kumar Upadhyaya, resident of village Dumaria; (4) Jagdish Singh 's nephew of Birampur in military service; (5) brother in law of Hare Krishna Singh of Dhobaha in military service" and two more persons whom he could not identify.
All the said persons were armed with rifle, gun and pistol, and were standing near northern side of the eastern gate of the hospital.
At that time, two Rickshaws were coming from the eastern side.
In the front Rickshaw, Jitendra Choudhary and another person named Lallan Rai, Resident of village Maniya, were sitting and in the rear Rickshaw there were two girls.
As the Rickshaw of Jitendra Choudhary came near the persons mentioned above, all of a sudden, Hare Krishna Singh fired at Jitendra Choudhary from his gun, whereupon the latter fell down from the Rickshaw with the rifle which he was carrying with him.
The other persons also fired upon Jitendra Choudhary along with Hare Krishna Singh, as a result of which he died.
After that Hare Krishna Singh picked up the rifle of Jitendra Choudhary and touching his body said, "He is dead, let us take to our heels".
It may be mentioned here that the two girls referred to in the Fardbeyan or FIR are Premlata Choudhary (P.W. 1) and Sobha Choudhary (P.W. 2), sisters of the deceased Jitendra Choudhary.
After investigation by P.W. 9, the chargesheet was submitted against all the appellants and they were put up for trial.
The prosecution examined as many as 9 witnesses, of whom P.Ws. 1, 2, 3 and 8 were eye witnesses.
The defence of Hare Krishna Singh was that he was going to Patna along with the appellant Ram Kumar Upadhyaya and one Madan Singh in a Rickshaw and when the Rickshaw reached near the shop of Sita Ram, he received a bullet from behind and fell down.
He looked back and saw that one Dipu Prasad and Ram Lal were firing.
He also saw the deceased Jitendra Choudhary, Chhatu Choudhary and Lallan Rai (P.W. 8) firing from the eastern gate of the Hospital.
He examined five witnesses, D.Ws. 1 to 5, to prove the nature of injury sustained by him.
7 The defence of Paras Singh of Dhobaha was that he had not visited the village Dhanpura for the last fifteen years.
The defence of other appellants is also a denial of their complicity in the crime.
The learned Additional Sessions Judge, after an elaborate discussion and analysis of the evidence adduced on behalf of the parties, accepted the prosecution case and convicted and sentenced the appellants as mentioned above.
Regarding the injury sustained by Hare Krishna Singh, the learned Additional Sessions Judge was of the view that such injury had been deliberately introduced by him and held that he was not injured in the occurrence.
On appeal by the appellants, the High Court affirmed their convictions and sentences.
Hence these appeals be special leave.
It is contended by Mr. Garg, learned Counsel appearing on behalf of Hare Krishna Singh, one of the appellants in Criminal Appeal No. 690 of 1982, that the prosecution having failed to explain the injury sustained by the appellant in the same occurrence, such injury being a serious one, the prosecution witnesses should be disbelieved.
Counsel submits that in such circumstances, it should be held that the plea of the appellant of self defence has been probabilised, and that the prosecution must have withheld the true facts as to the genesis and origin of the occurrence.
Further, it is submitted that in any event, it has cast a great doubt on the prosecution case and the benefit of that doubt should go to the appellant.
The question, however, is whether it is an invariable rule that whenever an accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved.
Before answering the question we may refer to a few decisions of this Court cited at the Bar.
Mr. Garg has placed much reliance upon the decision of this Court in Lakshmi Singh vs State of Bihar, In that case, the accused sustained injuries in the same occurrence.
Fazal Ali, J., who delivered the judgment of the Court, observed that no independent witness had been examined by the prosecution to support the participation of the appellant in the assault.
Further, it was observed that the evidence of P.Ws. 1 to 4 clearly showed that they gave graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gave an impression that they had given a parrot like version acting under a conspiracy to depose to one set of facts and one set of facts only.
In view of the nature of evidence of P.Ws. 1 to 4, this 8 Court accepted the contention made on behalf of the accused, particularly taking the entire picture of the narrative given by the witnesses, that P.Ws. 1 to 4 had combined together to implicate the accused falsely because of the long standing litigation between them and the said witnesses.
Thereafter, the Court considered the injuries that were inflicted on the person of the accused Dasrath Singh and laid down that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witness is untrue; and (2) that the injuries probabilise the plea taken by the appellants.
The principle of law laid down in the earlier decision of this Court in Mohar Rai vs State o f Bihar; , was followed.
In Mohar Rai 's case it has been laid down that in a murder case, the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the case of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are Lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The principles that have been laid down in Lakshmi Singh 's case have to be read in the context of the facts of that case.
It has been already pointed out that the prosecution witnesses have been disbelieved by this Court before it considered the question of failure of the prosecution to explain the injuries sustained by one of the accused.
If the prosecution witnesses had been believed in that case, the non explanation of the injuries sustained by the accused would not have affected the prosecution case.
Indeed, it has been laid down in Lakshmi Singh 's case that the non explanation of the injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
In Mohar Rai 's case (supra), the first appellant Mohar Rai was convicted under section 324 IPC for shooting and injuring P.W 1 at the instigation of the second appellant Bharat Rai, who was himself convicted of an offence under section 324 read with section 109 IPC.
9 The prosecution proceeded on the basis that the revolver (exhibit III), which was recovered from Mohar Rai, was the weapon that was used by him in the commission of the offence.
The ballistic expert, who was examined as D.W. 1, was positive that the seized empties as well as the misfired cartridge could not have been fired from exhibit III.
The evidence of D.W. 1 was accepted both by the trial court as well as by the High Court.
This Court rejected the prosecution case that Mohar Rai had fired three shots from exhibit III.
This Court held that once it was proved that the empties recovered from the scene could not have been fired from exhibit III, the prosecution case that those empties were fired from exhibit III by Mohar Rai stood falsified.
Thereafter, the injuries sustained by the two appellants, Mohar Rai and Bharath Rai, were considered by the Court and it held that the prosecution had failed to explain the injuries sustained by the appellants and observed that the failure of the prosecution to offer any explanation in that regard showed that the evidence of prosecution witnesses relating to the incident was not true or, at any rate, not wholly true.
Thus, in this case also the question of non explanation of the injuries on the accused was considered by the Court after it had rejected, on a consideration of evidence, the prosecution case that Mohar Rai had fired from the revolver (exhibit III).
In other words, if the prosecution case had been believed that the appellant Mohar Rai had fired from exhibit III injuring P.W. 1, the non explanation of the injuries sustained by the accused would not have affected the prosecution case.
On the other hand, in Bhaba Nanda Sharma vs State of Assam ; it has been categorically laid down by this Court that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances.
It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused.
In Ramlagan Singh vs State of Bihar, this Court again examined the question and it has been laid down that the prosecution is not called upon in all cases to explain the injuries received by the accused persons.
It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons.
When that is not done, there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused.
In the instant case also, the injury sustained by the appellant Hare Krishna Singh, has not been put to the prosecution witnesses and so they had no occasion to explain the same.
In such circumstances, as laid down in Ramlagan Singh 's case, the non mention of the injuries on the person of the appellant in the prosecution evidence would not 10 affect the prosecution case, which has been accepted by the courts below.
In Onkarnath Singh vs State of U. P., this Court has reiterated its view as expressed in Bankey Lal vs State of U.P., and Bhagwan Tana Patil vs State of Maharashtra, that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused.
Thereafter, it was observed as follows: "Such non explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care.
Each case presents its own features.
In some case, the failure of the prosecution to account for the in juries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case.
It may also, in a given case, strengthen the plea of private defence set up by the accused.
But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party.
For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises.
Much reliance has been placed by Mr. Garg on the following observation of Fazal Ali, J. in Jagdish vs State of Rajasthan, ; "It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated.
But before this obligation is placed on the prosecution two conditions must be satisfied; 11 1.
that the injuries on the person of the accused must be very serious and severe and not superficial; 2. that it must be shown that these injuries must have been caused at the time of the occurrence in question.
" In Jagdish 's case, the High Court believed the prosecution witnesses and accepted the prosecution case that the injuries found on the deceased were very severe which resulted in his death and this Court agreed with the view taken by the High Court in convicting the appellant under section 302 IPC.
In regard to this point we may cite two other decisions relating to the plea of the accused of private defence.
In Munshi Ram vs Delhi Administration, it has been held by this Court that although the accused have not taken the plea of private defence in their statements under section 342 Cr. P.C., necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence.
It has been observed that even if an accused does not plead self defence, it is open to the court to consider such plea if the same arises from the material on record.
The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
Munshi Ram 's case arises out of a dispute over the possession of land.
The case of the appellants that their relation was a tenant of the disputed land for over thirty years and that his tenancy was never terminated, was accepted by this Court.
In other words, the appellants were found to be in lawful possession of the land in question and that P.Ws. 17 and 19 had gone to the land with their friends, P.W. 19 being armed with a deadly weapon, with a view to intimidating the relation of the appellants, whose tenancy was not terminated.
They were held to be guilty of criminal trespass and of constituting an unlawful assembly.
In the context of the above facts, this Court made the observation that it is open to the court to consider the plea of private defence even though the same does not find place in the statement under section 342 Cr.
The next case that has been relied upon by Mr. Garg is that of State of Gujarat vs Bai Fatima, in that case, on behalf of the appellants the decision in Munshi Ram 's case (supra) was relied 12 upon in regard to the question of the plea of private defence.
In rejecting the contention of the accused, this Court pointed out that not only the plea of private defence was not taken by the accused in their statements under section 342 Cr.
P.C., but no basis for that plea was laid in the cross examination of the prosecution witnesses or by adducing any defence evidence.
As regards the injuries sustained by one of the accused, this Court observed as follows: "In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased before P.W. Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No. 1.
The prosecution case is not shaken at all on that account.
We have referred to the above decisions in extenso in order to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence.
Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case.
In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence.
The burden of proving the guilt of the accused is undoubtedly on the prosecution.
The accused is not bound to say anything in defence.
The prosecution has to prove the guilt of the accused beyond all reasonable doubts.
If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise.
When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.
The accused may take the plea of the right of private defence which means that he had inflicted injury on the deceased or the injured 13 person in exercise of his right of private defence.
In other words, his plea may be that the deceased or the injured person was the aggressor and inflicted injury on the accused and in order to defend himself from being the victim of such aggression, he had inflicted injury on the aggressor in the exercise of his right of private defence.
As has been held in Munshi Ram 's case (supra) the burden of establishing the plea of private defence is on the accused and the burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
It, therefore, follows that simply because the accused has received injuries in the same occurrence, it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently, he had to defend himself by inflicting injury on the deceased or the injured person.
All the decisions of this Court which have been referred to and discussed above, show that when the court has believed the prosecution witnesses as convincing and trustworthy, the court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted.
Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.
The learned Additional Sessions Judge has not believed the case of Hare Krishna Singh that he had sustained a bullet injury in the same occurrence and he has given reasons therefor.
The High Court has, however, come to the finding that Hare Krishna Singh was admitted in the hospital in an injured condition immediately after the occurrence.
We do not propose to reassess evidence on the question as to whether Hare Krishna Singh had sustained any injury or not.
We may assume that he had sustained a bullet injury in the same occurrence.
But, even then, in the facts and circumstances of the case the prosecution, in our opinion, is not obliged to account for the injury and that the failure of the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case.
The injury that was sustained by Hare Krishna Singh was on the back.
The P.Ws. 1 and 2, the two sisters of the deceased Jitendra Choudhary, denied the suggestion put to them on behalf of Hare Krishna Singh that their brother Jitendra Choudhary had been shoot 14 ing from his rifle.
P.W. 3, who is an independent witness and was present on the scene of occurrence, also denied the suggestion of the defence that there was firing on Hare Krishna Singh.
P.W. 8 Lallan Rai also denied such suggestion of the defence.
Hare Krishna Singh made a statement under section 313 Cr.
It is not his case that in self defence he had fired at the deceased Jitendra Choudhary.
He denied that he had any fire arms with him or that he had fired at Jitendra Choudhary.
He also denied that none of the accused had any weapon with him.
All the eye witnesses have stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of which he died.
The prosecution witnesses have been believed by the learned Additional Sessions Judge and the High Court.
In the circumstances, we do not think that the materials on record including the statement of Hare Krishna Singh under section 313 Cr. P.C., probabilise any case of self defence or that the deceased had inflicted on him the injury by firing at him from his rifle.
It may be that two empties were found by the side of the dead body of the deceased, but the High Court has rightly observed that the presence of the empties does not necessarily mean that the deceased had fired.
The High Court points out that three live cartridges were also recovered from the pocket of the deceased at the time of inquest and observes that keeping of empty cartridges by the side of the body of the deceased cannot be ruled out.
We do not find any infirmity in the view expressed by the High Court.
It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused.
In the circumstances, we are of the view that the appellant Hare Krishna Singh has been rightly convicted and sentenced as above.
Now we may deal with the case of Paras Singh of Dhobaha, one of the appellants in Criminal Appeal No. 690 of 1982.
He was found with the accused persons including Hare Krishna Singh.
It is not disputed that he is the brother in law of Hare Krishna Singh, as he has been described in the FIR.
It is the categorical evidence of P.Ws. 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary.
He has been identified by P.W. 1 in the T.I. Parade.
In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below.
So far as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing.
Indeed, Mr. Rajender 15 Singh, the learned Counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence.
In the FIR, his name has not been mentioned, it has only been stated "Jagdish Singh 's nephew who is in military job of Birampur".
Jagdish Singh may have more than one nephew.
The I.O. (P.W. 9) in his evidence has stated that before the arrest of Paras Singh of Birampur, he did not know his name and he cannot say how many nephews Jagdish Singh has.
The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service.
The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service.
Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singh 's nephew as given in the FIR.
The most significant fact is that P.W. 3 failed to identify the appellant in the T.I. Parade.
P.W. 8 did not attend the T.I. Parade.
His case is that he was not called to attend the T.I. Parade.
On the other hand, it is the defence case that P.W. 8 was called but he did not attend the T.I. Parade.
Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by P.W. 8.
In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of P.Ws. 3 and 8 made before the police mentioning the name of Paras Singh of Birampur.
It is true that P.Ws. 3 and 8 identified Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that P.W. 3 had failed to identify him in the T.I. Parade.
In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime.
Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence.
His conviction and sentence cannot, therefore, be sustained.
Now we may consider the cases of the remaining two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal Appeal No. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982.
These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary.
Both of them have been named in the FIR.
It is submitted by the learned Counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them.
It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but, the 16 learned Counsel submits, that fact will not be sufficient to impute common intention to them.
So far as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he went with Hare Krishna Singh, but there is no evidence that he had also left the place of occurrence with him.
It is the evidence of all the eye witnesses, namely, P.Ws. 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the Rickshaw in front of the gate.
Thereafter, Paras Singh of Dhobaha also fired at the deceased.
After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased, P.W. 3 stated that thereafter two/three firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary.
P.W. 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary.
It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased.
Except mentioning that these two appellants were present, no overt act was attributed to either of them.
The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also.
Common intention under section 34 IPC is not by itself an offence.
But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention.
As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha.
When these two appellants were very much known to the eye witnesses, non mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention.
The convictions and sentences of these two appellants also cannot, therefore, be sustained.
For the reasons aforesaid, the convictions and sentences of Hare Krishna Singh and Paras Singh of Dhobaha are affirmed.
Criminal Appeal No. 690 of 1982, in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha, is dismissed.
17 The conviction and sentence of Sheo Narain Sharma are set aside A and he is acquitted of all the charges.
Criminal Appeal No. 690 of 1982, in so far as it relates to Sheo Narain Sharma, is allowed.
Criminal Appeal No. 615 of 1982 is allowed.
The conviction and sentence of Ram Kumar Upadhaya are set aside and he is acquitted of all the charges.
Criminal Appeal No. 616 of 1982 is allowed.
The conviction and sentence of Paras Singh of Birampur are set aside and he is acquitted of all the charges.
|
% The prosecution case as appearing from the Fardbeyan or the FIR lodged by P.W. 3, a social worker was that on 12.12.1987 at about 7.00 A.M. he was going to his brother in law and just as he reached the main gate of the Sadar Hospital, he saw seven persons: (1) Hare Krishna Singh.
(2) Sheo Narain Sharma, (3) Ram Kumar Upadhyaya, (4) Jagdish Singh 's nephew Paras Singh of Birampur, (5) Hare Krishna Singh 's brother in law, Paras Nath Singh of Dhobaha, the appellants and two more whom he could not identify.
All these persons were armed with rifle, gun and pistol and were standing near the northern side of the eastern gate, of the Hospital.
At that time two Rickshaws were coming from the eastern side.
In the front rickshaw the deceased Jitendra Choudhary, was sitting along with another person and in the rear rickshaw were his two sisters, PW I and PW 2.
As the rickshaw of the deceased came close to these seven persons, Hare Krishna Singh fired at the deceased from his gun, whereupon the latter fell down from the rickshaw with the rifle which he was carrying.
The other persons also fired upon the deceased as a result of which he died.
After that Hare Krishna Singh picked up the rifle of the deceased and took to his heels.
After investigation by PW 9, the charge sheet was submitted against all the appellants and they were put up for trial.
The prosecution examined as many as 9 witnesses of whom PWs.
1, 2, 3 and 8 were eye witnesses.
The defence of the appellant Hare 2 Krishna Singh was that while he was going to Patna along with appellant Ram Kumar Upadhyaya and one Madan Singh in a rickshaw, and that when the rickshaw in which the deceased was travelling came close to him, the deceased fired at him and that he sustained injuries.
He examined five witnesses DWs.
1 to 5, to prove the nature of injury sustained by him.
The defence of Paras Singh of Dhobaha was that he had not visited the village for the last fifteen years, while the defence of the other remaining appellants was a denial of their complicity in the crime.
The Additional Sessions Judge accepted the prosecution case, and convicted and sentenced the appellants to various periods of imprisonment.
On appeal by the appellants the High Court affirmed the convictions and sentences.
In the appeals by certificate to this Court it was contended: (a) on behalf of Hare Krishna Singh, appellant in Crl.
A. No. 690/82 that the prosecution having failed to explain the injury sustained by Hare Krishna Singh in the same occurrence, such injury being a serious one, the prosecution witnesses should be disbelieved, and that in such circumstances it should be held that the plea of the appellant of self defense shall be probabilised and that the prosecution must have withheld the true facts as to the genesis and origin of the occurrence, and that in any event a great doubt had been cast on the prosecution case and the benefit of that doubt should go to the appellant.
(b) on behalf of Paras Singh of Birampur, the nephew of Jagdish Singh, the sole appellant in Cr. A. No. 616/82 that in the FIR his name was not mentioned, that PW 3 failed to identify him in the T.I. Parade, that PW 8 did not attend the T.I. Parade, and that he was not present at the time of occurrence.
(c) on behalf of Sheo Narain Sharma the remaining appellant in Crl.
A. No. 690/82 and Ram Kumar Upadhayaya sole appellant in Crl.
A. No. 615/82, that no specific overt act had been attributed to either of them and the fact that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha could not be sufficient to impute common intention to them.
Dismissing Criminal Appeal No. 690 of 1982 in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha, and allowing it in 3 respect of Sheo Narain Sharma and acquitting him of all the charges; and allowing Crl.
A. Nos. 615 and 616 of 1982 and setting aside the convictions and sentences of Ram Kumar Upadhayaya and Paras Singh of Birampur and acquitting them of all the charges.
^ HELD: 1.
It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence.
The burden of proving the guilt of the accused is undoubtedly on the prosecution.
The accused is not bound to say anything in defence.
The prosecution has to prove the guilt of the accused beyond all reasonable doubts.
If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise.
[12E F]] 2.
When the prosecution comes with a definite case that the offence has been committed by the accused and proved its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances the injuries have been inflicted on the person of the accused.
[12G] 3.
Simply because the accused has received injuries in the same occurrence, it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently, he had to defend himself by inflicting injury on the deceased or the injured person.
[13B C] 4.
It is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.
[13D E]] 5.
Common intention under section 34 IPC is not by itself an offence.
But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention.
[16E F] 6.
As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhyaya and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha.
When these two appellants were very much known to the eye witnesses PW 3 and 8 non mention of their names in the evidence as to 4 their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention.
The conviction and sentences of these two appellants cannot therefore be sustained.
They are therefore acquitted of all the charges.
[16F G] 7.
The Additional Sessions Judge has not believed the case of R Hare Krishna Singh that he had sustained a bullet injury in the same occurrence and he has given reasons therefor.
The High Court has, however, come to the finding that Hare Krishna Singh was admitted in the hospital in an injured condition immediately after the occurrence.
In the facts and circumstances of the case the prosecution is not obliged to account for the injury and that the failure of the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case.
All the eye witnesses have stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of which he died.
The prosecution witnesses have been believed by the Additional Sessions Judge and High Court.
In these circumstances it cannot be thought that the materials on record including the statement of Hare Krishna Singh under section 313 Cr.
P.C. probablise any case of self defence or that the deceased had inflicted on him the injury by firing at him from his rifle.
The appellant Hare Krishna Singh has therefore, been rightly convicted and sentenced.
[13E G; 14B C, F] 8.
As regards Paras Singh of Dhobaha he was found with the accused persons including Hare Krishna Singh.
It is not disputed that he is the brother in law of Hare Krishna Singh as has been described in the FIR.
It is the categorical evidence of PWs.
1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased.
He has been identified by PW1 in the T.I. Parade.
In these circumstances there is no reason to interfere with the order of conviction and sentence passed by the Courts below.
[14F G]] 9.
The prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singh 's nephew as given in the FIR.
PW. 3 failed to identify the appellant in the T.I. Parade.
PW. 8 did not attend the T.I. Parade.
In such circumstances, the High Court was not justified and committed an error of law in relying upon the statements of PWs 3 and 8 made before the police mentioning the names of Paras Singh of Birampur.
The prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime and that he was present at the time of occurrence.
His conviction and sentence cannot therefore be sustained and are set aside.
He is acquitted of all the charges.
[15C F] 5 Bhaba Nanda Sharma vs State of Assam, ; ; Ramlagan Singh vs State of Bihar, ; Onkarnath Singh vs State of U.P., ; Bankey Lal vs State of U.P., and Bhagwan Tana Patil vs State of Maharashtra, , relied on.
Lakshmi Singh vs State of Bihar, ; Mohar Rai vs State of Bihar; ; ; Jagdish vs State of Rajasthan; , ; Munshi Ram vs Delhi Administration and State of Gujarat vs Bai Fatima, , distinguished.
|
: Criminal Appeal No. 43 of 1972.
From the Judgment and Order dated 11 5 71 of the Rajasthan High Court in D.B. Criminal Appeal No. 478/67.
Nemo: for the Appellant.
S.M. Jain for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal under section 2(a) of the (Act 28 of 1970) raises a short question as to the nature of the offence made out against the appellant on the basis of the evidence adduced in Sessions Case No. 64 of 1966.
The Sessions Judge, Udaipur, who tried the appellant found on a consideration of the evidence led in the case including the direct testimony of Mst.
Jelki (P.W. 3) and Mst.
Modan (P.W. 8) that the appellant attacked his wife, Mst.
Gajri with dagger (Exh. 1) and caused injuries on her person out of which injury No. 2 which had injured the liver and caused the perforation of the large colon was sufficient to cause her death in the ordinary course of nature.
Despite this finding, the Sessions Judge convicted the appellant under section 304 of the Indian Penal Code and acquitted him of the charge under section 302 of the Penal Code in view of the fact that Dr. Laxmi Narain (P.W. 1) who conducted the post mortem examination of the body of Mst.
Gajri had said in the course of his examination that if immediate expert treatment had been available and emergency operation had been performed, there were chances of her survival.
The Sessions Judge agreeing with the contention raised on behalf of the defence also found that according to the case of the prosecution itself, the accused had gone to the village of his in laws to fetch Mst.
Gajri and it was only on her refusal to accompany him that the incident took place; that he had no intention to kill Mst.
Gajri and that at best what could be attributed to the appellant was the knowledge that the injury he was inflicting on the deceased was likely to cause her death.
746 On the matter being taken in appeal by the State, the High Court found that the Sessions Judge was in error in acquitting the appellant of the offence under section 302 of the Indian Penal Code ignoring the evidence to the effect that a penetrating wound 11/2" X1/2" was caused by the appellant with a dagger on the posterior axillary line 10" from the top of the shoulder and 5" from the spine which had caused injury to the liver and perforation of the large colon and was sufficient to cause death in the ordinary course of nature.
Accordingly, the High Court altered the conviction of the appellant from the one under section 304 Part II of the Indian Penal Code to that under section 302 of the Penal Code and sentenced him to imprisonment for life.
Mr. K.K. Luthra who was appointed as amicus curiae in the case not having cared to appear despite long and anxious waiting, we have gone through the entire record with the assistance of counsel for the respondent.
The grounds of appeal submitted by the appellant which are very inartistically drafted can at best be interpreted to urge only one thing viz. that the High Court went wrong in upsetting the judgment and order of the Sessions Judge and convicting the appellant under section 302 of the Indian Penal Code instead of under section 304 Part II of the Penal Code as ordered by the Sessions Judge.
This contention, in our judgment, is entirely misconceived.
It completely overlooks the circumstances attending the commission of the offence viz. that the appellant went armed with a dagger and despite the willingness expressed by Mst.
Gajri to accompany him next morning, he inflicted without the slightest provocation two injuries on her person (1) which landed on her right palm 3/4" above the second metacarpo phalangeal joint in the process of warding off the blow and (2) a penetrating wound, as stated above.
The whole affair appears to be pre planned and pre meditated and as such the case squarely falls within the purview of clause thirdly of section 300 of the Indian Penal Code.
We are fortified in this view by two decisions of this Court viz. Virsa Singh vs The State of Punjab and State of Andhra Pradesh vs Rayavarapu Punnayya & Anr.
In Virsa Singh vs The State of Punjab (supra) where the accused thrust a spear into the abdomen of the deceased which resulted in his death and in the opinion of the doctor, the injury was sufficient to cause death in the ordinary course of nature, it was held that even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention 747 of causing death, the offence would be murder.
The following observations made by this Court in that case are worth quoting: "If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, clause 'thirdly ' would be unnecessary because the act would fall under the first part of the section, namely "If the act by which the death is caused is done with the intention of causing death.
" In our opinion, the two clauses are disjunctive and separate.
The first is subjective to the offender: "If it is done with the intention of causing bodily injury to any person.
" It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth.
These are purely objective facts and leave no room for interference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.
Once that is found, the enquiry shifts to the next clause "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
" The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man 's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved.
In that case, the first part of the clause does not come into play.
But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining 748 "and the bodily injury intended to be inflicted" is merely descriptive.
All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted.
Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.
In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted.
It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart.
Otherwise, a man who has no knowledge of anatomy could never be convicted, for if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them.
Of course, that is not the kind of enquiry.
It is broad based and simple and based on commonsense: the kind of enquiry that "twelve good men are true" could readily appreciate and understand.
To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300, "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, 749 Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under section 300, thirdly.
It does not matter that there was no intention to cause death.
It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two).
It does not even matter that there is no knowledge that an act of that kind will be likely to cause death.
Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.
No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder.
If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
" Similar view was expressed by this Court in State of Andhra Pradesh vs Rayavarapu Punnayya & Anr.
(Supra).
In the present case, the appellant appears to have intended to cause the death of Mst.
Gajri otherwise there was no necessity for him to carry the dagger with him when he went to the village of his in laws to fetch his wife.
That the appellant intended to cause the death of the deceased is further clear from the fact that he inflicted a through and through penetrating wound on the posterior axillary line which seriously injured the vital organs of the deceased viz. the liver and the large colon leading to internal haemorrhage and shock.
The injury in the opinion of the doctor being sufficient in the ordinary course of nature to cause the death of the deceased, the case squarely fell within the ambit of clause thirdly of section 300 of the Indian Penal Code as held by this Court in the decisions referred to above.
The mere fact that if immediate expert treatment had been available and the emergency operation had been performed, there were chances of survival of the deceased can be of no avail to the appellant.
750 Explanation 2 to section 299 of the Indian Penal Code clearly lays down that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
For the foregoing reasons, we are of the view that the Sessions Judge was wholly wrong in convicting the appellant under section 304 Part II of the Indian Penal Code and acquitting him of the charge under section 302 of the Penal Code and the High Court was wholly right in convicting the appellant under section 302 of the Penal Code instead of under section 304 Part II of the Penal Code.
In the result, we do not find any merit in this appeal which is dismissed.
S.R. Appeal dismissed.
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The appellant was charged and tried for the offence under Section 302 I.P.C. for causing the murder of his wife.
The Sessions Judge though on a consideration of the evidence led in the case including the direct testimony of Mst.
Jelki(PW 3) and Mst.
Modan (PW 8) found that the appellant attacked his wife.
Gajri with dagger (Ext.
I) and caused injuries on her person out of which injury No. 2 which had injured the liver and caused the perforation of the large colon was sufficient to cause her death in the ordinary course of nature, convicted him under Section 304 Part II I.P.C. and acquitted him of the charge under Section 302 Penal Code, in view of the fact that Dr. Laxmi Narain (PW 1) who conducted the postmortem examination of the body of Mst.
Gajri had said in the course of his examination that "if immediate expert treatment had been available and emergency operation had been performed there were chances of the survival".
In State appeal, the High Court altered the conviction of the appellant from one under Section 304 Part II I.P.C. to that under Section 302 I.P.C. and sentenced him to imprisonment for life.
Hence the appeal under Section 2(a) of the Supreme Court(Enlargement of Criminal Appellate Jurisdiction) Act (Act 28) 1970.
Dismissing the appeal, the Court ^ HELD: 1.
Explanation 2 to Section 299 of the Indian Penal Code clearly lays down that where death is caused by bodily injury the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
The mere fact that if immediate expert treatment had been available and the emergency operation had been performed, there were chances of survival of the deceased can be of no avail to the appellant.
[749H. 759A] 2.
The injury in the opinion of the doctor being sufficient in the ordinary course of nature to cause death of the deceased, the case squarely fell within the ambit of clause, Thirdly of Section 300 I.P.C. [749G] In the instant case, the appellant appears to have intended to cause the death of Mst.
Gajri otherwise there was no necessity for him to carry the dagger with him when he went to the village of his in laws to fetch his wife.
745 That the appellant intended to cause the death of the deceased is further clear from the fact that he inflicted a through and through penetrating wound on the posterior axillary line which seriously injured the vital organs of the deceased viz. the liver and the large colon leading to internal haemorrhage and shock.
[749F G] Virsa Singh vs The State of Punjab; , and State of Andhra Pradesh vs Rayavarapu Punnayya and Anr., ; ; reiterated.
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The petitioner-accused No.1 is before this Court seeking
grant of bail under Section 439 of Cr.P.C. in Crime No.36 of
2020 of Bagalur Police Station, pending in CC No.3468 of 2020
on the file of the learned V Additional District Judge, Bengaluru
Rural District at Devanahalli, registered for the offences
punishable under Sections 302, 120-B read with Section 149 of
the Indian Penal Code (for short 'IPC'), on the basis of the first
information lodged by the informant K Dhanalakshmi.
2. Heard Sri K Raghavendra Gowda, learned Counsel
for the petitioner and Sri K Rahul Rai, learned High Court
Government Pleader for the respondent -State. Perused the
materials on record.
3. Learned counsel for the petitioner submitted that
the petitioner is arrayed as accused No.1. He is innocent and
has not committed any offences as alleged. He has been falsely
implicated in the matter without any basis. He was
apprehended on 15.03.2020 and since then he is in judicial
custody. The investigation has been completed and the charge
sheet is also filed. The allegations against accused Nos.1 to 3
CRL.P No. 11294 of 2022
are similar with regard to the overt act said to have been
committed by them. However, accused Nos.2 and 3 have
already been enlarged on bail. Therefore, on the ground of
parity, this petitioner is also entitled to be enlarged on bail.
The petitioner is the permanent resident of the address
mentioned in the cause title to the petition and is ready and
willing to abide by any of the conditions that would be imposed
by this Court. Hence, he prays to allow the petition.
4. Per contra, learned High Court Government Pleader
opposing the petition submitted that serious allegations are
made against the petitioner for having committed the offences.
The present petitioner is the main accused. The charge sheet
is already filed which makes out a prima facie case against the
petitioner for having committed the offences. Considering the
nature and seriousness of the offences, the petitioner is not
entitled for grant of bail. Hence, he prays for dismissal of the
5. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would arise
for my consideration is:
“Whether the petitioner is entitled
for grant of bail under Section 439 of
My answer to the above point is in ‘Affirmative’ for the
6. The allegations made against the petitioner and
other accused are of serious nature. The charge sheet filed by
the Investigating Officer makes out a prima facie case against
all the accused including the petitioner. Admittedly, the overt
act alleged against the present petitioner is similar to that of
accused Nos.2 and 3. It is not in dispute that accused Nos.2
and 3 are already enlarged on bail. Under such circumstances,
benefit of parity is to be extended to the present petitioner.
Moreover, the investigation is completed and the charge sheet
is also filed. Therefore, detention of the petitioner in custody
would amount to infringement of his right to life and liberty.
Hence, I am of the opinion that the petitioner is entitled to be
enlarged on bail subject to conditions, which will take care of
the apprehension expressed by the learned High Court
CRL.P No. 11294 of 2022
Government Pleader that the petitioner may abscond or may
tamper or threaten the prosecution witnesses.
7. Accordingly, I answer the above point in the
affirmative and proceed to pass the following:
The petition is allowed.
The petitioner is ordered to be enlarged on bail in Crime
No.36 of 2020 of Bagalur Police Station, pending in CC No.3468
of 2020 on the file of the learned V Additional District Judge,
Bengaluru Rural District at Devanahalli, on obtaining the bond
in a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two
sureties for the likesum to the satisfaction of the jurisdictional
Court, subject to the following conditions:
a). The petitioner shall not commit similar
offences.
b). The petitioner shall not threaten or tamper
with the prosecution witnesses.
c). The petitioner shall appear before the Court
as and when required.
If in case, the petitioner violates any of the conditions as
stated above, the prosecution will be at liberty to move the
Trial Court seeking cancellation of bail.
On furnishing the sureties by the petitioner, the Trial
Court is at liberty to direct the Investigating Officer to verify
the correctness of the address and authenticity of the
documents furnished by the petitioner and the sureties and a
report may be called for in that regard, which is to be
submitted by the Investigating Officer within 5 days. The Trial
Court on satisfaction, may proceed to accept the sureties for
the purpose of releasing the petitioner on bail.
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The Karnataka High Court has granted bail to a murder accused, observing that though the allegations against him and others are of serious nature but the overt act alleged against him is similar to that of other accused, who have already been granted bail.
"The charge sheet filed by the Investigating Officer makes out a prima facie case against all the accused including the petitioner. Admittedly, the overt act alleged against the present petitioner is similar to that of accused Nos.2 and 3. It is not in dispute that accused Nos. 2 and 3 are already enlarged on bail. Under such circumstances, the benefit of parity is to be extended to the present petitioner," it said.
The court also noted that the investigation has been completed and the charge sheet has also been filed. "Therefore, detention of the petitioner in custody would amount to infringement of his right to life and liberty," it added.
A single judge bench of Justice M G Uma made the observations while granting bail to one Ravi @ Kamaran Ravi. The petitioner is charged for offences punishable under sections Sections 302, 120-B read with Section 149 of the Indian Penal Code, on the basis of the first information lodged by the informant K Dhanalakshmi, in 2020.
He approached the court seeking bail contending that he is innocent and has not committed any offences as alleged. He has been falsely implicated in the matter without any basis, his counsel argued. He was apprehended on 15.03.2020 and since then he has been in judicial custody, the court was told.
“The allegations against accused Nos.1 to 3 are similar with regard to the overt act said to have been committed by them. However, accused Nos.2 and 3 have already been enlarged on bail. Therefore, on the ground of parity, this petitioner is also entitled to be enlarged on bail," the counsel representing the accused submitted.
The prosecution opposed the plea saying serious allegations have been made against the petitioner for having committed the offences. The petitioner is the main accused, it said
"The charge sheet is already filed which makes out a prima facie case against the petitioner for having committed the offences. Considering the nature and seriousness of the offences, the petitioner is not entitled for grant of bail," the government pleader submitted.
Case Title: Ravi @ Kamran Ravi And State of Karnataka
Case No: CRIMINAL PETITION NO. 11294 OF 2022
Date of order: 05-01-2023
Appearance:
Advocate Raghavendra Gowda K, Advocate Mohankumara D for petitioner.
HCGP K. Rahul Rai for respondent.
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Appeal No. 239 of 1955.
Appeal from the Judgment and Decree dated the 30th November, 1953, of the former Nagpur High Court in First Appeal No. 118 of 1947, arising out of the Judgment and Decree dated the 12th August, 109 1947, of the Court of the Additional District Judge, Wardha, in Civil Suit No. 9 A of 1946.
M. C. Setalvad, Attorney General for India, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellants.
M. Adhikari, Advocate General for the State of Madhya Pradesh and 1.
N. Shroff, for the respondent.
January 21.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This is an appeal by the widow, and the minor son of Mangilal, defendant 1, and it has been filed with a certificate by the High Court of Judicature at Nagpur.
It arises out of a suit filed by the respondent Shrimati Lilabai w/o Vrijpalji, for the specific performance of a contract to lease or in the alternative for damages and for a declaration against defendant 2, the daughter of defendant 1 that she has no right, title or interest in the property in suit.
The respondent 's case was that defendant I had executed an instrument (exhibit P 1) in favour of the respondent by which he had contracted to lease to her in perpetuity in occupany right his four khudkasht lands admeasuring 95.19 acres situated in Mouza Mohammadpur in consideration of the debt of Rs. 8,700.
According to the respondent the instrument had provided that, if defendant 1 did not repay to her the said debt on June 1, 1944, the said contract of lease would be operative on and from that date.
Defendant 1 did not repay the loan by the stipulated date and so he became liable to perform and give effect to the said contract of lease on June 1, 1944.
The respondent repeatedly called upon defendant 1 to perform the said contract, but defendant I paid no heed to her demands and so she had to file the present suit for specific performance.
The respondent had been and was still ready and willing to specifically perform the agreement and to accept a deed of lease for the lands in question in lieu of the said debt of Rs. 8,700.
Defendant 1, however, had been guilty of gross and unreasonable delay in performing his part of the con tract and that had caused the respondent the loss of 110 the benefit of the lease and consequent damage.
On these allegations the respondent claimed specific performance of the contract and an amount of Rs. 2,340 as compensation or in the alternative damages amounting to Rs. 11,080.
To this suit Mst.
Durgabai, the daughter of defendant I had been impleaded as defendant 2 on the ground that she was setting up her own title in respect of the lands in suit and a declaration was claimed against her that she had no right, title or interest in the said lands.
Defendant 2 filed a written statement contesting the respondent 's claim for a declaration against her but she did not appear at the trial which proceeded exparte against her.
In the result defend ant 1 was the only contesting defendant in the proceedings.
Several pleas were raised by defendant I against the respondent 's claim.
He denied the receipt of the consideration alleged by her and he pleaded that the document (exhibit P 1) was a bogus, sham and collusive document which had been brought into existence for the purpose of shielding his property from.
his creditors and it was not intended to be acted upon.
It was also urged by him that the said document, if held to be genuine, was an agreement to lease under section 2(7) of the Indian , and since it was not registered it was inadmissible in evidence.
The learned trial judge framed appropriate issues on these pleadings and found against defendant I on all of them.
Accordingly a decree was passed ordering defendant 1 to execute a lease deed in respect of the fields mentioned in the plaint on a proper stamp paper in occupancy right in favour of the respondent and to put her in possession of them.
A decree for the payment of Rs. 2,316 by way of compensation was also passed against him.
The declaration claimed by respondent against defendant 2 was likewise granted.
This decree was challenged by defendant 1 by his appeal before the High Court of Judicature at Nagpur.
Pending the appeal defendant I died and his widow and his minor son came on the record as his 111 legal representatives and prosecuted the said appeal.
The High Court held that the document was supported by consideration, that it was not an agreement to lease under section 2(7) of the Indian and therefore it did not require registration and was admissible in evidence.
In the result the decree passed by the trial court was confirmed and defendant 1 's appeal was dismissed.
The present appellants then applied to the High Court for leave to appeal to this Court and the High Court granted leave because it held that the basic question involved in the decision of the appeal was the legal effect of exhibit P 1 and that the construction of a document of title is generally regarded as a substantial question of law.
It is with this certificate that the present appeal has come before this Court, and it raises two questions for our decision: Is the document (exhibit P 1) an agreement to lease under section 2(7): If not, does it require registration under section 17 of the said Act ? All other issues which arose between the parties in the courts below are concluded by concurrent findings and they have not been raised before us.
Before dealing with these points, we must first consider what the expression " an agreement to lease " means under section 2(7) of the Indian , hereinafter referred to as the Act.
Section 2(7) provides that a lease includes a counterpart, kabuliyat, an undertaking to cultivate and occupy and an agreement to lease.
In Hemanta Kumari Debi vs Midnapur Zamindari Co. Ltd. (1) the Privy Council has held that " an agreement to lease, which a lease is by the sta tute declared to include, must be a document which effects an actual demise and operates as a lease ".
In other words, an agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a present and immediate demise in his favour is not included under section 2, sub section
In Hemanta Kumari Debi 's case (1) a petition setting out the terms of an agreement in compromise of a suit stated as one of the (1) (1919) L. R. 46 1. A. 240.
112 terms that the plaintiff agreed that if she succeeded in another suit which she had brought to recover certain land, other than that to which the compromised suit related, she would grant to the defendants a lease of that land upon specified terms.
The petition was recited in full in the decree made in the compromised suit under section 375 of the Code of Civil Procedure, 1882.
A subsequent suit was brou ght for specific performance of the said agreement and it was resisted on the ground that the agreement in question was an agreement to lease under section 2(7) and since it was not registered it was inadmissible in evidence.
This plea was rejected by the Privy Council on the ground that the document did not effect an actual demise and was outside the provisions of section 2(7).
In coming to the conclusion that the agreement to lease under the said section must be a document which effects an actual demise the Privy Council has expressly 'approved the observations made by Jenkins, C. J., in the case of Panchanan Bose vs Chandra Charan Misra (1) in regard to the construction of section 17 of the Act.
The document with which the Privy Council was concerned was construed by it as " an agreement that, upon the happening of a contingent event at a date which was indeterminate and, having regard to the slow progress of Indian litigation, might be far distant, a lease would be granted "; and it was held that " until the happening of that event, it was impossible to determine whether there would be any lease or not ".
This decision makes it clear that the meaning of the expression " an agreement to lease " " which, in the context where it occurs and in the statute in which it is found, must relate to some document that creates a present and immediate interest in the land ".
Ever since this decision was pronounced by the Privy Council the expression " agreement to lease " has been consistently construed by all the Indian High Courts as an agreement which creates an immediate and a present demise in the property covered by it.
It would be relevant now to refer to the observations (1) Cal.
113 of Jenkins, C. J., in the case of Panchanan Bose (1).
In that case, a solehnama by which no immediate interest in immoveable property was created was held not to amount to a lease within the meaning of cl.
(d) of section 17 of the Act but merely an agreement to create a lease on a future day.
" Such a document ", it was observed, " fell within cl.
(h) of section 17 and as such was admissible in evidence without registration ".
Jenkins, C. J., held that " on a fair reading of the document, no immediate interest was created, there was no present demise, and the document was merely an agreement to create a lease on a future day, the terms of which were to be defined by documents to be thereafter executed ".
" This being so ", said the learned C. J., " I think the appellants I rave rightly contended before us that the document was admissible in evidence as it falls within cl.
(h) of section 17 of the Indian ".
This decision would show that an agreement which creates no immediate or present demise was not deemed to be a lease under section 2(7) and so it was hold to fall within section 17(h) of the Act and this view has been specifically affirmed by the Privy Council in Hemanta Kumari Debi 's case (2).
It is true that in Narayanan Chetty vs Muthiah Servai (3) a Full Beach of the Madras High Court had held that an agreement to execute a sub lease and to get it registered at a future date was a lease within section 3 of the Indian of 1877 (III of 1877) and was compulsorily registrable under el.
(d) of section 17.
Such an agreement to grant a lease which requires registration, it was held, affects immoveable property and cannot be received in evidence in a suit for specific performance of an agreement.
The question which was referred to the Full Bench apparently assumed that the agreement in question required registration and the point on which the decision of the Full Bench was sought for was whether such an agreement can be received in evidence in a suit for specific performance (1) where possession is given in pursuance of an agreement, and (2) where it is not; and the Full Bench (1) Cal. 808.
(2) [1919] L.R. 46 I.A. 240.
(3) Mad.
15 114 answered this question in the negative. " An agreement to lease ", it was observed in the judgment of the Full Bench, " is expressly included in the definition of the lease in the while it cannot be suggested that an agreement to sell falls within any definition of sale ".
It is clear that the question about the construction of the words " agreement to lease " was not specifically argued before the Full Bench, and the main point considered was the effect of the provisions of section 49 of the Act.
In that connection the argument had centred round the effect of the provisions of cl.
(h) of section 17 of the and section 54 of the Transfer of Property Act.
The Full Bench took the view that in enacting section 49 of the Act the Legislature meant to indicate that the instrument should not be received in evidence even where the transaction sought to be proved did not amount to a transfer of interest in immoveable property but only created an.
obligation to transfer the property.
A contract to sell immovable property in writing, though it may affect the property without passing an interest in it, is exempted from registration by clause (h) (now cl. 2 (v)) of section 17 but an agreement in writing to let, falling within cl.
(d) of section 17, is not.
That is why, according to the Full Bench, such an agreement cannot be received in evidence of the transaction which affects the immovable property comprised therein.
Thus this decision does not directly or materially assist us in construing the expression " agreement to lease ".
Besides, the said decision has not been followed by the Madras High Court in Swaminatha Mudaliar vs Ramaswami Mudaliar (1) on the ground that it can no longer be regarded as good law in view of the decision of the Privy Council in Hemanta Kumari Debi 's case(2), and, as we have already pointed out, all the other High Courts in India have consistently followed the said Privy Council decision.
The learned Attorney General has, however, contended before us that the correctness of the decision of the Privy Council in Hemanta Kumari Debi 's case (2) is open to doubt and he has suggested that we (1) Mad. 399.
(2) (1919) L.R. 46 I A. 240.
115 should re examine the point on the merits afresh.
We do not think there is any substance in this contention because, if we may say so with respect, the view taken by the Privy Council in the said case is perfectly right.
Section 17(1) of the Act deals with documents of which registration is compulsory.
It is obvious that the documents falling under cls.
(a), (b), (c) and (e) of sb section
(I ') are all documents which create an immediate and present demise in immovable properties mentioned therein.
The learned Attorney General 's argument is that cl.
(d) which deals with leases does not import any such limitation because it refers to leases of immoveable properties from year to year or any term exceeding one year or reserving a yearly rent; and the Act deliberately gives an inclusive definition of the term 'lease ' in section 2(7).
This argument, however, fails to take into account the relevant provisions of the Transfer ' of Property Act.
Section 4 of the said Act provides that section 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian .
Section 107 is material for our purpose.
Under this section a lease of immoveable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only under a registered instrument.
This section also lays down that where a lease of immoveable property is made by a registered instrument, such instrument, or, where there are more instruments than one, each instrument, shall be executed by both the lessor and the lessee.
It would be noticed that if section 107 has to be read as supplemental to the Act, the definition of the word I lease ' prescribed by section 105 would inevitably become relevant and material; and there is no doubt that under section 105 a lease of immoveable property is a transfer of right to enjoy such property made in the manner specified in the said section.
Therefore, it would not be right to assume that leases mentioned in cl.
(d) of section 17, sub section
(1), would cover cases of documents which do not involve a present and immediate transfer of leasehold rights.
It would thus be reasonable to hold that, like the instruments mentioned in cls.
(a), (b) and (c) of section 17(1), leases also are instruments 116 which transfer leasehold rights in the property immediately and in presenti.
We have already referred to the requirement of section 107 of the Transfer of Property Act that a lease must be executed both by the lessor and the lessee.
It may be pertinent to point out that an instrument signed by the lessor alone which may not be a lease under section 107 may operate as an agreement to lease under section 2(7) of the Act.
The legislative history of the provisions of section 17(2)(v) may perhaps be of some assistance in this connection.
Section 17(h) of Act III of 1877 which ,corresponds to the present section 17(2) (v) did not appear in the earlier Registration Acts of 1864,1866 and 1871.
Its introduction in Act III of 1877 became necessary as a result of the decision of the Privy Council in Fati Chand Sahu vs Lilambar Singh Das (1) in which it was held that an agreement to sell immoveable property for Rs. 22,500 coupled with an acknowledgment of the receipt of Rs. 7,500 and a promise to execute a sale deed on the payment of the balance was compulsorily registrable under section 17 of the Act (2).
Section 17(h) was therefore enacted in 1877 to make it clear that a document which does not itself create an interest in the immoveable property does not require registration even if it expressly contemplates and promises the creation of that interest by a subsequent document; in other words, contracts of sale and purchase of which specific performance would be granted under certain circumstances fall within this provision and would no longer be governed by the said decision of the Privy Council in the case of Fati Chand Sahu vs Lilambar Singh Das (1).
Thus the policy of the Legislature clearly is to exclude from the application of cls.
(b) and (c) of section 17(1) agreements of the said character.
On principle, there is no difference between such agreements of sale or purchase and agreements to lease.
Under both classes of documents no present or immediate demise is made though both of them may lead to a successful claim for a specific performance.
That is why the Privy Council observed in the (1) ; 14 M. L. A. 129.
(2) Act XX of 1866.
117 case of Hemanta Kumari Debi (1) that the context and the scheme of the statute justified the view taken by Jenkins, C. J., in the case of Panchanan Bose (2).
It may also be relevant to bear in mind that the other documents which are included within the word I lease ' by section 2(7) of the Act support the same conclusion.
A counterpart, as it is usually understood, is a writing by which a tenant agrees to.
pay a specified rent for the property let to him and signed by him alone.
It is thus in the nature of a counterpart of a lease and as such it is included within the meaning of the word I lease ' under section 2(7).
Same is the position of a kabuliyat and an undertaking to cultivate or occupy.
In other words, it is clear that all the four instruments which, under the inclusive definition of section 2(7), are treated as leases satisfy the test of immediate and present demise in respect of the immoveable property covered by them.
We must, therefore, hold that the expression " an agreement to lease " covers only such agreements as create a present demise.
Let us now proceed to deal with the question as to whether the document (exhibit P 1) constitutes " an agreement to lease "It purports to be a receipt executed in favour of the respondent by defendant I and bear a four anna revenue stamp.
" I have this day giver to you ", says the document, " the land described below which is owned by me.
Now you have become occupancy tenant of the same.
You may enjoy the same in any way you like from generation to generation.
My estate and heirs or myself shall have absolutely no right thereto.
You shall become the owner of the said land from date 1 6 1944.
1 will have absolutely no right thereto after the said date ".
The the document proceeds to mention the properties and describes them in detail, and it adds " all the above fields are situate at Mouza Mohammadpur, mouz No. 312, tahsil Arvi, district Wardha.
The estat described above has been given to you in lieu of you Rs. 8,700 due to you, subject to the condition that case your amount has not been paid to you on date 1 6 1944, you may fully enjoy the estate describe, (1) (1919) L.R. 46 I.A. 240.
(2) Cal.
118 above in any way you like from generation to generation ".
The question for our decision is: Does this document amount to an agreement to lease under section 2(7) of the Act ? In construing this document it is necessary to remember that it has been executed by laymen without legal assistance, and so it must be liberally construed without recourse to technical considerations.
The heading of the document, though relevant, would not determine its character.
It is true that an agreement would operate as a present demise although its terms may commence at a future date.
Similarly it may amount to a present demise even though parties may contemplate to execute a more formal document in future.
In considering the effect of the document we must enquire whether it contains unqualified and unconditional words of present demise and includes the essential terms of a lease.
Generally if rent is made payable under an agreement from the date of its execution or other specified date, it may be said to create a present demise.
Another relevant test is the intention to deliver possession.
If possession is given under an agreement and other terms of tenancy have been set out, then the agreement can be taken to be an agreement to lease.
As in the construction of other documents, so in the construction of an agreement to lease, regard must be had to all the relevant and material terms; and an attempt must be made to reconcile the relevant terms if possible and not to treat any of them as idle surplusage.
The learned Attorney General contends that this document is not a contingent grant of lease at all.
According to him it evidences a grant of lease subject to a condition and that shows that a present demise is itended by the parties.
He naturally relies upon the opening recitals of the document.
According to him, when the document says that defendant I has given to the respondent the land described below and that the respondent has become occupancy tenant of the same, it amounts to a clear term of present demise.
A similar recital is repeated in the latter part of the document where it is stated that the estate described 119 above has been given to the respondent in lieu of Rs. 8,700 due to her.
In our opinion, it would be unreasonable to construe these recitals by themselves, apart from, the other recitals in the document.
We cannot lose sight of the fact that the document expressly states that the respondent shall become the owner of the land from 1 6 1944 and that defendant I ' would have no title over it after that date.
This recital also is repeated in the latter part of the document; and it makes the intention of the parties clear that it is only if the amount of debt is not rapid by defendant I on the date specified that the agreement was to come into force.
In other words, reading the document as a whole it would be difficult to spell out a present or immediate demise of the occupancy rights in favour of the respondent.
In this connection the fact that the document is described as a receipt may to some extent be relevant.
It is clear that by executing this document the defendant wanted to comply with the respondent 's request for acknowledging the receipt of the amount coupled with the promise that the amount would be repaid on 1 6 1944.
The defendant also wanted to comply with the respondent 's demand that, if the amount was not repaid on the said date, he would convey the occupancy rights in his lands to her.
Besides, it is significant that the document does not refer to the payment of rent and does not contemplate the delivery of possession until 1 6 1944.
If the document had intended to convey immediately the occupancy rights to the respondent it would undoubtedly have referred to the delivery of possession and specified the rate at which, and the date from which. the rent had to be paid to her.
The stamp purchased for the execution of the document also incidentally shows that the document was intended to be a receipt and nothing more.
Under section 2 of the Central Provinces Land Revenue Act, 1917 (C. P. II of 1917) an agricultural year commences on the first day of June and it is from this date that the agreement would have taken effect if defendant I had not repaid the debt by then.
It is clear that the respondent was not intended to be treated as an 120 occupancy tenant between the date of the document and June 1, 1944.
During that period the agreement did not come into operation at all.
In other words, it is on the contingency of defendant 's failure to repay the amount on June 1, 1944, that the agreement was to take effect.
We have carefully considered the material terms of the document and we are satisfied that it was not intended to, and did not, effect an actual or present demise in favour of the respondent.
In our opinion, therefore, the High Court was right in holding that the document was not an agreement to lease under section 2(7) of the Act and so did not require registration.
We would now briefly refer to some of the decisions on which the learned Attorney General relied in support of his construction of the document.
In Purmananddas Jiwandas vs Dharsey Virji (1), the agreement between the parties had expressly provided that the lease in question was to commence from October 1, 1882, though the agreement was executed seven days later, that the rent was to commence from that day and the rent then due was to be paid by the next day.
It is in the light of these specific terms that the Bombay High Court held that the relevant words in the document operated as an actual demise.
None of these conditions is present in the document with which we are concerned.
Similarly in Pool vs Bentley (2), by the instrument in question, Poole had agreed to let unto Bentley, and Bentley had agreed to take, all that piece of land described for the term of 61 years at the yearly rent of pound 120 free and clear of all taxes, the said rent to be paid quarterly, the first quarter 's rent within 15 days after Michaelmas 1807, and that in consideration of the lease, Bentley had agreed within the space of four years to expend and lay out in 5 or more houses of a third rate or class of building 2000 and Poole had agreed to grant a lease or leases of the said land and premises as soon as the said 5 houses were covered in.
In dealing with the construction of this document Lord (1) Bom.
(2) ; ; 121 Ellenborough, C. J., observed that the rule to be collected from the relevant decisions cited before him was that the intention of the parties as described by the words of the instrument must govern the construction and that the intention of the parties to the document before him appeared to be that the tenant, who was to have spent so much capital upon the premises within the first four years of the term, should have a present legal interest in the term which was to be binding upon both parties; though, when certain progress was made in the building, a more formal lease or leases might be executed.
This decision only shows that if the intention is to effect a present demise the fact that a further formal document is contemplated by the parties would not detract from the said intention.
It would, however, be noticed that the document in that case contained a stipulation for the payment of the rent and the tenant was to be let into possession immediately.
This case also does not assist the appellant.
In Satyadhyantirtha Swami vs Raghunath Daji (1) the contract of lease was contained in two documents which showed that the lands were being cultivated by Appaji and Ravji who had signed the first document.
and that they were authorised to continue ' in occupation of the lands on terms mentioned in the first document.
The argument that a part of the agreement would not come into operation till some years later, it was held, did not operate to make the document other than a present demise.
It is difficult to appreciate how this decision can assist us in construing the present document.
In Balram vs Mahadeo (2) the Nagpur High Court was dealing with an instrument which purported to be a receipt and the terms of which seemed to contemplate the execution of a sale deed in respect of the properties covered by it.
Even so, the material clause was that "I it is agreed to give to you both the above fields in occupancy rights ".
It was held that, on a fair and reasonable construction, the document was (1) A.I.R. 1926 Bom.
(2) I.L.R. 16 122 intended to affect a transfer of the occupancy right in presenti and was as such an agreement to lease.
No doubt, as observed by Bose, J., " on a superficial view of the document it would not appear to be an agreement to lease.
But in construing a transaction one has to look beneath the verbiage and ascertain what are the real rights which are being transferred.
When that is done, we consider that this document is an agreement to lease despite the fact that it calls itself a receipt and speaks throughout of a sale ".
It is unnecessary to consider the merits of the conclusion rea ched by the Nagpur High Court in this case.
It would be enough to say that the said decision would not afford any assistance in construing the document before us.
Besides it is obvious that in construing documents, the usefulness of the precedents is usually of a limited character; after all courts have to consider the material and relevant terms of the document with which they are concerned; and it is on a fair and reasonable construction of the said terms that the nature and character of the transaction evidenced by it has to be determined.
In our opinion, the High Court was right in holding that the instrument (exhibit P 1) was not an agreement to lease under section 2(7) of the Act.
The result is the appeal fails and must be dismissed with costs.
Appeal dismissed.
|
A document purporting to be a receipt and bearing a four anna revenue stamp was executed by M in favour of the respondent and recited, inter alia, as follows: " I have this day given 108 to you the land described below which is owned by me.
Now you have become occupancy tenant of the same.
You may enjoy the same in any way you like from generation to generation.
My estate and heirs or myself shall have absolutely no right thereto.
You shall become the owner of the said land from date 1 6 44.
I will have absolutely no right thereto after the said date. .
The estate. has been given to you in lieu of your Rs. 8,700 due to you, subject to the condition that in case your amount has not been paid to you on date 1 6 44, You may fully enjoy the estate in any way you like from generation to generation.
" The respondent instituted a suit against M for the specific performance of a contract to lease alleging that under the document he had contracted to lease to her in perpetuity in occupancy right his lands in consideration of the debt of Rs. 8,7oo and as the amount was not paid within the due date, he was liable to perform and give effect to the said contract.
M contended, inter alia, that the document was an agreement to lease under section 2(7) of the Indian , and that as it was not registered it was inadmissible in evidence.
Held, that an agreement to lease under section 2(7) of the Regis tration Act, 1908, must be a document which effects an actual demise and operates as a lease.
An agreement between two parties which entitles one of them merely to claim the execution of a lease from the other without creating a pre sent and immediate demise in his favour is not an agreement to lease within the meaning of section 2(7) of the Act.
Held, further, that on a construction of the document in question, it was not intended to, and did not, effect an actual or present demise in favour of the respondent and consequently it was not an agreement to leaseunders.
2(7) Of the Act.
Accordingly, the document did not require registration and was admissible in evidence.
Hemanta Kumari Devi vs Midnapuy Zamindari Co., Ltd., (1919) L.R. 46 I.A. 240, relied on.
Panchanan Bose vs Chandya Charan Misra, Cal. 808, approved.
Narayanan Chetty vs Muthia Servai, Mad. 63, Purmananddas jiwandas vs Dharsey Kirji, Bom.
101, Balram vs Mahadeo, I.L.R. and Poole vs Bently, ; ; , distinguished.
|
Petition No. 1740 of 1984.
(For Directions) IN (Criminal Appeal No. 356 of 1983) 413 And (Criminal Misc.
Petition No. 2217 of 1984) (For Directions) IN (Criminal Appeal No. 356 of 1983) Ram Jethmalani, Ms. Rani Jethmalani, Naresh Jethmalani and J. Wad for the Petitioner.
A.K. Sen, M. N. Shroff and Dalveer Bhandari for the Respondent.
The Order of the Court was delivered by DESAI, J. Consequent upon the order made by a Constitution Bench of this Court on February 16, 1984 in the Judgment rendered in Criminal Appeal No. 356 of 1983 and Transferred Case No. 347 of 1983 alongwith Transferred Case No. 3/48 of 1983, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of the Special Judge, Greater Bombay (Shri R.B. Sule) were withdrawn and stood transferred to the High Court of Bombay.
In compliance with the direction given in the same judgment, the learned Chief Justice of the High Court of Bombay assigned both the cases to Mr. Justice S.N. Khatri, a sitting Judge of the High Court.
The learned Judge called upon the parties to appear before him on March 12, 1984.
When the cases were taken up for hearing, certain preliminary objections were raised on behalf of the accused which we were told have been dealt with by the learned Judge in his order dated March 16, 1984.
In respect of two issues further consideration was postponed.
These issues turn upon the question of procedure to be adopted by the learned Judge in the trial of the two cases and who should be in charge of the prosecution.
In our opinion, if the judgment of this Court was read with care and precision, these two questions would have hardly arisen.
However, two misc.
petitions were moved in this Court for clarification of the judgment so as to thwart avoidable delay in the trial of cases.
The operative portion of the judgment which has a bearing on the question raised reads as under: "Therefore, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, 414 Greater Bombay Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court".
In the penultimate paragraph of the judgment while allowing the appeal this Court directed as under: "This appeal accordingly succeeds and is allowed.
The order and decision of the learned Special Judge Shri R.B. Sule dated July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged.
" Reading two directions together, it clearly emerges that the learned Judge has to hold trial according to the procedure prescribed in Chapter XIX B i.e. the procedure prescribed in Secs.
244 to 247 of the Code of Criminal Procedure, 1973.
To be precise, the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate.
This position is clear and unambiguous in view of the fact that this Court while allowing the appeal was hearing amongst others Transferred Case No. 347 of 1983 being the Criminal Revision Application No. 354 of 1983 on the file of the High Court of the Judicature at Bombay against the order of the learned Special Judge Shri R.B. Sule discharging the accused.
If the criminal revision application was not with drawn to this Court, the High Court while hearing criminal revision application could have under Sec.
407 Code of Criminal Procedure, 1973 transferred the Special case from which criminal revision application arose to itself for trial and in such a situation the High Court under Sec.
407 (8), Code of Criminal Procedure, 1973 would have to follow the same procedure which the Court of Special Judge would have followed if the case would not have been so transferred.
It is not in dispute that the learned Special Judge while holding the trial was required to follow the procedure prescribed by the Code of Criminal Procedure, 1973 for trial of warrant cases by Magistrates and in the facts of this case the procedure would be in respect of cases instituted otherwise than on police report.
The trial was to proceed further from the stage when the accused was discharged.
This in our opinion is obvious and needs no further clarification.
8(1) of the Criminal Law (Amendment) Act, 1952 as interpreted by this Court in Criminal 415 Appeal No. 247 of 1983 decided on February 16, 1984 makes this position unambiguous and abundantly clear.
The clarification in respect of the first point read with the judgment rendered in Criminal Appeal No. 247 of 1983 in which Sec. 8 (3) of the Criminal Law (Amendment) Act, 1952 had come in for interpretation, it follows as a corollary that if the cognizance of an offence is taken under Sec.
8(1) of the Criminal Law (Amendment) Act, 1952 and the trial has to be held according to the procedure prescribed therein, under Sec. 8 (3) the learned advocate engaged by the complainant to conduct the prosecution will be deemed to be a public prosecutor.
In such a situation, there is no question of the State appointed public prosecutor to conduct the prosecution.
It is, therefore, clarified which to some extent may appear tautologous in view of the aforementioned judgment, that it would be for the complainant to decide who would be the learned advocate incharge of the prosecution and the advocate so appointed would be deemed to be a public prosecutor.
Dr. Singhvi who appeared for the respondent accused submitted that in the guise of a petition for clarification, it is a covert attempt to forestall or foreclose the decision on the aforementioned two points which are pending before the learned Judge before whom both the cases are pending.
There was no question of deciding the aforementioned two points afresh because the answers to them are implicit in the judgments referred to above.
Dr. Singhvi had nothing to say when invited by the Court about the clarification which the Court my offer in respect of the aforementioned two questions.
He left us in no doubt that he does not wish to make any submission on the question of clarification in respect of the aforementioned two questions.
We note that the Government of Maharashtra has entered appearance before us through Shri A.K. Sen and Shri M.N. Shroff but no submission were made by them.
Mr. Jethmalani, learned counsel for the complainant wanted this Court to consider prayers Nos.
(c) and (d) in the misc.
petition which we consider for the disposal of the misc.
petitions as irrelevant and we do not propose to deal with the same in these petitions.
In sum the clarification is that the learned Judge in the trial 416 of the two cases pending before him has to follow the procedure prescribed in Secs.
244 to 247 (both inclusive) included in Chapter XIX B of the Code of Criminal Procedure, 1973.
It is for the complainant to decide who should be his learned advocate incharge of the prosecution and there is no question of entrusting the trial of the two cases to a State appointed public prosecutor.
|
In compliance with directions given by the Constitution Bench of the Supreme Court, the Bombay High Court withdrew to itself Special Case No. 24 of 1982 and Special Case No. 5/83 pending in the Court of the Special Judge, Greater Bombay and assigned the said two cases to Mr. Justice S.N. Khatri a sitting Judge of the said court.
When the cases were taken up for hearing, two preliminary contentions were raised as to whether State should appoint a Public Prosecutor to conduct the trial and what should be the procedure to be followed and from what stage of the trial.
Hence the two applications for classification.
The Court; ^ HELD: 1.
The learned Judge has to hold the trial according to the procedure prescribed in chapter XIX B i.e., the procedure prescribed in section 244 to 247 (both inclusive) of the Code of Criminal Procedure.
To be precise, the learned Judge has to try the case according to the procedure prescribed.
for cases instituted otherwise than on police report by Magistrate.
The trial was to proceed from the stage when the accused was discharged.
[414D E] 2.
If the cognizance of an offence is taken under section 8( ') of the criminal law (Amendment) Act, 1952, and the trial has to be held according to the procedure prescribed therein, under section 8(3), the learned advocate engaged by the complainant to conduct the prosecution will be deemed to be a public prosecutor.
In such a situation, there is no question of the State appointed Public Prosecutor to conduct, the prosecution.
It is for the complainant to decide who should be his learned advocate in charge of the Prosecution.
[415B C]
|
Appeal No. 2462 of 1968.
Appeal by Special Leave from the Judgment and Order dated 17 5 1968 of the Allahabad High Court in First Appeal No. 13 of 1956.
M. N. Phadke, M. Qamaruddin, (Mrs.) M. Qamaruddin, M. Y. Omar, N. Aly Khan and V. M. Phadke for the appellant.
889 Lal Narain Sinha, D. P. Singh, section C. Agarwal, A. Gupta, section Mohdkazum and P. P. Singh; for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal by special leave.
Bibi Saddiqa Fatima, the appellant, was the plaintiff in Suit No. 86 of 1952 filed in the Court of the Civil Judge it Aligarh in which the defendant was Saiyed Mohammad Hasan.
He was the sole respondent in this appeal also.
He died during the pendency of the appeal and on his death his legal heirs and representatives were substituted as respondents.
For the sake of convenience hereinafter in this judgment by the respondent would be meant the original respondent.
One Smt.
Sughra Begum was a Shia Muslim Lady.
She was a resident of Asgharabad in the District of Aligarh.
She was possessed of vast Zamindari and other properties.
On October 6, 1928, she created a waqf of the entire properties dividing them in three qurras.
Raja Haji Saiyad Mohammad Mahmood Hasan was appointed by the waqifa as the Mutawalli of qurra No. 1.
His brother was appointed the Mutawalli of the second qurra.
The waqifa appointed herself the Mutawalli of the third qurra.
The dispute in this case relates to a property concerning qurra No. 1.
The Raja 's first wife was Smt.
Akbari Begum.
She died in the year 1931 leaving behind four sons and six daughters.
Raja Sahib, when he was about 50 years of age, took the plaintiff as his second wife in the year 1933.
The plaintiff, at the time of her marriage with the Raja, was a young lady of seventeen.
Raja died in September, 1939.
On January 22, 1935, a permanent lease was executed on behalf of one Saiyed Anwarul Rahman in respect of the disputed land in the name of the plaintiff.
The rent fixed was Rs. 80/ per year.
Between the years 1937 and 1939 a Kothi (Bungalow) was constructed on the said land, which was named as 'Mahmood Manzil '.
The suit property in this litigation is the said Kothi together with the land appertaining to it.
In short the plaintiff 's case is that the disputed property belongs to her.
The defendant was inducted as a tenant of the Kothi an and from 1st of March, 1947 on a rental of Rs. 60/ per month.
He paid rent upto May, 1950 but did not pay any rent thereafter.
In the year 1952, the plaintiff served a notice on the defendant to pay the arrears of rent and deliver vacant possession of the Kothi.
The defendant, in his reply, refuted the claim of the plaintiff and asserted that the Kothi did not belong to her nor was be a tenant of the same.
Hence the appellant instituted the suit for realisation of arrears of rent, damages and recovery of possession of the suit property.
The respondent, inter alia, pleaded that Raja Sahib, the.
first Mutawalli of qurra No. 1, had acquired the lease of the land and constructed the Kothi with the waqf fund as Mutawalli of the waqf.
It was a waqf property.
After the death of the Raja, the respondent became the Mutawalli of qurra No. 1 including the Kothi in question.
He occupied the Kothi as a Mutawalli and not as a tenant.
The Trial Court accepted the case of the defendant, rejected that of the plaintiff and 6 329SCI/78 890 dismissed her suit.
The ' Allahabad High Court has dismissed her appeal.
She has preferred this appeal in this Court on grant of special leave.
Shri M. N. Phadke advanced a very strenuous argument in sup port of this appeal.
Shri Lal Narayan Sinha combated his argument on behalf of the respondent.
It would be convenient to refer to some more facts and facets of the case from the pleadings of the parties and judgments of the Courts below before enunciating and enumerating the submissions made on their behalf.
The case pleaded in the plaint by the appellant was like this, Raja Sahib out of great love for the plaintiff "used to pay her a handsome amount every month as pin money and also a good deal of money occasionally.
" The plaintiff, with the object of constructing a Kothi, took on lease the disputed land measuring about 4 bighas and had been paying the annual rent of Rs. 80/ since the execution of the lease.
She pleads in para 4: "After the execution of the said lease, the plaintiff with her personal fund built a kothi and the out houses on the land mentioned in paragraph No. 3 above and named it as Mahmood Manzil after the name of her husband.
The construction of this Kothi bad been completed by May 1938, after which the plaintiff herself used lo stay in that Kothi whenever she came from Asgharabad to Aligarh." The plaintiff bad only one daughter born to her out of the wedlock with the Raja.
She is Smt.
Abrar Fatima.
She was married on the 25th May, 1950 to one Saiyed Mohammed Raza Ali Khan.
The defendant was quite obedient and faithful to the plaintiff until the marriage of her daughter.
But after the said marriage, he gradually turned hostile and thereupon the plaintiff mostly lived with her daughter.
According to the respondent 's case in his written statement the lease was taken by Raja Sahib and the sum of Rs. 786/spent on 'Nazrana ' etc.
for taking the lease was paid by him from the income of the waqf property and he constructed the Kothi from the wakf fund of Asgharabad estate.
He had neither any money of his own to invest in acquisition of the property nor was the property acquired by the plaintiff with her personal fund.
The appellant was examined on commission as a witness to support her case at the trial.
In her examination in chief, she stated that her husband used to give her Rs. 500/ per month as pin money besides, meeting her expenses regarding food and clothing.
Over and above this, he used to send money on the occasions of Id and Bakrid and also gave her money whenever she demanded.
She constructed the Kothi at Aligarh by investing about Rs. 20,000/ .
In other words she meant to convey in her examination in chief that she had acquired the land and constructed the Kothi out of the savings she had from the various amounts of money given by the Raja monthly or from time to time.
At a later stage of her deposition (probably in cross examination) she demolished her case and claimed to be in possession of Rs. 50,000/ at the time of the death of her husband, 891 which sum was her total savings out of the money paid to her monthly or from time to time by the Raja.
Thus in her evidence she could not explain as to out of which personal fund she claimed to have acquired the disputed property.
The Civil Judge framed for trial several issues out of which issues 1 and 5 were, in the following terms "1.
Whether the plaintiff is the owner of the property in suit as alleged and is she entitled to the possession claimed ? 5.
Whether the defendant possesses the disputed property as the Mutawalli ' as alleged by him The defendant 's case was that the 'Patta ' was obtained by the old Raja tinder the influence of her young wife benami in her name though it was acquired with the waqf fund.
The Raja, as Mutawalli, was the real lessee of the land.
He had constructed the Kothi out of the income of the waqf property.
A Mutawalli is not an owner of the waqf property, but whatever property of the waqf was there from before or acquired subsequently must, ordinarily, be in the name of the Mutawalli.
A property could be acquired in the name of any beneficiary, like the plaintiff, but she would be; merely a benamidar of the Mutawalli and the property will be a waqf property.
The Civil Judge has noted in his judgement that the plaintiff did not put forth a plea that the Kothi was built by late Raja out of his personal money and that she was owner, on the basis of the equitable deoctrine of advancement.
He has said further: "Thus the only point on which the parties were at issue was with respect to the source of the money out of which the patta was obtained and the building constructed and the plaintiff could succeed only if she proved that she had obtained the patta and built the kothi out of the money given to her by her late husband as pocket expenses, etc.
" The Civil Judge also remarked "Had she stated that she built the kothi out of the money which she had saved, that would have been consistent with her allegations in the plaint.
But she admitted that the whole of her savings were still with her and that out of them she had spent a little when she filed the present suit." The Trial Court, thereafter, considered the voluminous documentary evidence in the light of the oral evidence adduced and came to the conclusion that the plaintiff did not provide any money either for the lease of the land or for the construction of the Kothi thereon and that the money for both the purposes was provided out of the waqf estate.
Hence it was held, while deciding issues 1 and 5, that the plaintiff was not the owner of the Kothi in suit and the defendant was in possession of it in his capacity as the successor Mutawalli.
892 It would be advantageous to note at this stage the stand taken by the appellant in the High Court in her Memo of Appeal as also in argument.
On perusal of the grounds set out in the Memorandum of Appeal, especially ground Nos. 6, 8, 9, 11, 13 and 27, it would appear that the case made out therein was that the Raja had his personal money kept in the waqf estate treasury alongwith the waqf money.
The amount spent in constructing the Kothi was mostly taken out of the treasury from his personal fund with the intention of making his wife the owner of the property even though the doctrine of advancement did not apply in India, and that the observation of the learned Civil Judge that the plaintiff failed to prove that she did not provide any money out of her personal fund was wholly irrelevant for the decision of issue No. 1.
In argument, however, a stand like the one taken in the Trial Court was reiterated but consistently and concurrently rejected because the evidence in favour of the defendant 's case was so overwhelming to show that the lease had been taken and the Kothi had been constructed with the money coming out of the waqf fund that no other view was reasonably probable to be taken.
At one place in its judgment the High Court says "Counsel for the appellant has strongly relied on these documents in proof of the fact that the Kothi was constructed with her money and belonged to her." In the teeth of the overwhelming evidence the appellant was obliged to take 'an entirely new stand in her petition for special leave and in the argument before us.
In paragraph 23 of the petition it was stated That the case of the applicant had been that the lease was obtained with the applicant 's funds and that she had constructed the Kothi with her own money and it was also her alternative case put forward before the Hon 'ble High Court that even if it be assumed that the money utilised for constructing the Kothi did not pass directly from the plain tiff 's hand: and even if it be the finding of the Court that the money so utilised bad proceeded from Raja Mahmudul Hasan then on the admitted case of the defendant that this fund was waqf fund, the plaintiff 's claim ought to have been decreed inasmuch as on the ground that the usufruct or the profit of the waqf property though arising out of the waqf property did not belong to waqf as waqf property but it was by its very nature the property of the beneficiary and in the absence of any evidence to the contrary Raja Mahmoodul Hasan.
I held that those funds for the beneficiaries and the amount spent by him in the construction of the Kothi should be the money belonging to the applicant." Mr. Phadke made the following submissions (1) The Raja intended to acquire the land on lease and construct the Kothi for the plaintiff by investing from time to time money taken out of the waqf estate treasury, which had the effect of disbursement and payment of the money by the Mutawalli to his wife, 893 the beneficiary, for the purpose of the, acquisition of the Kohi.
The source of Money in that event is immaterial.
(2) The intention of the Raja to provide a separate Kothi to the plaintiff evidenced by numerous documents taken and standing in her name must be respected.
(3) The Raja went on giving money in driblets for construction of the Kothi by taking out the money from the waqf fund from time to time.
It was open to him to do so in accordance with clause 18 of the waqf deed Ext.
(4) The intention of the Raja is further fortified 'by the recital in his Will Ext.
(5) That there is a number of circumstances in support of the contentions aforesaid.
(6) The rules of pleading should not be too strictly applied in India and no party should be defeated on that account when both sides adduced evidence and proceeded to trial of the real issues in the case 'with their full knowledge and understanding.
(7) That there is no substantial variance in the case made out in the pleadings and the evidence and in argument either in the Courts below or in this Court.
(8) The burden of proof to displace the ostensible title of the appellant and to show that she was a benamidar was on the respondent.
In absence of any clinching evidence on either side, the ostensible title prevails.
(9) Although the doctrine of advancement does not apply in India, the Mutawalli being the owner of the waqf property had full and unlimited power of disposal over its usufruct and income.
Mr. Lal Narayan Sinha, while refuting the submissions made on behalf of the appellant, contended that it is a settled law that the question whether a particular transaction is, benami or not is purely one of fact and this Court in exercise of its jurisdiction under Article 136 of the Constitution does not, ordinarily and generally, review the comment findings of the Courts below in that regard.
Counsel submitted that the Courts below had correctly applied the Muslim law applicable to Shias in respect of the waqf property and its income.
They have rightly come to the conclusion that the suit property appertained to the waqf.
It was clear, according to the submis 894 sion of Mr. Sinha, that the parties went to trial to prove their respective cases as to whether the property had been acquired with the personal funds of the Plaintiff or those of the waqf.
The plaintiff 's case failed in view of the overwhelming evidence against her and she should not be permitted to make out an entirely new case in this Court.
He also contended, firstly, that the theory of onus probandi is not strictly applicable when both parties have adduced evidence;in such a situation it becomes the duty ' of the Court to arrive at the true facts on the basis of reasonable probabilities.
Secondly, in the instant case the strict tests to prove the benami character of the transaction cannot be applied, as, to do so will be in the teeth of the, well settled principles of Mohammedan law in relation to waqfs.
We proceed to examine the correctness of the rival contentions of the parties but not exactly in the Order it has been stated above.
It is undisputed in this case that a valid waqf was created by Smt.
Sughra Begum.
It is further indisputably clear from the waqf deed that except a portion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private nature for the benefit of the.
settler 's family and their descendants, which is called wakf alal aulad.
The ultimate object of the waqf was to spend income, if any, in the service of the Almighty God.
In Abdul Fata Mahomed vs Rasamaya (1) their Lordships of the Privy Council held that the gift to charity was illusory, and that the sole object of the settler was to create a family settlement in perpetuity.
The waqf of this kind was, therefore, invalid.
Ibis decision aforesaid caused considerable dissatisfaction in the Mohammedan community in India.
This led to the passing of the which was made retrospective in opera tion by a subsequent Act of 1930.
In view of the Validating Act of 1913 the validity of the wakf was beyond the pale of challenge.
Although in respect of the law applicable to waqfs there is some difference in regard to some matters between the Shia law and the various other schools of Mohamedan law applicable to Sunnis, in very many fields the law is identical.
After the Validating Act of 1913, on the basis of the law as it prevailed even before, creation of a waqf for the purpose of the maintenance of the members of the waqif 's family and their descendants is also a charitable purpose.
We now proceed to notice some salient features of the law as applicable to waqfs and especially of the Shias.
Tyabji 's Muslim Law, Fourth edition, Chapter X deals with waqf.
According to Shia law the waqf is irrevocable after possession is given to the beneficiaries or the Multawalli.
The settler divests himself of the ownership of the property and of everything in the nature of usfufruct from the moment the wakf is created.
In purely metaphorical sense the expression "ownership of God" is used but unlike Hindu Law, since conception of a personal God is not recognized, there is no (1) 22 Indian Appeals, 76. 895 ownership of God or no property belongs to God in the jural sense, although "the ownership of the property becomes reverted in God as he is originally the owner of all things" (vide page 523).
The Shia authorities considered the property as transferred to the beneficiaries or to the object of the, waqf.
Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude.
The corpus is tied 'down and is made inalienable.
Only the usufruct and the income from the corpus of the waqf property is available for carrying out the objects of the wakf.
The Sharaiu 'l Islam says "Waqf is a contract the fruit or effect of which is (a) to tie up the original and (b) to leave its usufruct free " "the waqf or subject of appropriation (corpus) is transferred, so to become the property of the mowkoof alehi, [or 'person on whom the settlement is made '] for he has a right to the advantage or benefits (usufruct) to be derived from it." (vide page 494, In the foot note at the same page occurs a passage which runs thus "But it should not be overlooked that question about ownership of property after dedication, refers merely to scientulla juris, supposed to remain undisposed of although entire usufruct, (all benefits, & C.) are assigned away.
Question in whom property rests, therefore, entirely academical.
" Mutawalli is like a Manager rather than a trustee (see page 498).
The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct.
We have already pointed out that under the Shia law the property does not remain with the waqif.
It is transferred to God or to the beneficiaries.
At page 554 of Tyabji 's famous book it is stated : "The support and maintenance of the waqf 's family, & c. would seem under the Act to be deemed a purpose recognized by the Muslim law as religious, pious or charitable : section 2.
This view was put forward by Ameer Ali, J., with great learning in his dissenting judgment in Bikani Mia 's case." ' Section 527 at page 593 runs thus "The mutawalli has no ownership, right or estate in the waqf property: in that respect he, is not a trustee in the technical sense : he holds the property as a manager for ful filling the purpose of the waqf.
" A contrary statement of law at page 202 of Mullas Mohamedan Law, seventeenth edition based on the decision of the Allahabad High Court in Mohammad Qamar Shah Khan vs Mohammad Salamat Ali Khan(1) (1) A.I.R. 1933 Allahabad 407.
896 to the effect that "the mutawalli is not a mere superintendent or manager but is practically speaking the owner" is not correct statement of law.
In a later Full Bench decision of the same court in Moattar Raza and others vs Joint Director of Consolidation, U.P. Camp at Bareilly and others(1) while over ruling the earlier decision, it has been said at pages 513 14 : "the legal status and position of a mutawalli under a waqf under the Musalman Law is that of a Manager or Superintendent.
" The general powers of the Mutawalli as mentioned in section 529 of Tyabji 's book are that he "may do all acts reasonable and proper for the protection of the wakf property, and for the administration of the waqf.
" It will be useful to point out the Law as regards, distribution of distributable income of the waqf properties amongst the beneficiaries as mentioned in the various subsections of section 545 at pages 606 608.
Unless a different intention appear, subsection (4) says: "The benefit of a waqf for a person 's "sons and his children, and the children of his children for ever so long as there are descendants, is taken per capita, males and females taking equally and the children of daughters being included.
" Attention must be called to an important statement of law in the well known authoritative book of Mohamedan Law by Ameer Ali Vol. 1, fourth edition, page 472.
It runs thus : "It is lawful for a mutawalli with the income of a waqf to erect shops, houses, & c., which may yield profit to the waqf, as all this is for the benefit of the waqf.
All properties purchased by the mutawalli out of the proceeds of the waqf become part of the waqf and are subject to the same legal incidents as the original waqf estate." Mr. Phadke cited the decision of this Court in Ahmed G. H. Ariff & Ors.
vs Commissioner of Wealth Tax, Calcutta(2) and contended that the right of the beneficiaries to get money out of the income of the waqf property for their maintenance and support was their property.
In our opinion the case does not help the appellant at an in regard to the point at issue.
A hanafi Muslim had created a wakf alalaulad and on a proper construction of the relevant clauses in the waqf deed it was held that the aliquot share of the income provided for the beneficiaries was not meant merely for their maintenance and support but even if it was so, it would be an asset within the meaning of section 2 (a) of the Wealth Tax Act, 1957.
The definition of the term 'asses, was very wide in the Wealth Tax Act.
The share of the income which a beneficiary was getting under the said waqf was assessable to income tax and following the particular method of evaluation it was held to be an asset for the purposes of the Wealth Tax.
The question at issue in the present case is entirely different as will be shown and discussed (1) A.I.R. 1970 Allahabad, 509.
(2) ; 897 hereinafter.
But in support of what we have said above in relation to the waqf property and the position of the Mutawalli we may quote a few lines from tills judgment also which am at page 24 : "As mentioned before, the moment a wakf is created, all rights of property pass out of the Wakif and vest in the Almighty.
Therefore, the Mutawalli has no right in the property belonging to the wakf.
He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager.
" It would be convenient to briefly discuss the questions of fact and the evidence in relation thereto before we advert to the discussion of some other questions of law argued before us on either side as those principles of law will be better"appreciated and applied in the.
background of the facts of this case.
As has been stated already the evidence is overwhelming on the question as to what was the source of money for the acquisition of the disputed property, either the land or the kothi.
It came from the waqf fund.
This position could not be seriously challenged before us.
What was argued will be alluded to a bit later.
We may just cursorily refer to some, of the pieces of the evidence on the question aforesaid.
A 35 is a written direction by the Raja to Mahmud Syedullah Tahvildar directing him to debit a sum of Rs. 741/ to his personal account for the acquisition of the.
plot in question.
The details of the expenses and the Nazrana money are given therein.
The payment was from the funds of the waqf estate.
But the Raja made a feable and futile attempt to get this debit entry made as a repayment of the loan money said to have been advanced by him to the waqf estate.
The High Court as also the Trial Court has rightly remarked that the entry like Ext.
A443 was got made by the Raja in the account books of the waqf estate as a fictitious countervailing entry in his attempt to show that some of the sums of money which he had withdrawn from the waqf estate were on account of the repayment of his alleged loans.
The High Court has rightly pointed out that they were all fictitious entries.
Mr. Phadke endeavored to show that the approximate gross income of the waqf estate was not Rs. 43,515/ as is shown by the High Court but it was in the neighbourhood of Rs. 58,000/ .
We shall accept it to be so.
Thus the net distributable income at the disposal of the Raja was about Rs. 30,000/ instead of Rs. 15,5101 mentioned in the judgment of the High Court.
There were 13 beneficiaries in qurra No. 1 of which the Raja was the Mutawalli.
In that capacity he was getting a monthly allowance of Rs. 70/ only from the estate account.
He bad no other personal property or source of income from which he could advance any loan to the waqf estate.
Nor could it be shown that the waqf estate at any point of time was in need of any loan from the Raja.
Therefore, the attempt of the Raja to put a show of acquiring the land in the name of his young wife out of his personal money was a very crude attempt to disguise the real source of that 898 money.
The concurrent findings of the Courts below that the expenses for the acquisition of the lease were incurred from the waqf estate funds could not be successfully assailed.
The High Court has referred next to the question of payment of rent of the land to the lessor.
The plaintiff produced six rent receipts.
13 and 14 were of the year 1952 when disputes between the parties had started.
As regards four other receipts the High Court was inclined to believe the explanation of the defendant that the plaintiff had surreptitiously obtained their possession.
On the other band, the defendant filed four rent receipts of the period when the Raja was alive.
Since the lease had been taken in the name of the plaintiff, naturally all the receipts were in her name.
The High Court has also referred to the satisfaction of a decree for rent obtained by the lessor in a suit instituted against the plaintiff as well as the defendant and has come to the conclusion that the entire decretal amount, the expenses of the auction sale and the costs were deposited in the Court out of the waqf fund.
Then comes the evidence regarding the construction of the Kothi.
All documents for obtaining permission from 'be Municipal Board and for electric connection etc.
obviously stood in the name of the plaintiff as the lease wag, standing in her name.
As in the High Court, so here, Mr. Phadke strongly relied upon those documents to show that the Kothi was constructed for and on behalf of the plaintiff.
As already stated the stand in the High Court was, that it was constructed with her money.
Here it was a completely different stand.
It was urged that the money came from the waqf fund but as and when the money was being spent by the Raja for the construction of the Kothi it amounted, in law, as payment of the money by the Raja to his wife and the construction of the Kothi should thus be treated as having been made with her money.
We shall scrutinize the correctness of this branch of the argument a bit later.
Numerous documents are mentioned in the judgments of the Trial Court as also of the High Court to show that every bit of expenditure in the construction of the Kothi came out of the ' waqf fund under the direction of the Raja.
We need not discuss these documents in any detail as the concurrent finding of the Courts below could not be assailed in face of these documents and that led the appellant to make a somersault here and to take an ingenuous stand.
These documents are Ext.
A 449 series; Ext.
A 450 series; Ext.
A 452; Ext.
A 453; Ext.
A 455; Ext.
A 458; Ext.
A 460; Ext.
A 463; Ext.
A 486; Ext.
A 491; Ext.
A 493 series; Ext.
A 495 and Ext.
A 518.
A 3 shows that Ramlal, a mason who had worked as a contractor in the construction of the Kothi instituted a suit for recovery of Rs. 2,917/10/ , the amount which was not paid during the life time of the Raja.
The suit was instituted in the year 1941.
It was decreed in 1942.
A 36, A 43 and A 44 are the receipts in proof of the fact that eventually the decree was satisfied by the defendant on payment of money to Ramlal.
A 45 is a similar receipt dated January 2, 1942 showing payment of Rs. 923/ by the defendant to Zafaruddin in satisfaction of his decretal dues on account of the construction of the Kothi.
The 899 plaintiff 's claim of the payment of Rs. 2,000/ to Ramlal was too slippery to be accepted by the Courts below and it need not detain us either.
The High Court has also relied upon two letters Exts.
A 28 and A 27 written by the Raja to the Supervisor of the building operations indicating that if the foundation of the Kothi was not laid within a certain time, loss would be caused to the Riyasat namely the waqf estate.
It may be emphasised here that the countervailing fictitious entries got made by the Raja were very few and far between and the entire amount spent in the acquisition of the Kothi which was in the neighbourhood of Rs. 21,000/ (both for the land and ,the building) could not be.
shown to be the personal money of the Raja by this spurious method.
A major portion of the total amount obviously, clearly, and admittedly too, had come from the waqf fund., And that compelled the appellant to take an entirely new stand in this Court.
We now proceed to deal with the new stand.
It is necessary in that connection to refer to some of the important recitals in Ext.
A 2 the waqf deed.
In the preamble of the document it is recited that the waqf is being created with some religious purposes and for the regular support and maintenance of the descendants of the waqif for all times to come so that they may get their support from generation to generation.
The ultimate object is for charitable purposes in the service of the God Fisaliilah.
After referring to the Act of 1913 it is stated : "Hence the entire property given below having become Waqf Alal aulad in perpetuity, has become, uninheritable and non transferable".
Each Mutawalli of his respective qurra was appointed " the principal manager with full and complete powers of entire waqf property." From clauses 7 and 13 of the waqf deed it was rightly Pointed out on behalf of the appellant, and not disputed by the respondent either, that Rs. 6,000/ amiually had to be spent by Mutawalli of qurra No. 1 for the religious purposes mentioned therein.
This was the first obligation of the Mutawalli before he could apply the rest of the usufruct in the support and maintenance of the family beneficiaries.
Then comes the most important clause in the waqf deed namely clause 18.
The said clause as translated and printed in the paper book runs as follows "Syed Mahmood Hasan the Mutawalli of the, first lot is vested with the power to fix stipends for his children and their descendants and for his wives during his life time whatsoever he pleases or to lay down conditions by means 0 a registered document or may get any writing kept reserved in the custody of the district judge, so that after him it be binding upon every Mutawalli, such in case he might not get any writing registered or kept in the custody of the district judge of the district, then under such circumstances the twenty percent (20%) of the income of the waqf property having been set apart for the expenditure of collection and realisation and right of the, Mutwalliship and the amount of Rs. 6,000/ (Rupees six thousand) for meeting 900 the expenditure of Azadari ' as detailed at para No. 7 above; the entire remaining will be distributed among the heirs of Mahmood Hasan according to their respective legal share provided under Mohammadan Law.
" The High Court referring to this clause has said that the power given to the Raja in clause 18 could be exercised by him during his life time in the fixation of the stipends but it was to come in operation after his death.
With the help of learned counsel for both sides,.
we looked into the original clause 18 and found that there is some inaccuracy in the translation as made and printed in the paper book.
But substantially there is not much difference.
Correctly appreciated, the meaning of the clause is that Saiyed Mohammad Hasan, the Raja, was given a special power and right to fix stipends for his children, wives and descendants either by a registered document and or by a document in writing kept in the custody of the District Judge so that after him it may be binding on every subsequent Mutawalli.
If he failed to do so, then after setting apart 20% of the gross income to meet the expenditure of collection and realisation and Rs. 6,000/the charitable expenditure mentioned in clause 7, the balance was to be distributed amongst the heirs of Saiyed Mohammad Hasan according to their respective legal shares provided under the Mahomedan law.
The bone of contention between the parties before us was that according to the appellant such a power of fixation of stipends for the wives and children was given to the Raja even to be operative during his life time, while according to the respondent it was only to be effective after his death.
We do not think it necessary to meticulously examine the terms of clause 18 and resolve this.
difference.
We shall assume in favour of the respondent that, in terms, the power was given which was meant to be operative after his death.
But then, does it stand to reason that he had no such power during his life time ? On a reasonable view of the matter, either by way of construction of clause 18, or as a necessary implication of it, we find no difficulty in assuming in favour of the appellant that the Raja was vested with the power to fix stipends for his children and their descendants and for his wives during his life time also.
A question, however, arises was this power completely unfettered, unguided and not controlled by the general principles of Mohamedan law ? Apart from the fact that in clause 27 of the waqf deed it is specifically mentioned that any condition or phrase laid down in any of the paras of the waqf deed was not meant to go against the, Mohamedan law and was not to be of any effect, if it did so, it is difficult to conclude that the Raja was conferred an absolute power or discretion to fix any stipend for any beneficiary and no stipend for some beneficiary.
Equality amongst all is a golden thread which runs throughout the Mohamedan law.
It is a chief trait of that law.
We have already pointed out from Tyabji 's book that each beneficiary was entitled to share the usufruct of the waqf property per capita.
The Power given to the Raja under clause 18 had to be reasonably exercised within a reasonable limit of variation according to the exigencies and special needs of a particular beneficiary.
He had no power to spend money quite disproportionately for the benefit of one 901 beneficiary may she be his young wife or young daughter or be he a young son.
He had no power to spend money for acquisition of any immovable property for a beneficiary.
No income from the waqf estate could be, spent for acquisition of an immovable property, and particularly a big property with which we are concerned in this case, to benefit only one beneficiary ignoring the others who were about a dozen.
The money had to be spent equitably for the support and maintenance of each and every beneficiary.
Of course, the Raja had the discretion to spend more money say on the education of a particular beneficiary it was necessary to do so or for the treatment of an ailing one.
There it would be preposterous to suggest that money bad to be equally spent.
It is, however, difficult to spell out from Clause 18, as was argued by Mr. Phadke, that the Raja should be deemed to have fixed as stipends for the young lady all the numerous sums of money spent from time to time in the various items of the acquisition of land or the construction of the Kothi.
Such a construction will, not only militate against the tenets of the Mahomedan law as quoted from Ameer Ali 's book, but would be obviously against the spirit of clause 24 of the waqf deed itself.
The said clause says "If any property will be purchased out of the funds of the State, it shall also be deemed to be property included in and belonging to the waqf.
It shall not become the private or personal property of any one.
" Taking a permanent lease of the land and constructing a Kothi thereupon to all intents and purposes, is a purchase of the property out of the funds of the estate.
It will be a startling proposition of Mahomedan law to cull out from clause 1 8 of the waqf deed that a property acquired obviously and clearly out of the funds of the waqf estate in the name of one of the beneficiaries should be treated as having been acquired for him or her in exercise of the power under clause 18.
It should be remembered that apart from the properties which were mentioned in the waqf deed and which had been tied and made inalienable if any further property was to be acquired, in the, eye of law, according to the concept of Mahomedan law, there was no legal entity available in whose name the property could be acquired except the Mutawalli or the beneficiary.
Unlike Hindu law, no property could be acquired in the name of the God.
Nor could it be acquired in the name of any religious institution like the waqf estate.
Necessarily the property had to be taken in the name of one of the living persons.
Ordinarily and generally the acquisition of property out of the waqf funds should have been made in the name of the Mutawalli.
But it did not cease to be, a waqf property merely because it was acquired in the name of one of the beneficiaries.
We are empbasizing this aspect of the matter at this stage to point out that the law relating to benami transactions, strictly speaking, cannot be applied in all its aspects to a transaction of the kind we are concerned with in this case.
We, however, hasten to add that even if applied, there will be no escape from the position that the real owner of the property was the Raja in his capacity as Mutawalli and the plaintiff was 902 a mere benamidar.
The property in reality, therefore, belong to the waqf estate as concurrently and rightly held by the two courts be low.
It is a very novel and ingenuous stand which was taken in this Court to say that all money spent from time to time in acquiring the land and constructing the Kothi was payment by the Raja as Mutawalli to his wife and therefore the property must be held to have been acquired by the lady herself out of her own personal fund.
At no stage of this litigation except in this Court such a case was made out in pleading or evidence or in argument.
The defendant was never asked to meet such a case.
Parties went to trial and evidence was adduced upon the footing that the plaintiff claimed that out of the money given to her by the Raja as pin money or on the occasions of festivals or otherwise she had saved a lot and out of those savings she had spent the money in acquiring the property.
The defendant asserted and proved that the case of the plaintiff was untrue and that all the money came from the waqf fund directly to meet the cost of the ac quisition of the property.
In such a situation it is difficult to accept the argument put forward by Mr. Phadke that pleadings 'should not be construed too strictly.
He relied upon three authorities of this Court in support of this argument namely, (1) Srinivas Ram Kumar vs Mahabir Prasad and others(1); (2) Nagubai Ammal & others vs B. Shama Rao & others(2), and (3) Kunju Kesavan vs M. M. Philip I.C.S. and others(3).
Let us see whether any of them helps the appellant in advancing her case any further.
In the case of Srinivas Ram Kumar (supra) the suit for specific performance of the contract failed.
The defendant had admitted the receipt of Rs. 30,000/ .
In that event, it was held that a decree could be passed in favour of the plaintiff for the recovery of Rs. 30,000/ and interest remaining due under the agreement of loan pleaded by the defendant, even though the plaintiff had not set up such a case and it was even inconsistent with the allegations in the plaint.
The Trial Court had passed a decree for the sum of Rs. 30,000/ .
The High Court upturned it.
In that connection, while delivering the judgment of the Court, it was observed by Mukherjea J., as he then was, at page 282 : "The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis.
The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meat.
But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant him self makes." (1) ; (2) ; (3) [1964]3 S.C.R. 634. 903 In the instant case, there is no question of giving any alternative relief to the plaintiff.
The relief asked for is one and the same.
The plaintiff claimed that she had acquired the property with her personal funds.
The defendant successfully combated this case.
He had not said anything on the basis of which any alternative relief could be given to the plaintiff.
The facts of the case of Nagubai Ammal (supra) would clearly show that the decision of this Court does not help the appellant at all.
The respondent did not specifically raise the question of his pending in his pleading nor was an issue framed or.
the point, but he raised the question at the very commencement of the trial in his deposition, proved relevant documents which were admitted into evidence without any objection from the appellants who filed their own documents, cross examined the respondent and invited the Court to hold that the suit for maintenance and a charge and the connected proceedings evidenced by these documents were collusive in order to avoid the operation of section 52 of the Transfer of Property Act.
The matter was decided with reference to section 52.
In such a situation it was held by this Court that the decisions of the Courts below were correct and in the facts and circumstances of thecase the omission of the respondent to specifically raise the questionof his pending in his pleading did not take the appellants by surprise.
It was a mere irregularity which resulted in no prejudice to the appellants.
In the instant case no body at any stage of the litigation before the appeal came up to this Court had taken any stand or said a word any where that money spent in acquisition of the property was the personal money of the plaintiff because as and when the sums were spent they went on becoming her personal money.
The evidence adduced and the stand taken in arguments were wholly different.
No party had said anything on the lines of the case made out in this Court.
Similar is the position in regard to the decision of this Court in the case of Kunju Kesavan.
At page 648 Hidayatullah J., as he then was,has stated, "The. parties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not.
The absence of an issue, therefore, did not lead to a mis trial sufficient to vitiate the decision.
" It was further added that the plea was hardly necessary in view of the plea made by the plaintiff in the replication.
Mr. Lal Narayan Sinha placed reliance upon the decision of this Court in Meenakshi Mills, Madurai vs The Commissioner of Income tax, Madras(1) in support of his submission that the question of benami is essentially a question of fact and this Court would not ordinarily and generally review the concurrent findings of the courts below in that regard.
Mr. Phadke submitted that his case was covered by some exceptionscarved out in the decision of the Federal Court in Gangadara Ayyarand others vs Subramania Sastrjgal and others.(2) (1) ; (2) A.T.R. 904 In our opinion it is not necessary to decide as to on which side of the dividing line this case falls in the light of the principles enunciated, in the case aforementioned.
Truly speaking, the concurrent findings of the Courts below on the, primary facts could not be seriously challenged.
They are obviously correct.
But a new stand was taken on ' the basis of clause 18 of the waqf deed which we have already discussed and rejected.
Mr. Phadke, heavily relied upon clause 19 of the Win dated 17 6 1938 Ext.
15 executed by the Raja fixing various amounts of stipends to be paid to the beneficiaries after his death.
He had executed two other wills prior to this Will.
In an earlier litigation, a question had arisen as to which Will would prevail the first one or the last one.
The amounts fixed for the plaintiff in the last Will was much higher than the amount fixed for her in the first Will.
in an earlier judgment dated 3 9 1949 Ext.
3 which was a judgment inter partes it was held that the amount fixed in the first Will would prevail.
Clause 18 of the waqf deed was also interpreted in a particular manner.
Mr. Lal Narayan Sinha endeavoured to use this judgment operating as res judicata in regard to some of the questions falling for decision in this litigation.
We do not propose to make use of that judgment in that form.
Nor do we propose to express any final opinion as to which amount of stipend was effective the first one or the last one.
shall assume in favour of the plaintiff that the. amount fixed by the last Will was effective and binding on the subsequent Mutawalli.
We are, however, concerned to read clause 19 of the last Will which runs as follows "My wife Siddique Fatima has got a kothi known as (main (?) Shagird Pasha in mauza Doodhpur (paper torn) by taking on perpetual lease.
I or the state has no concern with the same.
It has been 'constructed by her with her own funds.
All the articles lying there belong to her and have been purchased by her from her own money.
I have certainly given some articles to her which belonged to me personally.
In short all the articles, of whatever sort they may be are her property and nobody has got any right in respect thereof because the state or any one else has got no concern or right in respect thereof.
Hence she(?) has got the right to dispose the same off or to make a waqf of the same.
She may give it to any of my sons, who renders obedience and service to her or may give the same to any of my grandsons.
My other heirs shall have no right in respect thereof.
If any body brings, any claim, in order to harass her, the same shall be false.
" Let us see whether this clause advances the case of the appellant any further.
On a close scrutiny, it would be found that it directly demolishes her stand taken in this Court.
The recital by the Raja in clause 19 is that his wife bad taken the perpetual lease and constructed the kothi with her own funds.
All the articles lying there have been purchased by her from her own money.
He had certainly given some articles to her which belonged to him personally.
There is 905 no recital that the Raja had constructed the kothi ',for the plaintiff out of his own funds nor was there a recital that he had constructed the kothi by taking the money from the waqf estate and treating it as payment of stipends to her as and when the sums of money were paid.
By no stretch of law such a recital could create a title in favour of the plaintiff and finish the right of the, waqf to the property.
The recital was demonstrably false and could not bind the subsequent Mutawalli.
If the property became the acquired property of the waqf a Mutawalli,as the Raja was, by his mere declaration contained in clause 19 ofthe Will could not make it a property of the lady.
The recital of fact could be pressed into service only to lend additional support to the plaintiff 's case if she would have stuck to that case and proved it by evidence aliunde.
The appellant 's counsel relied upon the various circumstances to, advance her case in this Court the foremost of them is based upon clause 18 of the waqf deed, which we have already dealt with.
It was next contended that the real question was that the property was of waqf alal aulad of which the main object was the maintenance and support of the members of the settler 's family and to tie up the corpus of the property in perpetuity so as to, make it inalienable.
The Raja, however, according to the submission was left free duringhis life time to make disbursement of the income in any manner he chose and liked.
Acquiring a property with the waqf fund was the fulfillment of the object of the wakf.
It was a part of making a provision for the maintenance and support of the wife of the Mutawallii.
It was an integral part of the object of the waqf and was not in breach of the trust.
We are not impressed with this argument and have already dealt with it in the earlier portion of this judgment.
True it is that the property was not acquired by the sale of the corpus of any of the waqf property but even acquisition of an immovable property directly with the, waqf fund was an accretion to the waqf property.
The Raja had no power while administering the waqf to acquire a property for a particular beneficiary by way of maintenance and support of such a beneficiary.
As indicated earlier, a Mutawalli of a waqt although not a trustee in the true sense of the terms is still bound by the various obligations of a trustee.
He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his close relations by virtue of the position held by him.
The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name of his wife 'would amount to a breach of trust and the property so acquired would be treated as waqf property.
In the tenth edition of The Law of Trusts by Keaton and Sheridan it has been pointed out at page 329, Chapter XX "The general rule that a trustee must not take.
heed of one beneficiary to the detriment of others has already been discussed.
Put in another way, the rule implies that although a trustee, may be the servant of all the beneficiaries, he is not the servant of any one of them, but an arbitrator, who must hold the scales evenly.
" The position of the Mutawalli under the.
Mahomedan law is in no way different and all the beneficiaries are entitled to benefit equally, 7 329 SCI/78 906 of course, subject to the special power conferred on the Mutawalli as the one provided in clause 18 of the waqf deed and to the extent and in the manner interpreted by us above.
Exhibit A 22 an account of daily expenses incurred in the construction of the Kothi was attacked as a spurious document.
we do not attach much importance to Ext.
A 22 in face of the other pieces of evidence to indicate that the expenses were all met from the waqf fund.
It is not necessary to lay any stress on Ext.
A 22 Our attention was drawn to some statements made in the testimony of the defendant himself who was examined as D.W. 2 and D.W. 1the brother of the Raja.
It may be mentioned here that Hamid Hasan brother of the defendant was examined at P.W.3.
The plaintiff had examined herself in the house in which P.W. 3 was living and in his presence.
Without discussing in any detail a few lines here for a few lines there in their evidence, suffice it to say that their evidence could not and did not establish the plaintiffs case as made out in the Courts below nor did they lend any support to the new case made out here.
We, therefore, do not think it necessary to encumber this judgment by a detailed discussion of the evidence, because it has all been dealt with in full by the Trial Court and to a large extent by the High Court also.
We now proceed to consider, the law of benami prevalent in India and especially in regard to acquisition of a property by the husband in the name of the wife.
We would also in this connection be discussing whether the, doctrine of advancement is applicable in India or any principle analogous to that can be pressed into service on behalf of the appellant as was sought to be done by her learned counsel.
Alongwith the discussion of the points aforesaid, we shall be adverting to the appellant 's argument of burden of proof being on the person to prove that a transaction which is apparent on the face of the document of title is not a real one but a benami deal.
In conclusion, we shall show that neither the Trial Court nor the High Court has deviated from the application of the well settled principles in this regard, although at places the Trial Court seems to have apparently thrown the onus on the plaintiff.
But as a matter of fact neither of the two Courts below has committed any error in the application (,it the real principle.
In Gopeekrist Gosain and Gungaparsaud Gosain(1) it was pointed out as early as 1854, at page 72 : "It is very much the habit in India to make purchases in the names of others, and, from whatever cause or causes the practice may have arisen, it has existed for a series of years, and these transactions are known as "Benamee transactions." Lord Justice Knight Bruce proceeds to observe further at Pages 7475 that if the money for acquisition of property has been provided by a person other than the individual in whose name the purchase was effected and if such a person was a stranger or a distant relative of the person providing the money,, "he would have.
been prima (1)6 Moore 's Indian Appeals, 53. 907 facia a trustee".
It was observed further that even when the purchaser was the son of the real purchaser the English doctrine of advancement was not applicable in India.
This case was followed by the Board in Bilas Kunwar and Desraj Ranjit Singh and others(1) Sir George Farwell has said at page 205 : "The exception in our law by way of advancement in favour of wife or child does not apply in India : Gopeekrist vs Gangaparsaud; (1854) 6 Moo, Ind. Ap.
53 but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not.
The general rule in India in the absence of all other relevant circumstances is thus stated by Lord Campbell in Dhurm Das Pandey vs Mussumat Shama Soondari Dibiah (1843) 3 Moo.
Ind. Ap. 229; "The criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid." Lord Atkinson reiterated the same view in Kerwick and Kerwick (2) at page 278 in these terms : "In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England.
" It will be useful to quote a few lines from the judgment of the Judicial Committee of the Privy Council delivered by Sir John Edge in the case of Sura Lakshmiah Chetty and others vs Kothandarama Pillai ( 3 ) The lines occurring at page 289 run thus : "There can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife.
The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advance ment of the wife does not apply in India.
" In the well known treatise of the law of Trusts referred to above the learned authors say at page 173 : "The best example of a trust implied by law is where property is purchased by A in the name of B; that is to say, A supplies the purchase money, and B takes the conveyance.
Here, in the absence of any explanatory facts, such as an intention to give the property to B, equity presumes that A intended B to hold the property in trust for him.
" It may here be made clear that much could be said in favour of the appellant if the Raja would have acquired the property with his own money intending to acquire it for her.
But such an intention was of (1) 42 Indian Appeals, 202.
(2) 47 Indian Appeals, 275.
(3) 52 Indian Appeals, 286.
908 no avail to the appellant when the money for the acquisition of the property came from the coffers of the waqf estate over which the Raja had no unbridled or uncontrolled power of ownership.
He was himself in the position of a trustee owing a duty and obligations to the beneficiaries.
He had no free volition in the matter to spend and invest the trust fund in any manner he liked and for showing undue advantage to his wife.
At one stage of the argument Mr. Phadke felt persuaded to place reliance upon the decision of Yorke and Agarwal JJ in Mt. Sardar Jahan and others vs Mt. Afzal Begam(1).
At page 291, column 1 the observation seems to have been made per in curium to the effect: "As regards this question of pleading, it does not appear to us that there was anything to prevent the plaintiff from falling back on the plea of advancement in case she was unable to satisfy the court that the moneys expended were her own." Yorke J realised the inaccuracy of the above proposition and said so in Mt. Siddique Begam vs Abdul Jabber Khan and others(2) and then concluded at page 312 column 1 thus : "In point of fact it has been laid down by their Lordships in earlier cases that the burden of proof that a transfer is benami does lie in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided by him.
" In the case of Gangadara Ayyar and others (supra) Mahajan J., enunciated the law pithily, if we may say so with respect, in paragraph 14 at page 92 : "It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out.
The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony.
In the absence of evidence, the apparent title must prevail.
It is also well established that in a case ' where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.
" While dealing with the question of burden of proof, one must remember a very salutary principle reiterated by this Court in Kalwa Davadattam and two others vs The Union of India and other(3) at page 205.
Says the learned Judge: (1) A.I.R. 1941, oudh, 288.
(2) A.I.R. 1942, Allahabad, 308.
(3) ; 909 The question of onus probandi is certainly important in the early stages of a case.
It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail.
Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties." Shinghal J. recently followed this dictum in the case of Union of India vs Moksh Builders and Financiers Ltd. and ors.
etc.(1) at page 973.
Mr. Phadke heavily relied upon the decisions of this Court in (1) Kanakarathanammual vs V. section Loganatha Mudaliar and another(2) (2) Jaydayal Poddar (deceased) through his L. Rs and another vs Mst.
Bibi Hazra and ors(3) and (3) Krishnanand vs The State of Madhya Pradesh (4).
A question of some fine distinction arose in Kanakarathanammal 's case.
The question was whether the property purchased in the name of the wife by the money given to her by the husband was a property gifted to her under section 10(2) (b) of the Mysore Hindu Law women 's Rights Act, 1933 or was it a property in which fell under clause (d) of section 10(2).
If it was a property gifted by the husband to the wife, then the appellant 's contention was right and it became a property gifted under section 10(2) (b).
If, on the other hand, it was a property purchased with the money gifted by the husband to the wife, then it would not be so.
According tothe finding of the Courts below, the whole of the consideration waspaid by the appellant 's father and not by her mother.
The majorityview expressed by Gajendragadkar J., as he then was, at page 9 of the report is : "We have carefully considered the arguments thus presented to us by the respective parties and we are satisfied that it would be straining the language of section (2)(b) to hold that the property purchased in the name of the wife with the money gifted to her by her husband should be taken to amount to a property gifted under section 10(2) (b).
" It would thusbe seen that indisputably in that case the property was of the wife.
The only dispute was whether the property itself was acquired as agift from her husband or it was acquired with the money gifted to her by the husband.
In our opinion, therefore, this case is of no help, to the appellant in this appeal.
In Jaydayal Poddar 's case (supra) one of us (Sarkaria J.) while delivering the judgment on behalf of the Court was dealing with a case where the question was whether the property purchased by Abdul Karim in the name of his wife Mst.
Hakimunnissa was a benami purchase in the name of the latter.
The Trial Court held that she was benamidar.
The High (1) ; (2) ; (3) (4) [1977]1 S.C.R. 816.
910 Court reversed the decision and held that the plaintiffs had failed to show that Mst.
Hakimunnissa in whose name the sale deed stood, was only a benamidar and not the real purchaser.
While affirming the view of the High Court, it was aptly said at pages 91 92 : "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact.
The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through.
But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof.
The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his ' favour that the apparent estate of affairs is the real state of affairs.
Though the question, whether a particular sale is Benami ornot, is largely one of fact, and for determining this question,no absolute formulae or acid tests, uniformally applicable inall situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicate, the courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
The above indicate are not exhaustive and their efficacy varies according to the facts of each case.
Nevertheless No. 1, viz. the source whence the purchase, money came, is by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another." Apart from the fact that in the present appeal we are not concerned with a simple case of purchase of the property by the husband in the name of the wife with his own money, the purchase being with the waqf money, even applying the principles extracted above it would be noticed that the concurrent findings of the courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify our interference with the said finding. ] 'lie burden has been strictly discharged by the respondent so much 911 so that the finding as recorded could not be assailed.
It was merely attempted to be availed of to support a new case in this Court.
It should be remembered that 'by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another ' namely the source whence the purchase money came has been established beyond doubt.
The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including tile respondent.
The motive to, acquire the property in the name of the wife is clearly spoken of by D.W.I.brother of the Raja when he said at page 37 of the paper book "Raja Sahib was also present at the time of the execution of the lease.
At that time there was no debt against him.
On being asked by me he said that the plaintiff used to, trouble him and that in order to please her he was getting a fictitious lease executed in her favour.
" It was argued for the appellant that the Raja wanted to make a provision for his young wife to protect her interests from being trampled with by her sons and daughters.
This is not correct.
Although the defendant was not pulling on well with the Raja after he had married the plaintiff, according to her own case pleaded 'in the plaint she was pulling on well with the defendant upto the year 1950 and the relations between them got strained when her daughter was married to Saiyed Mohammed Raja Ali Khan.
The position of the parties, namely, the Raja and the plaintiff, was such that one could be inclined to believe that in all probability the Raja could provide funds for acquisition of the property not only in the name of his wife but for her and her alone provided the funds expended were his personal funds.
But no such inference is possible on the unmistakable position of thiscase that the funds came from the coffer of the waqf estate.
The custody of the title deed and other papers, except a few, were not with the plaintiff.
But on the facts of this case one, cannot attach much importance to this circumstance either way.
The conduct of the parties concerned in dealing with the property after acquisition also goes in favour the defendant and against the plaintiff.
It could not be shown that the plaintiff bad realised rent from the other tenants who had been there in the Kothi before 1947.
Nor was there anything to show that the defendant himself was inducted as a tenant in the Kothi by the plaintiff.
We, therefore, hold that even on the application of the salutary principles of law enunciated in Jaydyal Poddar 's case the appellant cannot succeed.
This case was merely followed in Krishnanand 's case by Bhagwati J.
We may again emphasize that in a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully.
Once it is found, as it has been consistently found, that the property was acquired with the money of with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired.
The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large 912 number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself.
In such a situation it will not be unreasonable to say rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf Is it possible to decree her appeal in face of her three varying stands in the three courts ? They are (1) in the Trial Court case of acquisition of property with her personal money; (2) in the High Court acquisition of property with the personal money of her husband and (3) in this Court the waqf fund invested from time to time became her personal money and enabled her to acquire the property.
For the reasons stated above, we dismiss the appeal, but with this direction that the parties will bear their own costs throughout.
Before we part with this case, we would like to put on record that a suggestion was thrown from the Court to the parties to arrive, at some kind of lawful settlement which may not go against the terms of the waqf deed or the Mahomedan law in relation to waqf.
Pursuant to the said suggestion, an offer was made on behalf of the substituted respondents to pay a sum of Rs. 30,000/ to the, appellant within a period of one year.
This was on the footing, as suggested by the Court, as if the lease hold in the land upon which the Kothi stands was the property of the appellant, but the Kothi was of the waqf.
Unfortunately this offer was not accepted by the appellant.
Still we hope and trust that the respondent will honour their unilateral offer and pay the sum of Rs. 30,000/ to the appellant within a period of one year from today, preferably in 4 three monthly equal instalments of Rs. 7,500/ each.
The amount so paid would be over and above the duty and the obligation which is there under the waqf on the present Mutawalli out of the substituted respondents.
We have tried to take a compassionate view for the appellant to the, extent to which we thought we could justifiably go.
We have relieved her of costs in all the three Courts.
We believe that the respondents will not belie our hopes merely because an executable decree in respect of the sum of Rs. 30,000/ in absence of them acceptance of the offer by the appellant cannot be passed.
S.R. Appeal dismissed.
|
One Smt.
Sughra Begum, a Shia Muslim lady was possessed of vast Zamindari and other properties.
On October 6, 1928, she created a waqf of the entire properties dividing them in three qurras, Raja Haji Saiyed Mohammad Mahmood Hasan was appointed by the waqifa as the Mutawalli of qurra No. 1.
After the death of his first wife Smt.
Akbari Begum.
the Raja took the plaintiff appellant as his second wife in the year 1933.
On January 22, 1935, a permanent lease was executed on behalf of one Saiyad Anwarul Rahman in respect of the disputed land in the name of the plaintiff.
The rent fixed was Rs. 80/per year.
Between the years 1937 and 1939 a bungalow was constructed on the said land which was named as "Mahmood Manzil".
The Raja died in September, 1939.
The plaintiff appellant filed a suit No. 86 of 1952 in the Court of the Civil Judge, Aligarh in which the original respondent was the sole defendant.
The plaintiffs case was that the disputed property belonged to her and that the defendant was inducted as a tenant of the 'kothi ' on and from 1 3 1947 on a rental of Rs. 60/ p.m., that he paid rent upto May 1950, but did not pay any rent thereafter, that she served a notice on him to pay the arrears of rent and deliver vacant possession of the Kothi.
The defendant respondent pleaded inter alia that Raja Sahib, the first Mutawali of qurra No. 1 had acquired the lease of the land and constructed the Kothi with the waqf fund as Mutawalli of the waqf and therefore it was a waqf property, that after the death of the Raja, he became the Mutawalli of qurra No. 1 including the Kothi in question and that he occupied the Kothi as a Mutawalli and not as a tenant.
The Trial Court accepted the case of the defendant, rejected that of the plaintiff and dismissed her suit.
Her appeal before the High Court was dismissed.
Dismissing the appeal by special leave, the Court HELD : 1.
According to Shia law, the waqf is irrevocable after possession is given to the beneficiaries or the Mutawalli.
The settler divests himself of the ownership of the property and of everything in the nature of usufruct from, the moment the waqf is created.
In pure metaphorical sense, the expression "ownership of God" is used but unlike Hindu law, since conception of a personal God is not recognised there is no ownership of God or no property belongs to God in the jural sense, although "the ownership of the property becomes reverted in God as he is originally the owner of all things".
The property is considered as transferred to the beneficiaries or the Mutawalli for the object of the waqf.
Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude.
The corpus is tied down and is made inalienable.
Only the usufract and the income from the corpus or the waqf property is available for carrying out the objects of the waqf.
Creation of waqf for the purpose of maintenance of the waqif 's family and their descendants is also a charitable purpose.
[894 G 14, 895 A B] 2.
A Mutawalli is like a manager rather than a trustee.
The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct.
The Mutawalli may do all acts reasonable and proper for the protection of the waqf property, and for the administration of the waqf.
[895 E, 896 D] 887 2(a) A Mutawalli of a waqf although not a trustee in the true sense of the term is still bound by the various obligations of a trustee.
He like a trustee or a person standing in a fiduciary capacity cannot advance his own interests or the interests of one class of relations by virtue of the position held by him.
The use of the funds of the waqf for acquisition of a property by a Mutawalli in the name of his wife would amount to a breach of trust and the property so acquired would be treated as waqf property.
[905 E G] Moattar Raza and Ors.
vs Joint Director of Consolidation U.P., Camp at Bareilly and Ors., A.1,R. 1970 All.
509 explained.
Mohammad Qamer Shah Khan vs Mahammed Salamat Ali Khan A.I.R. 1933, All. 407 over ruled.
The law as regards distribution of distributable income of the waqf property amongst the beneficiaries is that the benefit of a waqf for a person 's "sons and his children, and the children of his children for ever so long as there are descendants, is taken per capita, males and females taking equally and the children of daughters being included." [896 C F] Ahmed G. H. Ariff and Ors.
vs Commissioner of Wealth Tax, Calcutta, ; ; explained and held inapplicable.
In the eye of law, according to the concept of Mohammedan law, there was no legal entity available in whose name the property could be acquired except the Mutawalli or the beneficiary.
Unlike Hindu law, no property could be acquired in the name of God.
Nor could it be acquired in the name of any religious institution like the waqf estate.
Necessarily the property bad to be taken in the name of one of the living persons.
Ordinarily and generally the acquisition of property out of the waqf funds should have been in the name of the Mutawalli.
But it did not cease to be a waqf property merely because it was acquired in the name of one of the beneficiaries.
[901 E G] 5.
(a) The burden of proof that a particular sale is benami and the apparent purchaser is not the real owner always rests on the person asserting it to be so.
This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact.
[910 A B] (b) The law relating to benami transactions strictly speaking, cannot, be applied in all its aspects to a transaction of such a kind.
Even if applied there will be no escape from the position that the real owner of the property was the Raja in the instant case in his capacity as Mutawalli and the appellant was a mere benamidar.
The property in reality, therefore belong to the waqf estate as concurrently and rightly field by the two Courts below.
[901 G H, 902 A] Gopeekrist Gosain and Gangaparsaud Gosain, 6 Moore 's Indian Appeals, 53.
Bilas Kunwar and Desraj Ranjit Singh and Ors., 42 Indian Appeals, 202, Kerwick and Kerwick, 47 Indian Appeals, 275, Sura Lakshmiah Chetty and Ors.
vs Kothandarama Pillai 52 Indian Appeals, 286 Mt. Sardar Jahan and Ors.
vs Mt. Afzal Begam, A.I.R. 1941, Oudh, 288, Mt. Siddique Begam vs Abdul Jabbar Khan and Ors.
, A.I.R. 1942, Allahabad, 308, Kalwa Devadattam and two Ors.
vs The Union of India and Ors, ; Union of India vs Moksh Builders and Financiers Ltd. and Ors., ; Kana karathanammal vs V. section Loganatha Mudaliar and Anr.
; , Jaydayal Poddar (deceased) through 1. rs.
and Anr.
vs Mst.
Bibi Hazra and Ors., and Krishnanand vs The State of Madhya Pradesh, [1977] 1 S.C.C. 816 referred to.
In the instant case (a) It is not possible to decree the appeal in face of her three varying stands in the three Courts viz. (1) in the Trial Court case of acquisition of property with her personal money; (2) in the High Court acquisition of property with the personal money of her husband and (3) in this Court the waqf fund invested from time to time became her personal money and enabled her to acquire the property.
[912 B C] 888 (b) A valid waqf was created by Smt.
Sughra Begum.
Except a Portion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private nature for the benefit of the settler 's family and their descendants, which is called waqf alal aulad.
The ultimate object was to spend income, if any, in the service of the Almighty God.
[894 C] Abdul Fata Mohammad vs Rasamaya, 22 Indian Appeals 76 referred to.
(c) The evidence is overwhelming on the question as to what was the source of money for the acquisition of the disputed property, either the land and Kothi.
It came from the waqf fund.
[897 C] (d) Though the Raja was vested with the power to fix stipends for his children and their descendants and for his wives during his life time also, he was not conferred an absolute power or discretion to fix any stipend for any beneficiary and no stipend for some beneficiary.
Equality amongst all is a golden thread which runs throughout the Mohammadan law.
It is a chief trait of that law.
[900 G] (e) Clause 19 of the last will of the Raja cannot create a title in favour of the plaintiff and finish the right of the waqf to the property.
If the property became the acquired property of the waqf, a Mutawalli; as the Raja was, by his own declaration contained in clause 19 of the Will could not make it a property of the plaintiff appellant.
The recital of fact could be pressed into service only to lend additional support to the plaintiff 's case if she would have stuck to that case and proved it by evidence aliunde.
[905 A B] (f) The concurrent findings of the Courts below that the appellant was benamidar on behalf of the waqf does not suffer from any infirmity to justify this court 's interference with the said finding.
The burden has been discharged by the respondent so much so that the finding as recorded could not be assailed.
It was merely attempted to be availed of to support a new case in this Court.
It should be remembered that 'by far the most important test for determining whether the sale standing in the name of one person is in reality for the benefit of another ' namely the source whence the purchase money came has been established beyond doubt.
The nature and possession of the property after the acquisition was such that it did not lead to the conclusion that it was not a waqf property and was a property in exclusive possession of the appellant through her tenants including the respondent.
[910 H, 911 A B] (g) In a case of this nature, all the aspects of the benami law including the question of burden of proof cannot justifiably be applied fully.
Once it is found, as it has been consistently found, that the property was acquired with the money of the waqf, a presumption would arise that the property is a waqf property irrespective of the fact as to in whose name it was acquired.
The Mutawalli by transgressing the limits of his power and showing undue favour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself.
In such a situation it will not be unreasonable to say rather it would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf.
[911 G H, 912 A B]
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vil Appeals Nos.
1671 87 of 1987.
From the Judgment and order dated 22.4.1987 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 1546, 1547 etc.
in Order No. 267 to 283 of 1987 B I. M.K. Banerjee, Solicitor General, R.P. Srivastava and P. Parmeswarn for the Appellants.
Soli J. Sorabji, K.K. Patel, Rajiv Dutta and R.S. Sodhi for the Respondents .
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These are appeals from the decision of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as 'CEGAT ') under Section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ).
The respondent Calcutta Steel Industries filed revised classification lists wherein they had classified all rectangular products of thickness below 3.0 mm manufactured by them as bars covered by Tariff item 26AA(ia) of the Central Excise Tariff.
The Assistant Collector, Central Excise was of the tentative view that rectangular products of thickness less than 3.0 mm and of width less than 75 mm conform to the definition of Hoops and merit classification under item (ii) of Tariff Item 26AA attracting effective rate of duty of Rs.450 per MT less the PG NO 597 reduction provided for under Notification No. 55/80 dated 13th May, 1980.
The respondents were, therefore, called upon to show cause as to why the classification list should not be amended and duty charged accordingly.
The respondents submitted their written statement and requested for a personal hearing.
The matter came up for adjudication before the Assistant Collector, Central Excise.
He held inter alia that the type of Mills used for the manufacture was irrelevant.
He relied on the definition of "Hoops" evolved in consultation with the Ministry of Steel and the Indian Standard Institution.
The revised definition was as follows: "The finished product, generally of cross section with edges of controlled contour and of thickness 3.0 mm and over width 400 mm and below and supplied in straight lenths.
The product shall have rolled edges only (square or slightly rounded).
This group also includes flat bars with bulb that has swelling on one or two phases of the same edge under width of less than 400 mm.
The Assistant Collector, Central Excise on the basis of certain discussion, in his order, was of the view that rectangular products of thickness less than 3.0 mm and of width less than 75 mm were hoops and were correctly classified under sub item (ii) of Tariff item 26AA of the Central Excise Tariff and accordingly exigible to the appropriate duty.
The revised classification list was accordingly modified and approved.
The respondents preferred appeals to the Collector of Central Excise (Appeals).
The Collector considered the Indian Standard 1956 62 (2nd reprint May 1975) which defined "Hoops" as follows: "5.54 HOOP (bailing, hoop iron) a Hot Rolled Flat Product, rolled in rectangular section of thickness less than 3.0 mm and width less than 75.0 mm." He held that according to the specifications the product in question sequarely fell within the above definition particularly when the description of the Tariff Items covered "Hoops, all sorts".
The Appellate Collector also considered the definition of "Hoop and Strips" in the Brussels Tariff Nomenclature which described these as follows: "Hoop and Strip (heading No. 73.
12) rolled products with sheared or unsheared edges of rectangular section, of a thickness set exceeding 6 milli PG NO 598 metres, of width not exceeding 500 millimetres and of such dimension that the thickness does not exceed one tenth of the width, in straight strips, coils or flattened coils." He accordingly held that this definition showed that the edges of the product in question might be sheared or unsheared and the products might be in straight lengths or in coils.
He also held that the nature or type of mill cannot by itself be the determining factor of the issue in dispute which has to be determined taking into account all relevant considerations, viz., the phraseology and the scope of the Tariff Entry, the trade practice terminology, well recognised standard national and international technical literature.
In the result, the Appellate Collector of Central Excise inter alia for the reasons stated above, found no reason to interfere with the order of the Assistant Collector, Central Excise which was accordingly upheld.
The respondents preferred appeals to the Tribunal.
The Tribunal allowed the appeals and held that the flat product of thickness less than 3.0 mm and a width of less than 75 mm is classifiable as bars as claimed by the respondents herein and not as hoops as held by the Assistant Collector, Central Excise and upheld by the Appellate Collector of Central Excise.
in allowing the appeals, the Tribunal referred to U.S. Steel Publications (The shaping and treating of steel) wherein it is stated as follows: "goods have been rolled in a bar mill and have not been subjected to the process mentioned by the book for producing hoops and that they were not meant for bailing or packaging which a hoop is meant for. ' ' The Tribunal in its order discussed various aspects of the matter.
The Tribunal noted that the Collector had stated and what are the different categories.
In U.S. Steel Publication (The Making, Shaping and Treating of Steels) edited by Herald E. Mc.
Gannon 9th Edition whom the Tribunal has described as an authority on the Steel and we presume he is, there are some observations at page 808 under the heading "Narrow Flat rolled products" which are relevant.
There,"Hoops" have been described as follows: "Hoop There are four general classification of this type of products: 1.
Tight cooperage hoop for barrels to hold liquid.
PG NO 599 2.
Slack barrell hoop for barrels to hold dry products.
Tobacco barrel hogshead hoop, and 4.
Special hoop for special packages.
" It has further to be noted that "hoop" is made either by slitting coiled strip rolled in multiple width, into narrow coiled strip of the desired width, or from narrow coiled strip with a not rolled or mill edge and the type and width of hoop being produced influences the choice of the method used.
It further appears that the method of the products in question is not one of the methods listed in this authoritative work for hoops.
The so called hoops were not produced by slitting coiled strip nor rolled from narrow coiled strip, with hot rolled or mill edge.
The article, as has been noted, says that "hoop" is produced as ' curled hoop ' or 'a straight length '.
Curled hoop is made by a pinchroll and curved guide shoe arrangement that permits the hoop to take a circular form.
A straight length hoop is produced merely by removing the curved guide shoe.
The Tribunal was conscious that the goods in question were neither curled hoops nor straight length.
In those circumstances, it was necessary to understand clearly that the "straight length" used in this book is not the straight length understood by the department which seems to think that any short straight length is the straight length signified by the term for these products.
It is nothing of the kind as can be seen from the above passage quoted from the authority.
Straight length is not a short length, it is long.
The means of producing the goods is completely different from what is generally written.
The Tribunal was justified in holding that it is not possible to agree with the department that the manner of production of the goods can be taken into account.
It has also to be borne in mind that the very nature of the mill was a criteria to decide the nature of the product manufactured.
Further, however, taking into account the nature and type of the mill cannot itself be the determining factor in the issue in dispute.
The Tribunal also took into account that these are produced in a mill which cannot produce hoops or strips.
The Tribunal found the fact that they were produced in a mill that could produce hoops and strips.
Their lengths are not such as to place them in the same class as hoops.
Having, therefore, regard to this and the relevant tariff item, the Tribunal came to the conclusion that it will be more appropriate to assess them PG NO 600 under item 26AA(ia) than under Item 26AA(ii).
The Tribunal has considered all the relevant facts.
There was no misdirection on the facts.
All proper and relevant materials relevant for the determination of the question before the Tribunal have been applied to.
Reliance was placed on certain observations of this Court in South Bihar Sugar Mills Ltd. vs Union of India & Ors., ; There, this Court was dealing with Item 14A and the appellants ' manufacturing mixture of gases containing carbon dioxide by burning lime stone with coke in using only the carbon dioxide from the mixture for refining sugarcane juice and for producing soda ash by solvay ammonia soda process Whether the mixture of gases was kiln gas or compressed carbon dioxide covered by Item 14 H in Schedule I to the Act.
It was held by this Court that the gas generated by the appellant companies was kiln gas and not carbon as known to the trade, i.e., to those who deal in it or who use it.
The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14 H in the First Schedule.
It was held that it was incorrect to say that because the sugar manufacturer wants carbon dioxide for carbonisation purposes and sets up a kiln for it that he produces carbon dioxide and not kiln gas.
In fact what he produces is a mixture known both to trade and science as kiln gas one of the constituents of which is no doubt, carbon dioxide.
The kiln gas which is generated in these cases is admittedly never liquified nor solidified and is therefore neither liquified nor solidified carbon dioxide, assuming that it can be termed carbon dioxide.
It cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide.
If the Revenue wants to tax a particular goods known as such then the onus is on the Revenue.
That they have failed.
The Tribunal has analysed all the aspects.
In appeal, we have to see the propriety and the correctness of adjudication.
Having examined the aspects from all angles, we find that there was no misdirection in law nor any non consideration of facts.
There is no exclusion from consideration of legitimate and proper materials.
In the premises, we have also examined the ultimate conclusion of the Tribunal.
That conclusion appeals to us.
It follows irresistibly from the other premises as indicated hereinbefore.
In the premises, the appeals fail and are accordingly dismissed.
S.K.A. Appeals dismissed.
|
The respondent company filed revised classification lists classifying all rectangular products of thickness below 3.0 mm manufactured by them as bars covered by Tariff Item 26AA(ia) of the Central Excise Tariff.
The Asstt.
Collector, Central Excise took the view that rectangular products of thickness less than 3.0 mm and of width less than 75 mm fell under the definition of 'Hoops ' and merit classification under Tariff Item 26AA(ii) and exigible to the appropriate duty.
The respondent preferred an appeal before the Collector of Central Excise who held that the product fell within the definition of 'Hoops ' and upheld the order of the Asstt.
Collector.
The respondent appealed to the Tribunal which held that the flat product of thickness less than 3.0 mm and a width of less than 75 mm was classifiable as 'bars ' as claimed by the respondent company and not as 'Hoops ' and allowed the appeals.
The Department therefore filed the appeals under Section 35L(b) of the Central Excises & Salt Act, 1944 before this Court.
Dismissing the appeals, this Court, HELD: If the revenue wants to tax a particular goods known as such then the onus is on the Revenue.
[600F] 'Hoop ' is made either by slitting coiled strip rolled in multiple width, into narrow coiled strip of the desired width, or from narrow coiled strip with a hot rolled or mill edge and the type and width of hoop being produced influences the choice of the method used.
[599B] Curled hoop is made by a pinch roll and curved guide shoe arrangement that permits the hoop to take a circular form.
A straight length hoop is produced merely by removing the curved guide shoe.1599D] PG NO 597 PG NO 598 Straight length is not a short length, it is long.
[599E] The fact is that they were produced in a mill that could produce hoops and strips.
Their lengths are not such as to place them in the same class as hoops.
Having, therefore, regard to this and the relevant tariff item, the Tribunal came to the conclusion that it will be more appropriate to assess them under Item 26AA(ia) than Item 26AA(ii).
[599(G H; 600A] South Bihar Sugar Mills Ltd. vs Union of India & Ors., ; , referred to.
In an appeal under Section 35L(b) this Court has to see the propriety and the correctness of adjudication.
There was no misdirection in law nor any non consideration of facts.
There is no exclusion from consideration of legitimate proper materials.
[600F G]
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Appeal No. 1827 of 1970.
(From the Judgment and Decree dated 28 4 1970 of the Madhya Pradesh High Court (Gwalior Bench) in First Appeal No. 133 of 1968).
S.N. Andley and Uma Dutta, for the appellants Ram Panjwani and H.S. Harihar, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal on certificate by Prithvi Raj Taneja (now deceased and represented by his legal repre sentatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensa tion for the acquisition of land.
A plot of land measuring 27 bighas and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction o,f a police station and residential quarters for policemen.
A bigha, it is stated, is equivalent to 2,500 square yards.
The land sought to be acquired measured 68,658 square yards.
Notification under section 4 of the Land Acquisition Act for the acquisition of the land was issued on April 7, 1961.
The Land Acquisition Officer as per award dated June 13, 1961 awarded compensation for the land at the rate of Rs. 100 per bigha.
In addition to that, he awarded a sum of Rs. 1,175 for large trees and Rs. 1,380 for small trees standing on the land.
The appellant was also awarded Rs. 1,000 as compensation for a well which had been sunk in the. land, and Rs. 800 for a house standing on the land In all, the appellant was awarded a sum of Rs. 7,616.
including solatium at the rate.
of fifteen per cent by the Land Acqui sition Officer.
The appellant wanted compensation for the land at the rate of Rs. 10 per square yard.
He accordingly had the matter referred to the District Judge.
Learned Additional District Judge determined the market value of the land in question to be Rs. 900 per bigha.
Regarding the well, the Additional District Judge awarded compensation of Rs. 3,000 as against the amount of Rs. 1,000 which had been awarded by the Land Acquisition Officer.
In other respects, the award of the Land Acquisition Officer was upheld.
Computing solatium at the rate of 10 per cent, the.
total amount awarded by District Judge to the appellant was Rs. 32,285 besides interest at the rate of six per cent per annum.
The appellant not being satisfied with the award of the Additional District Judge took the matter in appeal to the High Court.
The High Court awarded compensation to the appellant at the rate of Re. 1.
per square yard for the land in question.
The High Court also awarded Rs. 2,500 for the loss of earnings to the appellant.
The rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to, fifteen per cent.
In all, the appel lant was held entitled to a compensation of Rs. 88,381 besides interest at the rate of six per cent per annum.
The appellant thereupon obtained a certificate of fit ness for appeal to this Court under article 133(1)(a) of the Constitution, as it stood at that time.
In appeal before us, Mr. Andley on behalf of the appel lant has argued that more than half of the land in dispute is within.
the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly.
It is further stated that the land in question abutts Ashok Nagar Isagarh Road and is situated near the tehsil building and the. railway station.
Learned counsel has also referred to the fact that small plots of land adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960.
In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute.
The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed.
We agree with the High Court that the price 635 paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of land.
We may in this context refer to a recent judgment in the case of Smt.
Padma Uppal etc.
vs State of Punjab & Ors.
C) wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold.
Section 23 of the Land Acquisition Act provides that in mining the amount of compensation to, be awarded for the land acquired under the Act, the Court shall take into.
account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act.
The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired.
In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded.
There is an element of guess work inherent in most cases involving determination of the market value of the acquired land.
But this in the very nature of things cannot be helped.
The essential thing is to keep in view the relevant factors prescribed by the Act.
If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be dis turbed (see Thakur Kanta Prasad Singh (dead) by L. rs.
vs State of Bihar(2).
After having been taken through the material on the record, we find no infirmity in the judgment of the High Court as might induce us to disturb its find ing.
The appeal consequently fails and is dismissed but in the circumstances without costs.
Appeal dismissed.
|
The appellant 's land was acquired and compensation was awarded to him by the Land Acquisition Officer.
Demanding a higher amount, the appellant had the matter referred to the District Judge who increased the award, but still discon tented, the appellant went in appeal.
The High Court also increased the compensation but could not satisfy the appel lant who thereupon obtained leave to appeal to the Supreme Court, contending that small plots of land adjoining his large area were sold at much higher rates.
Dismissing the appeal, the Court, HELD: 1.
The price ' paid for small plots of laud cannot provide a safe criterion for determining the amount of compensation for a vast area of land.
The large area of land cannot possibly fetch a price at the same rate at which small plots are sold.
[635 A B] Smt.
Padma Uppal etc.
vs State of Punjab & Ors.
; , applied.
The essential thing is to keen in view the relevant factors prescribed by the Act.
If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be disturbed.
[635 D E] Thakur Kanta Prasad Singh (dead) by L. Rs vs State of Bihar ; , applied.
|
Appeal Nos. 735 and 736 of 1966.
Appeals by special leave from the judgment and decree dated March 26, 1965 of the Allahabad High Court, Lucknow Bench in Second Execution Decree Appeals Nos. 3 and 4 of 1961.
J. P. Goyal and section P, Singh, for the appellant (in both the, appeals).
233 C. B. Agarwala and K. B. Gupta, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Bachawat, J.
The appellant filed suit nos.
87 of 1948 and 2/12 of 1948 in the court of the Assistant Collector, 1st Class, Pratapgarh, (a revenue court) against the respondent and 8 others persons under sections 60, 61 and 180 of the U.P. Tenancy Act (U.P. Act XVII of 1939) claiming a declaration that the defendants had no right to the suit lands and a decree for possession in case the defendants were found to be in possession thereof.
The suits were decreed in 1948.
The appellant took symbolical possession of the lands in execution of the decrees.
Appeals against the decrees filed by the respondent and other defendants were dismissed by the Additional Commissioner, Faizabad.
The defendants filed second appeals against the decrees.
During the pendency of the appeals rules 4 and 5 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules 1952 came into force.
The Board of Revenue held that in view of rules 4 and 5 the pending appeals as also the suits had abated.
In 1955 the respondent filed applications for restitution of the lands under section 144 of the Code of Civil Procedure in court of the Assistant Collector, 1st Class, Pratapgarh.
The appellant con.
tested the application.
One of the issues arising on the application was whether the appellant had acquired Bhumidari rights.
The Assistant Collector referred this issue to the Civil Court for decision.
He refused to recall the order of reference in spite of the respondent 's plea that he had no power to pass the order as no question of proprietary title had arisen.
On May 7, 1958 the civil court answered the issue in the negative.
On February 18, 1958 the Assistant Collector allowed the application for restitution and directed that the respondent be put in possession of the lands.
The appellant filed appeals against the orders dated February 18, 1958 As he was not certain about the proper forum of the appeals he took the precaution of filing the appeals in the revenue court as also in the civil court.
On October 23, 1959 the Additional Commissioner, Faizabad Division, held that the Revenue Court had no jurisdiction to entertain the appeals and that the appeals lay to the civil court under sections 286(4) and 265(3) of U.P. Tenancy Act.
Accordingly he returned the memoranda of appeals for presentation to the proper court.
The appellant filed revision petitions against the orders before the Board of Revenue, In the meantime the appeals filed before the civil court came up for hearing.
The respondent submitted to the jurisdiction of the civil court.
He did not raise the contention that the, civil court had no jurisdiction to entertain the, appeals.
On 234 November 12, 1960 the Additional Civil Judge,, Pratapgarh, allowed the appeals and dismissed the applications for restitution.
He held that (1) the appellant was in possession of the lands on the dates of the institution of the suits; (2) the board of revenue had no power to abate the suits or to set aside the decree passed therein, and (3) the application for restitution was not maintainable as the appellant had not obtained possession of the lands in execution of any decree which had been reversed or set aside.
In view of this decision, the appellant did not proceed with the pending revision petitions before the board of revenue and on November 18, 1960 the revision petitions were dismissed.
On February 1, 1961 the respondent filed second appeals in the High Court against the appellate orders of the civil court dated November 12, 1960.
In the original memorandum of appeal, he did not take the plea that the civil court had no jurisdiction to entertain the appeals.
For the first time on January 24, 1964, he took this plea by adding a new ground in his memorandum of appeal.
The High Court held that (1) the appellant was in possession of the lands before the passing of the decree; (2) the suits had not abated and the Board of Revenue had no jurisdiction to set aside the proceedings, in the suits ' and (3) the applications for restitution were not maintainable.
The High Court, however, held that (1) appeals against the orders for restitution lay to the revenue court, (2) the civil court had no jurisdiction to entertain the appeals and (3) the respondent was not estopped from raising the contention.
Accordingly on March 26, 1965 the High Court allowed the second appeals, set aside the order of the Additional Civil Judge and returned the memoranda of appeals for presentation to the proper court.
The appellant has filed the present appeals after obtaining special leave.
On behalf of the appellant it is argued that (1) the appeal from the order of the Assistant Collector dated February 18, 1959 lay to the civil court and not to the revenue court (2) in the circumstances of the case, and in view of section 289(2) of the U.P. Tenancy Act, the respondent was precluded from raising the objection that the appeals did not lie to the civil court.
It is common case that suits nos.
87 of 1948 and 2/12 of 1948 Were of the nature specified in Group B of the fourth schedule to the U.P. Tenency Act.
In view of section 265(2) read with section 271(2) appeals from orders in proceedings under section 14 4 of the Code of Civil Procedure arising out of, the two suits lay to the revenue court.
The appeals did not lie to the civil court under sections 265(3) and 286(4) read with section 271(2) as no question of jurisdiction was decided by the Assistant Collector nor was any question of proprietary title referred to or decided by the civil court.
But the more important question is whether having regard to the 235 scheme of the U.P. Tenancy Act and the circumstances of the case, the objection as to the lack of competence of the civil court to entertain the appeals could be raised in the High Court.
The U.P. Tenancy Act 1939 consolidates and amends the law relating to agricultural tenancies and other matters connected therewith in Agra and Oudh.
It repealed the Agra Tenancy Act, 1926 and the Oudh Rent Act 1886.
Chapter XIV of the Act deals with the procedure and jurisdiction of courts.
Section 242 provides that certain suits and applications are cognizable by the revenue courts only.
The chapter provides for appeals and revisions.
No appeal lies from any decree or order passed by any court under the Act except as provided in the Act (section 263).
In some cases an appeal lies to a revenue court; in other cases the appeal lies to the civil court.
The High Court has no revisional power under section 276 in a case in which no appeal lies to the civil court.
It is often a question of extreme nicety whether a suit, application or appeal is cognizable by the revenue court or by the civil court.
Sections 289, 290 and 291 deal with objections regarding the proper forum.
Section 290 provides that where in a suit instituted in a civil or revenue court, an appeal lies to the district judge or to the High Court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court unless such objection was taken in the court of the first instance; and the appellate court shall dispose of the appeal as if the suit has been instituted in the right court.
The section closely resembles section 21 of the Code of Civil Procedure and is a recognition of the princi ple that an objection as to the proper forum for the trial of a suit may be waived.
Section 291 treats the objection as technical and provides that even where the objection was taken in the court of the first instance, the appellate court may dispose of the appeal as if the suit had been instituted in the right court.
It may declare any court to be competent to try the suit and may remand the suit for fresh trial, and the competence of the trial cannot be ques tioned later.
With a view to avoid conflicts of jurisdiction section 289 provides for reference to the High Court.
Section 289 is as follows : "289(1) Where either a civil or revenue court is in doubt whether it is competent to entertain any suit, application or appeal, or whether it should direct the plaintiff, applicant or appellant to file the same in a court of the other description, the court may submit the record with a statement of the reasons for its doubt to the High Court; (2) Where any suit, application or appeal, having been rejected either by a civil court or by a revenue 236 court on the ground of want of jurisdiction, is subsequently filed in a court of the other description, the latter court, if it disagrees with the finding of the former, shall submit the record, with a statement of the reasons for its disagreement to the High Court; (3) In cases falling under subsection (1) or subsection (2) if the court is a revenue court subordinate to the collector, no reference shall be made under the foregoing provisions of this section except with the previous sanction of the collector; (4) On any such reference being made , the High Court may order the court either to proceed with the case, or to return the plaint, ' application or appeal for presentation of such other court as it may declare to be competent to try the same; (5) The order of the High Court shall be final and binding on all courts, subordinate to it or the Board.
" Section 289 vests in the High Court a special jurisdiction.
The decision of the High Court given ' on a reference to it under section 289 is binding on all courts.
A reference can be made under section 289(1)if any court doubts its own competence to entertain any proceeding.
The reference under section 289(1) is optional.
Without making any reference the court may refuse to entertain the proceeding on the ground of want of jurisdiction.
But the court of the other description in which the proceeding is subsequently instituted is not bound by this finding, see Nathan vs Harbans Singh(1).
Before the enactment of section 289(2) if it disagreed with the finding, it could reject the proceeding on the ground that the matter was cognizable by the other court, As neither court was bound by the finding of the other, the litigant could not get relief in any forum.
Section 289(2) has been specially enacted to avoid such a deadlock.
In such a situation, section 289(2) compels the court to refer the matter to the High Court and to obtain a Provisions corresponding to sections 290, 291 and 289(1) were contained in sections 124 A, 124B, 124C and 124D of the Oudh Rent Act 1886 and sections 268, 269 and 267(1) of the Agra Tenancy Act, 1926.
It seems that Oudh Rent Act, 1886 did not contain any provision corresponding to section 289(2).
The absence of such a provision seriously hampered the administration of justice.
In numerous cases under the Oudh Rent Act, after a suit, application or appeal was rejected by a civil court or revenue court on the ground of want of jurisdiction, the court of the other descrip (1) A.I.R. 1930 All. 264, decision which will bind all the courts.
237 tion where the proceeding was subsequently filed came to the opposite conclusion and held that the matter was within the cognizance of the former court.
The decision of the court of one description including the decision of the High Court exercising appellate or revisional power over that Court was not binding upon the court of the other description.
Such a situation led to great injustice.
The litigant was bandied about from court to court and he could not get any relief anywhere.
The Oudh Chief Court mitigated the evil by applying the doctrine that a party litigant could not approbate and reprobate in respect of tile same matter.
A party litigant may not be allowed to take inconsistent positions in court to the detriment of his opponent at successive stages of the same proceeding or in a subsequent litigation growing out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Ed.
783, 789, Mohammad Mehdi Khan V Mussammat Sharatunnissa(1).
On this principle it was held in Mahadeo Singh vs Pudai Singh(2) that where a revenue court upheld the plea that it had no jurisdiction to entertain a suit, the party putting forward the plea would be precluded from contending that the civil court could not entertain the suit.
Likewise in Saira Bibi vs Chandrapal Singh (8) it was held that when an appeal was originally instituted properly in the revenue court but on objection being raised by a party was dismissed on the ground that the appeal did not lie to that court, it was not open to the party to raise the objection that the appeal could not be entertained by the civil court.
This form of estoppel arises when the litigant takes in consistent pleas as to jurisdiction in different courts.
It cannot be pressed into service, where, as in the present case, the court in which the proceeding was originally filed suo motu raised the objection as to jurisdiction.
In the present case it does not appear that the respondent raised before the revenue court the objection that it was not competent to entertain the appeals.
The doctrine of approbate and reprobate cannot be invoked to, preclude the respondent, from raising the objection that the appeals did not lie to the civil court.
But the effect of upholding his objection is that the appellant is deprived of his right of appeal altogether.
His appeals cannot be entertained either by the civil court or by the revenue court.
Section 289(2) is intended to prevent such grave miscarriage of justice.
Section 289(2) reenacts the provision of section 267(2) of the Agra Tenancy Act 1926.
The object of section 289(2) is to avoid a deadlock between the civil and the revenue courts on the question of jurisdiction, and its provisions should receive a liberal construction.
Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue (1) 3 Oudh Cases, 32, Luck, 159,166.
(3) A.I.R. 1931 Oudh 123.
238 court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former.
In such a case, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts.
A court subordinate to the collector cannot make the reference without the previous sanction of the collector under section 289(3).
It is implicit in section 289(3) that if the collector refuses to give the sanction, the case will proceed as if there is no dis agreement with the finding of the former court.
In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction.
If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding.
No other court can disagree with the finding and make the reference.
In our opinion, if no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court.
In the present case the respondent did not raise any objection before the Additional Civil Judge that the civil court was not competent to entertain the appeals.
The Additional Civil Judge did not make any reference to the High Court under section 289(2).
He decided the appeal on the merits and did not disagree with the finding of the revenue court on the question of jurisdiction.
Having regard to this decision the appellant did not proceed with the revision petitions filed by him against the orders of the revenue court on the question of jurisdiction In these circumstances, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals.
In view of the fact that no reference.
under section 289(2) was made, the finding of the revenue court that the civil court was competent, to entertain the appeals could not be challenged in the High Court.
The case must be decided on the footing that the Additional Civil Judge, Pratapgarh, was competent to enter tain the appeals.
On the merits the respondent has no case.
The Additional Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits.
The High Court agreed with this finding.
We see no reason for setting aside this concurrent finding of fact.
The appellant did not obtain possession of the lands by executing the decrees passed in the two suits.
Even assuming that the suits had abated and the decrees 239 ed therein had been set aside or reversed, no case for restitution.
of the lands under section 144 of the Code of Civil Procedure is made out.
The Additional Civil Judge rightly dismissed the applications under, section 144.
In the result, the appeals are allowed with costs, the orders of the High Court are set aside and the orders passed by the: Additional Civil Judge, Pratapgarh, are restored.
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The appellant instituted two suits in the Court of Assistant Collector (a Revenue, Court) against the respondent under sections 60, 61 and 180 of the U.P. Tenancy Act, 1939.
The suits were decreed, and the appellant took symbolical possession of the lands.
The Assistant Commissioner.
affirmed the decrees, and during the pendency of the respondent 's second appeals in the High Court, the Uttar Pradesh Zamindari Abolition & Land Reforms Rules, 1952 came into force.
The Board of Revenue held that in view of the Rules.
the pending appeals as also the suits had a ate.
The respondent filed applications for 'restitution of the lands under section 114 C.P.C. in the Court of Assistant Collector.
The Assistant Collector referred the issue whether the appellant had acquired Bhumidari rights to the civil court.
He refused to recall the 'reference in spite of the respondent 's Plea that he had no power to pass the order as no question of pro prietary title bad arisen.
The civil court answered the issue in the negative, and the Asstt.
Collector allowed the applications for restitution.
As the appellant was not certain about the proper forum of appeals against these orders of the Assistant Collector, he filed anneals in the revenue court as also in the civil court.
The Assistant Commissioner held that the revenue court had no Jurisdiction to entertain appeals and the appeals lay to the civil court under sections 286(4) and 265(3) off the U.P. Tenancy Act.
The appellant filed revision petitions against the orders before the Board of Revenue.
In the meantime the appeals filed before the civil court came up for hearing:.
The respondent submitted to the jurisdiction of the civil court, and did not contend that the civil court had no Jurisdiction to entertain the appeals.
The Civil Judge allowed the anneals and dismissed the application for restitution.
Because of this decision.
the appellant did not proceed with the pending revision petitions 'before the Board of Revenue and there the petitions were dismissed.
The respondent filed second appeals in the High Court against the appellate orders of the civil court, without taking the plea that the civil court 'had no Jurisdiction to entertain the anneals.
but later on he took the plea by adding a new ground.
The High Court held that the appeals lay to the revenue court and the respondent was not estopped from raising the contention.
In appeals to this Court the appellant contended that the anneals lay to the civil court and not for the revenue court and in the circumstances of this case, and in view of section 289(2) of the U.P. Tenancy Act.
the respondent was precluded from raising the objection that the appeals did not lie to the civil court.
Allowing the appeals this Court.
HELD : In this case the doctrine of approbate and reprobate could not be pressed into service to preclude the respondent from raising the objection that the appeals did not lie to the civil court as the court in which the proceeding were originally filed suo motu raised the objection.
232 But the effect of upholding his objection would be that the, appellant would be deprived of his right of appeal altogether, and section 289(2) of the U.P, Tenancy Act is intended to prevent such grave miscarriage of justice.
[237 F] Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or revenue court on account of want of jurisdiction is subsequently filed in the court of the other description and the latter court disagrees with the finding of the former.
In such a case,, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High Court which is binding on all courts.
A court subordinate to the Collector cannot make the reference without the previous sanction of the Collector under section 289(3).
It is implicit in section 289(3) that if the Collector refuses to give the sanction, the case will proceed as if there is no disagreement with the finding of the former court.
[237 H] In a case falling within section 289(2), only the court in which the proceeding is subsequently instituted can disagree with the finding of the former court on the question of jurisdiction.
If it so disagrees, it must refer the matter to the High Court; and only the High Court on such a reference can override the finding.
No other court can disagree with the finding and make the reference.
If no such reference is made, the finding of the former court on the question of jurisdiction becomes final and conclusive; and the objection that it is erroneous cannot be entertained by the appellate or revisional court or any other court.
[238 D] Having regard to the circumstances of this case, it was not open to the respondent to raise the objection in the High Court that the civil court was not competent to hear the appeals.
In view of the fact that no reference under section 289(2) was made, the finding of the revenue court that the civil court was competent to entertain the appeals could not be challenged in the High Court.
The case must be decided on the footing that the Civil Judge was competent to entertain the appeals.
[238 F] On the merits the respondent had no case.
The Civil Judge found that the appellant was in possession of the lands on the dates of the institution of the suits.
The High Court agreed with this finding.
No ground has been made for setting aside this concurrent finding of fact.
The appel lant did not obtain possession of the lands by executing the decrees passed in the two suits.
Even assuming that the suits had abated and the decrees passed therein had been set aside or reversed, no case for restitution of the lands under section 144 of the Code of Civil Procedure was made out.
The applications under section 144 C.P.C., were rightly rejected.
Nathan vs Harbans Singh, A.I.R. 1930 All. 264, Mohammad Mehdi Khan vs Mussammat Sharatunnissa, 3 Oudh Cases 32, 35 37, Mahadeo Singh vs Pudal Singh, A.I.R. 1931 Oudh 123 and Saira Bibi vs Chandrapal Singh, I.L.R. 4 Luck.
150, 166, referred to.
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Civil Appeal No. 4567 of 1989.
From the Judgment and Order dated 22.12.1988 of the Punjab & Haryana High Court in C.R. No. 1327 of 1987.
Gopal Subramanium, N.D. Garg and Rajiv K. Garg for the Appellant.
J.K. Nayyar, Rajeev Sharma and S.K. Bisaria for the Respondent.
The short question for consideration in this appeal at the instance of the landlord in a proceeding for eviction under the East Punjab Urban Rent Restriction Act is as to whether the appellant before us is a specified landlord as defined in section 2(hh) of the Act.
The High Court has decided against the landlord by relying upon the decision of this Court in the case of D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656.
When this matter came before a 2 Judge Bench on 16.8.1988 the following order was made: "This matter may be listed before a Bench of three Hon 'ble Judges two weeks hence for consideration of the question in the light of the decision of this Court in D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656." Section 2(hh) of the Act defines 'specified landlord ' to mean: 95 "a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State.
" It is not disputed that the appellant was Reader to the Sessions Judge of Sangrur from where he retired on 30th of September, 1981.
He was thus holding a post in connection with affairs of a State.
He was member of a Mitakshara family and the house in question was tenanted out to the respondent by his father in July, 1982, and upon his father dying in the following month the tenant attorned to the appellant.
Section 13 A of the Act provides: "Where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover posses sion of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether expressed or implied), custom or usage to the contrary, a right to recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts: . . ." The amendment came into force with effect from 16.11.1985.
The appellant applied for eviction on 13.5.1986.
Thus, within one year of the enforcement of the Amending Act of 1985, the application for eviction was filed following the procedure laid down under the Act.
Appellant 's conten tion which has been rejected in the Courts below has been that all the ingredients of the definition of 'specified landlord ' are satisfied and he should, therefore, have been admitted to be a 96 specified landlord and given the benefit of the special procedure.
The High Court relied upon the following observa tions in Malhotra 's case: "It has been urged before us on behalf of the respondent at the relevant time i.e. after retirement of the respondent from service within one year of the date of commencement of the said Act he is the landlord of the appel lant and as such he falls within the defini tion of section 2(hh) of the said Act and he becomes a specified landlord.
This submission, in our view, cannot be sustained inasmuch as the words 'specified landlord ' as used in section 2(hh) refer to the person in service of the Union who is a landlord at the time of his retirement from the public service or post in connection with the affairs of the Union or of State.
It cannot in any manner include an ex serviceman who was not a specified landlord qua the tenant and the premises on or before the date of his retirement from the service of the Union.
This has been very succinctly held by this Court in the case of Mrs. Winifred Ross vs Mrs. Ivy Fonseca, which has been referred to hereinbefore.
" Malhotra 's case in terms relied upon an earlier decision of this Court in Mrs. Winifred Ross vs Mrs. Ivy Fonseca, [1984] 1 SCC 288 in support of its view.
It is not disputed that on the ratio laid down by this Court in the two decisions referred to above the High Court had come to the correct conclusion that on the facts the appellant could not be a specified landlord.
It is now for consideration whether the cases of Winifred Ross and D.N. Malhotra, have been correctly decided.
Winifred Ross, case was considering section 13A of the Bombay Rents, Hotel & Lodging Houses Rates Control Act of 1947.
Section 13A had been brought into the Act in 1975.
The said section provided: "Notwithstanding anything contained in this Act, (a) a landlord who is a member of the armed forces of the Union, or who was such member and is duly retired (which term shall include premature retirement), shall be enti tled to recover possession of any premises, on the ground that the premises are bona fide required by him for occupation by himself or any member of his family (which 97 term shall include a parent or other relation ordinarily residing with him and dependent on him); and the Court shall pass a decree for eviction on such ground if the landlord, at the hearing of the suit produces a certificate signed by the Head of his Service or his Commanding Officer to the effect that (i) he is presently a member of the armed forces of the Union or he was such member and is now a retired ex serviceman; (ii) . . . . (b) . . . . " Dealing with this provision this Court said: "The essential requirement is that he should have leased out the building while he was a member of the Armed Forces.
His widow can also recover the premises of which she is or has become the landlord under clause (b) subject to fulfilment of the conditions.
Having regard to the object and purposes of the Act and in particular Section 13 A 1, it is difficult to hold that Section 13 A 1 can be availed of by an ex member of the Armed Forces to recover from a tenant possession of a building which he acquires after his retirement.
Acceptance of this argument will expose the very Section 13 A 1 of the Act to a successful challenge on the ground of violation of Article 14 of the Constitution for it that were so, a retired military officer who has no house of his own can purchase any building in the occupation of a tenant after his retirement, successfully evict a tenant living in it on the ground that he needs it for his use, then sell it for a fancy price and again because he has no house of his own, he can again acquire another building and deal with it in the same way.
There appears to be n0 restriction on the number of times he can do so.
It was argued that he would not be able to get the requisite certificate under the Act more than once.
A reading of Section 13 A 1 of the Act shows that the certificate should show that the person concerned has been a member of the Armed Forces and that he does not possess any other suitable residence in the local area where he or members of his family can reside.
Those 98 conditions being satisfied the certificate cannot be refused.
A liberal construction of Section 13 A1 of the Act as it is being pressed upon us, would also enable unscrupu lous landlords who cannot get rid of tenants to transfer their premises to ex military men, as it has been done in this case in order to avail of the benefit of the said section with a private arrangement between them.
It is also possible that a person who has retired from the Armed Forces may after retirement lease out a premises belonging to him in favour of a tenant and then seek his eviction at his will under Section 13 A 1 of the Act . . . " A little later in the same decision this Court said: "Since a liberal interpretation of Section 13 A 1 of the Act is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution, it has to be read down as conferring benefit only on those members of the Armed Forces who were landlords of the premises in question while they were in serv ice even though they may avail of it after their retirement.
Such a construction would save it from the criticism that it is discrim inatory and also would advance the object of enacting it, namely, that members of the Armed Forces should not while they are in service feel worried about the difficulties of a long drawn out litigation when they wish to get back the premises which they have leased out during their service.
" In Malhotra 's case, this Court was called upon to con sider section 13A of the very Act with which we are now con cerned.
On the basis of the ratio in Winifred Ross ' case, this Court came to the conclusion that until the landlord satisfied the test that he was a landlord qua the premises and the tenant at the time of his retirement or discharge from service, he would not be entitled to the benefit of section 13A of the Act.
It is not disputed that the appellant retired on 30th of September, 1981.
On the finding the appellant is right in his submission that this was not a case of transfer with an oblique motive but as the property belonged to a Mitakshara father, upon his death the property has come to his hands.
This feature which is different from the facts appearing in the two reported decisions, however, would not persuade us to give a different meaning to the definition in section 2(hh).
In both the cases, for good reason this Court came to the conclusion that the public officer 99 should have been a landlord of the premises in question while in service.
Admittedly, the appellant was not the landlord before he superannuated.
We are of the view that the opinion of this Court in Winifred Ross ' case is unassailable and, therefore, the appellant would not be entitled to the benefit of the spe cial procedure in section 13A of the Act.
The appeal fails and is dismissed.
Parties are directed to bear their own costs.
P.S.S. Appeal dismissed.
|
Section 13A of the East Punjab Urban Rent Restriction Act, 1949 lays down the procedure for a 'specified landlord ' to seek immediate recovery of possession of his residential building at any time within one year prior to or within one year after the date of his retirement or after his retire ment but within one year of the date of commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, whichever is later.
Section 2(hh) of the Act defines 'speci fied landlord ' to mean a person who is entitled to receive rent in respect of a building on his own account and who is holding or has held an appointment in a public service or post in connection with the affairs of the Union or of a State.
The appellant, who was holding a post in connection with the affairs of the State, had retired on September 30, 1981.
He was member of a Mitakshara family.
The house in question was tenanted out to the respondent by his father in July 1982 and upon his father dying in the following month the tenant attorned to the appellant.
The amendment came into force with effect from November 16, 1985.
The appellant applied for eviction on May 13, 1986.
He sought benefit of the special procedure laid down in section 13A of the Act on the ground that all the ingredients of the definition of 'speci fied landlord ' were satisfied.
The courts below rejected the contention.
The High Court relying on the ratio laid down by this Court in D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656 and Mrs. Winifred Ross vs Mrs. Ivy Fonseca, [1984] 1 SCC 288 held that the appellant could not be a 'specified land lord '.
Dismissing the appeal by special leave, HELD: Until the landlord satisfies the test that he was a landlord qua the premises and the tenant at the time of his retirement or dis 94 charge from service.
he can not be a 'specified landlord ' as defined in section 2(hh) of the East Punjab Urban Rent Restric tion Act, 1949.
[98F, 94F] In the instant case, the appellant was not the landlord of the premises in question before he superannuated.
He would not, therefore, be entitled to the benefit of the special procedure laid down in section 13A of the Act.
[99A B] D.N. Malhotra vs Kartar Singh, [1988] 1 SCC 656 and Mrs. Winifred Ross vs Mrs. Ivy Fonseca, [1984] 1 SCC 288, ap plied.
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N: Criminal Appeal Nos.273 74 of 1980.
From the Judgment and Order dated 19.1.1980 of the Madhya Pradesh High Court in Crl.
A. Nos.
107 of 1970 and 1 of 1971.
468 R.L. Kohli and K.C. Kohli for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Bhagwan Swaroop was charged under Section 302 IPC for the murder of Man Singh and under Section 307 IPC for an attempt to murder Shahid.
He was further charged under section 451 IPC for committing trespass and also under section 25 A of Arms Act.
Ramswaroop, father of Bhagwan Swaroop, was charged under sections 109/302, 451 IPC and 29 of the Arms Act.
Ramswaroop was acquitted of all the charges by the trial court.
Bhagwan Swaroop was, however, convicted under section 302 IPC and was sentenced to imprisonment for life.
He was acquitted of the other two charges.
The appeal filed by Bhagwan Swaroop was dismissed by the High Court.
The High Court allowed the State appeal and further convicted Bhagwan Swaroop under section 307 IPC and section 25 A Arms Act.
He was sentenced to five years and one year rigorous imprisonment respectively for the said offences.
This appeal before us by way of special leave is by Bhagwan Swaroop against his conviction and sentence on the three counts.
Deceased Man Singh was the son of Shahjor Singh and brother of Babusingh.
They were living in the house owned by Ramswaroop and his sons.
There was dispute between the parties regarding a piece of land which according to the accused, the complainant party was forcibly occupying.
A notice had been served upon Shahjor Singh by the accused, to vacate the said encroachment.
According to the prosecution on May 11, 1969 at about 2.45 p.m. accused Ramswaroop had an altercation with Babusingh, at a place called Gauri and thereafter he rushed the complainant party and started dismantling the tin shed in the disputed land.
Shahjor Singh sent his son Babusingh to the police station to lodge a report.
Meanwhile Man Singh deceased came at the spot and gave a push to Ramswaroop who as a result fell down.
He got up immediately and shouted for his son Bhagwan Swaroop and asked him to bring the rifle and kill the complainant party.
Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh.
Bhagwan Swaroop fired the second shot which hit Shahid.
Man Singh fell down and thereafter complainant Shahjor Singh took out a lathi and gave breathing to Ramswaroop.
Man Singh succumbed to the gun shot injury.
Both the accused denied the commission of the crime.
Accused Ramswaroop stated in his examination as under: 469 "I found Babusingh gambling in my garden.
I asked him as to why he is doing so in the garden, he started abusing me.
I slapped him.
His father came there both of them abused me and then left the place.
I told him that I will make the report of the incident to the police station.
When I reached near the house of Shahjor Singh on my way to the Police Station he along with his sons caught me and started beating me with lathies.
Shahjor Singh brought an axe, when he was about to use his axe on me there was gun fire.
" Accused Bhagwan Swaroop took the plea of alibi which has been rejected by both the courts below.
We are of the view that the said plea was rightly rejected.
The trial court did not believe the prosecution version in toto.
The trial court found that the "prosecution tried to indulge in exaggeration, misrepresentation and at times suppression of facts without any meaning".
The trial court further concluded as under: "The defence version that Babusingh was gambling alongwith others in the garden of the accused Ramswaroop appears correct.
Ramswaroop went there and questioned Babusingh.
There was altercation and use of hot words.
Admittedly Shahjorsingh P.W. I came there and Babusingh accompanied him back to his house.
Ramswaroop further stated in his examination that he gave one slap to Babusingh.
Babusingh as P.W.9 stated that he was given three or four slaps by Ramswaroop.
Thus the fact that Babusingh was slapped, stand established in the case".
The part of the prosecution story, that the accused Ramswaroop rushed towards the house of Shahjor Singh and reached there before the arrival of Shahjor Singh, was also dis believed by the trial court.
Regarding the actual occurrence, it is not disputed that Ramswaroop was given four simple injuries by the complainant.
The prosecution case is that the injuries were given after the gun shot had been fired whereas the defence version is that the gun shot was fired while lathi injuries were being given to Ramswaroop.
Trial court considered the statements of Banne Khan, P.W.6, Shahid P.W.8, Sarfuddin P.W.11, Safaat Ahmad D.W.1 and Hamid Ahmed D.W.3 and came to the following conclusion: "Any way this one fact is clear from the evidence of these eye witnesses that Ramswaroop was put to beating, then there was gun fire and Bhagwanswaroop was seen on the spot" 470 The trial court on appreciation of the evidence produced by the prosecution and the complainants came to the conclusion that the following facts stood established from the evidence: "Ramswaroop, came near the house of Shahjorsingh.
There was exchange of abuses between Shahjorsingh and Ramswaroop.
Ramswaroop tried to remove the tin shed of Gonda.
He was pushed aside by Mansingh and then put to beating by lathies.
" It was under these circumstances that Ramswaroop asked his son to fire the gun shot.
The question for our consideration is whether on the facts of this case the appellant can claim right of private defence.
The learned trial court came to the conclusion that since minor injuries were caused by the lathi there was no basis for entertaining a reasonable apprehension that Ramswaroop would be killed or hurt grievously and as such the plea of self defence was rejected.
The High Court upheld the finding of the trial court in the following words: "No doubt the respondent Ramswaroop had injuries on his person.
There were two simple injuries caused by hard and blunt object and the other two could be caused by fall for which there is definite prosecution evidence that the respondent Ramswaroop was pushed and he fell down.
These injuries on him could not give rise to any apprehension of either grievous hurt or death.
" We do not agree with the courts below.
It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun shot was fired by Bhagwan Swaroop to save his father from further blows.
A lathi is capable of causing a simple as well as a fatal injury.
Whether in fact the injuries actually caused were simple or grievous is of no consequence.
It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun shot at that point of time in defence of his father is justified.
We, therefore, set aside the finding of the courts below on this point and hold that Bhagwan Swaroop fired the gun shot to defend the person of his father.
The trial court on the basis of the evidence on the record, including that of Dr. Mukherjee P.W.5, came to the conclusion that only one shot was fired by Bhagwan Swaroop.
According to the trial court Shahid was accidentally hit by the pellets spread by the gun shot.
It was on these findings that trial court acquitted Bhagwan Swaroop of the charge 471 under 307 IPC.
We agree with the trial court and hold that the High Court was not justified in reversing the same.
The High Court further grossly erred in setting aside the acquittal of Bhagwan Swaroop under section 25 A of the Arms Act.
Using the licensed gun of his father under the circumstances of this case cannot be considered possessing an arm without a licence.
We agree with the reasoning and findings of the trial court and hold that High Court was not justified in setting aside the acquittal of Bhagwan Swaroop under Arms Act.
For the reasons given above we allow the appeal, set aside the conviction of appellant Bhagwan Swaroop under section 302 IPC, 307 IPC and 25 Arms Act and acquit him on all these counts.
He is already in bail.
His bail bonds are discharged.
V.P.R. Appeal allowed.
|
The deceased along with his father and brother was living in the house owned by the accused appellant 's father.
There was dispute between the accused and the complainant party regarding a piece of land which according to the accused, the complainant party was forcibly occupying.
On May 11, 1969 at about 2.45 p.m. appellant 's father had an altercation with deceased 's brother.
Thereafter he went to deceased 's house and abused the complainant party and started dismantling the tin shed on the disputed land.
The prosecution 's case was that the deceased 's brother was sent to police station to lodge a report.
The deceased came at the spot and gave a push to appellant 's father.
He fell down.
Getting up, immediately, shouted for appellant and asked him to bring the rifle and kill the complainant party.
The appellant brought a gun and fired a shot hitting the deceased.
The appellant fired the second shot which hit another.
The deceased fell down and thereafter the deceased 's father took out a lathi and gave beating to appellant 's father.
The deceased succumbed to the gunshot injury.
Appellant was charged under Section 302, 307, 451 IPC and also under section 25 A of Arms Act.
The father of appellant was charged under sections 109/302, 451 IPC and 29 of the Arms Act.
The appellant and its father denied the commission of the 467 crime.
Appellant 's plea of alibi was rejected by the trial court.
It also did not believe the prosecution case in toto.
The appellant 's father was acquitted of all the charges by the trial court.
It convicted the appellant under section 302 IPC and he was sentenced to imprisonment for life, but he was acquitted of the other charges.
The High Court allowed the State 's appeal convicting the appellant under section 307 IPC and section 25 A Arms Act also.
He was sentenced to five years and one year rigorous imprisonment respectively for the offences.
The appellant filed this appeal before this Court by way of special leave.
On the question, whether on the facts of the case, the appellant accused can claim right of private defence, allowing the appeal, this Court, HELD:1.
It is established on the record that the appellant 's father was being given lathi blows by the complainant party and it was at that time that gun shot was fired by the appellant to save his father from further blows.
A lathi is capable of causing a simple as well as a fatal injury.
Whether in fact the injuries actually caused were simple or grievous is of no consequence.
It is the scenario of a father being given lathi blows which has to be kept in mind.
In such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun shot at that point of time in defence of his father is justified.
The appellant fired the gun shot to defend the person of his father.
[470 E G] 2.
Using the licensed gun of his father under the circumstances of the case cannot be considered possessing an arm without a licence.
The High Court grossly erred in setting aside the acquittal of the appellant under section 25 A of the Arms Act.
[471 A B]
|
1. By way of this application filed under Section 482 of the
Code of Criminal Procedure read with Article 226 of the
Constitution of India, the applicants have prayed to quash and
set aside the order dated 18.11.2019 passed by the Court of
learned 13th Additional Chief Judicial Magistrate, Rajkot below
Exhibit-1 in Criminal Case No.16873 of 2019 whereby, the
complaint filed by respondent No.2 herein, original
complainant, under section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as the NI Act”) was ordered
to be registered and process under Section 204 of Cr.P.C. was
ordered to be issued against the applicants herein and have
also prayed to quash and set aside all the consequential
proceedings initiated under Criminal Case No.16873 of 2019.
2. The facts in brief are as under;
The applicant No.1 herein is a Company registered under
the Companies Act, 1956 and having its Registered Office at
“Dashrathvadi, Court Road, Naidad”. It is engaged in the
business of production of Grey Cast Iron and Nodular Iron
(Ductile Iron) castings weighing from 5 Kgs to 150 Kgs and is
also a supplier of fully finished parts to Original Equipment
Manufacturers since the year 1956. The factory premises of
applicant No.1 Company is located at Nadiad and it employs
around 1500 workers. The respondent No.2 herein is a
Partnership Firm registered under the provisions of the Indian
Partnership Act and is engaged in the business of manufacture
of Casting Parts. It also accepts orders and manufacturers
casting parts as per requirements of different customers.
2.1 It appears that the parties were into business relations for
several years. However, in the year 2014, problem arose in
their business relation when a large number of parts that had
been supplied by the respondent No.2 to applicant No.1
Company, which, in turn, had supplied it to its clients were
rejected and returned to applicant No.1 Company for being
defective or of inferior quality. It is the say of the applicants
that on account of the defective parts manufactured by the
No.2, which were, in turn, supplied by the applicants to the
Original Equipment Manufacturers, who were mainly into the
Automobile industry, defects were reported in the vehicles in
which the parts were used and resultantly, the automobile
manufactures had to call back several numbers of vehicles for
carrying out necessary repair works. As a result thereof, the
applicant No.1 Company had suffered huge financial loss and
had sustained a big blow on its reputation and goodwill in the
2.2 The respondent No.2 herein filed a summary suit being
Special Summary Suit No.23 of 2014 against the applicant No.1
Company before the Court of learned 4 th Additional Senior
Civil Judge at Rajkot under Order 37 of the Code of Civil
Procedure for recovery of an amount of Rs.1,12,26,500/- being
the amount payable with interest by the applicant-defendant to
the respondent-plaintiff for the work executed and goods
delivered as per the order placed by applicant No.1 Company.
In the suit proceeding, the applicant No.1 Company preferred
an application seeking Leave to Defend; however, the same
was rejected. Thereafter, vide judgment and order dated
07.05.2015, the Court of learned 4 th Additional Senior Civil
Judge at Rajkot decreed Special Summary Suit No.23 of 2014
in favour of the respondent-plaintiff and directed the applicant
No.1-Company to pay an amount of Rs.1,12,26,500/- along
with 6% interest to the respondent-plaintiff.
2.3 Against the said judgment and decree dated 07.05.2015
passed by the civil Court, the applicant No.1 Company
preferred appeal being First Appeal No.1730 of 2015 before
this Court along with an application seeking stay of the said
judgment and decree. While admitting the First Appeal vide
order dated 29.01.2016, the Division Bench of this Court
granted interim relief in favour of applicant No.1 Company by
staying operation and implementation of the judgment and
decree dated 07.05.2015 on condition that applicant No.1
Company deposits an amount of Rs.43,40,061/- before the civil
Court within the stipulated period and to furnish appropriate
security to the satisfaction of the civil Court for the remaining
amount. As the applicant No.1 Company failed to make such
deposit, the respondent-complainant instituted execution
petition being Special Execution Petition No.24 of 2015 before
the civil Court at Rajkot and upon transfer of the petition to
the Commercial Court, it was re-numbered as Execution
Petition No.10 of 2019.
2.4 In the execution proceedings, the respondent-plaintiff
moved application Exhibit-11 seeking issuance of warrant for
the attachment of the movable / immovable properties of
applicant No.1 Company. Before the said application was
decided, the respondent-plaintiff moved another application
vide Exhibit-15 seeking identical relief. It appears that the civil
at Rajkot allowed application Exhibit-15 ex-parte vide order
dated 22.03.2016 directing issuance of a Warrant of
Attachment against the applicant No.1 Company. On the same
day, the civil Court also passed an order disposing of the
application Exhibit-11 by observing that in spite of the service
of application on applicant No.1 Company, no reply had been
filed by applicant No.1 Company and necessary orders have
already been passed in application Exhibit-15. In pursuance
thereof, the Court of learned Principal Senior Civil Judge at
Rajkot issued Warrant of Attachment dated 31.03.2016 against
the applicant No.1 Company.
2.5 It is the say of the applicants that the respondent-
complainant, armed with the attachment warrant dated
31.03.2016, came at the factory premises of applicant No.1
Company situated at District : Nadiad with few men and began
to load the goods, equipments and other movable properties,
etc. kept at the factory premises into Trucks. They also
threatened to remove the machineries / equipments installed at
the factory premises and to disrupt the production process. The
applicant No.2 herein, who was present at the factory premises
at the relevant time, negotiated with the respondent-
complainant to salvage the situation. In pursuance thereof, the
parties executed a Deed of Undertaking titled “Bahedaari
Karar” dated 07.04.2016 on a Rs.100/- Stamp Paper in the
presence of the Court Bailiff, which is evident from the report
filed by the Court Bailiff vide Annexure-H. In the said Deed of
Undertaking, it has been averred that the respondent has filed
Special Summary Suit No.24 of 2015 in the civil Court at
Rajkot. In the said proceeding, the Court below issued Warrant
of Attachment on 31.03.2016 for Rs.1,23,13,879/-. When the
parties reached the factory premises of C.M. Smith at Nadiad
for serving the Warrant of Attachment, the respondent is given
11 cheques. The Eleventh cheque bearing No.807621 drawn on
Ahmedabad is of Rs.69,62,879/- and the said cheque is to be
kept as Security. It is further stated that the said cheque is not
to be deposited by the respondent in the Bank until the final
outcome of the Summary Suit and the First Appeal filed before
this High Court. It was also agreed upon that hearing of the
First Appeal filed before this High Court has to be concluded
in one year and that if the First Appeal is disposed of as
aforesaid, then appropriate decision shall be taken as regards
the aforesaid cheque given as security after carrying out due
deliberations and discussions with C.M. Smith. If C.M. Smith
becomes unsuccessful in getting the First Appeal disposed of
within two years, then the respondent shall have the right to
deposit the aforesaid cheque. It is also recorded that the said
Deed of Undertaking was executed at the free will of the
parties and without any coercion.
2.6 It appears that against the Warrant of Attachment, the
applicant No.1 Company had preferred Special Civil Application
No.7417 of 2016 before this Court. The said petition came to
be disposed of by the coordinate Bench of this Court vide
order dated 18.11.2016. Paragraphs – 4 to 6 of the order reads
“4. In light of the statement made at bar, order dated
22.03.2016 passed by the learned 12th Additional Senior
Civil Judge, Rajkot below Exh.15 in Special Execution
Petition No.24 of 2015 is hereby quashed and set aside
and the learned Executing Court is directed to decide
application Exhs.11 and 15 afresh and pass appropriate
order after hearing both sides. So far as request to return
the amount of cheque is concerned, the said request is
kept open to be agitated before the learned Executing
Court. The learned Executing Court is directed to consider
such request while deciding application Exhs.11 and 15
afresh. Meanwhile, the respondent shall not deposit the
cheques issued by the petitioner for execution of decree
till final disposal of application Exhs.11 and 15.
5. It is made clear that this Court has not examined
application Exhs.11 and 15 on merits and the learned
Executing Court shall decide the same on merits
uninfluenced by the observations recorded in the
impugned order as well as concessional statement made
at bar by the learned advocate appearing for the
respondent. Not only that, the learned Executing Court
shall pass appropriate order of refund of cheque amounts
realized while executing order dated 22.03.2016 and also
order to return unrealized cheques to the petitioner, if
application Exhs.11 and 15 are decided in favour of the
petitioner.
6. In view of the above observation and direction,
present petition stands disposed of. Direct service is
permitted...”
2.7 Pursuant to the order dated 18.11.2016 passed by this
Court, the Court of learned Principal Senior Civil Judge, Rajkot
adjudicated applications Exhibits – 11 and 15 afresh and vide
order dated 20.08.2019, the trial Court confirmed its earlier
order passed below applications Exhibits – 11 and 15. The said
order dated 20.08.2019 was challenged before this Court in
Special Civil Application No.15137 of 2019. While disposing of
the said writ petition by way of judgment and order dated
16.10.2019, the Division Bench of this Court made the
following observations:
“32. At least one thing is clear that the impugned order
is not tenable in law and it will have to be quashed and
set-aside.
33. In the result, this petition succeeds and is hereby
allowed. The impugned order passed by the Principal
Senior Civil Judge, Rajkot, dated 20th August 2019 below
Exhibits 11 and 15 respectively in the Execution Petition
No.10 of 2019 is hereby quashed and set-aside.
34. However, we reserve the liberty for the respondent
(decree holder) to prefer an application in the court
which passed the decree against the applicant for transfer
of the decree to the court within whose territorial
jurisdiction the immovable properties of the applicant are
situated. In fact, clause (2) of Section 39 also provides
that the court which passed a decree may of its own
motion send it for execution to any subordinate court of
competent jurisdiction. In other words, while sub-section
(1) deals with transfer to another competent court having
jurisdiction or assets being located within its jurisdiction,
sub-section (2) empowers the court passing the decree on
its own motion to transfer it for execution to any
subordinate court of competent jurisdiction. Sub-section
(2) confers a suo motu power to assign a decree for
execution of its own motion to any subordinate court.
The exercise of the power under sub-section (2) of
Section 39 of the Code, to send the decree for execution
to a subordinate court can be exercised without meeting
the requirements of sub-clauses (a) to (d) under sub-
section (1) of Section 39 of the Code.
35. Mr.Pandya, the learned counsel appearing for the
respondent, submitted that he would advise his client to
prefer an appropriate application at the earliest under
Section 39 of the Code for transfer of the decree. If any
such application is preferred, the court concerned shall
pass appropriate order at the earliest after giving
opportunity of hearing to the other side.
36. With the above, this petition is disposed of. Rule
made absolute to the aforesaid extent.”
2.8 It appears that the respondent-complainant presented the
cheque of Rs.69,62,879/- bearing No.807621 drawn on
Ahmedabad with the Bank on 06.09.2019. However, the
cheque got returned on 07.09.2019 with the endorsement of
“Drawers signature not as per mandate”. In pursuance thereof,
the respondent-complainant issued Notice dated 10.10.2019 to
the applicants under section 138 of the NI Act. The applicants
replied to the said notice vide reply dated 13.11.2019. On
18.11.2019 the respondent-complainant filed complaint under
section 138 of the NI Act before the Court of learned 13 th
Additional Senior Civil Judge & A.C.J.M., Rajkot, which was
numbered as Criminal Case No.16873 of 2019. On the said
complaint, the Court below passed the impugned order dated
18.11.2019 below Exhibit-1 directing issuance of process under
Section 204 of Cr.P.C. Being aggrieved by the same, the
present application has been preferred.
3. Mr. Y.S. Lakhani, learned Senior Advocate appearing with
Mr. Aditya J. Pandya for the applicants, submitted that the
process issued by the Court below is contrary to the settled
principles of law related to negotiable instruments. For a
complaint under Section 138 of the NI Act to be sustainable,
the disputed cheque should have been issued in respect of any
“enforceable debt”, which the drawer is liable to pay to the
holder in due course. If the cheque is not issued in furtherance
of any such “enforceable debt”, then no cognizance under
Section 138 of the NI Act could be taken. It was also urged
that the cheque in question was given as ‘security’, which is
evident from the Deed of Undertaking dated 07.04.2016
executed before the Court Bailiff. The said Deed of
Undertaking clarifies the fact that the cheque in question was
given as ‘security’ and not in connection with any ‘enforceable
debt’. He, therefore, contended that the Court below has
committed serious error in law and on facts in issuing process
to the applicants on the complaint filed by the respondent-
complainant under Section 138 of the NI Act.
3.1 The learned Senior Advocate further submitted that the
entire process was initiated in pursuance of the order dated
23.03.2016 passed by the Court of learned Principal Senior
Civil Judge at Rajkot below applications Exhibits – 11 and 15
in Execution Petition No.10 of 2019. It was contended that the
said order dated 23.03.2016 is void ab initio inasmuch as the
civil Court at Rajkot Court had no jurisdiction to issue Warrant
of Attachment in respect of properties which are situated
beyond the jurisdiction of Rajkot. He pointed out that the
properties of applicant No.1 Company, in respect of which the
Warrant of Attachment was issued, are situated in District
Nadiad, which does not fall within the jurisdiction of the Court
of learned Principal Senior Civil Judge at Rajkot as both the
places fall under different jurisdictions. Only the civil Court
situated at Nadiad would have the jurisdiction to pass an order
of issuance of Warrant of Attachment against the applicant
No.1 Company. Hence, the order directing issuance of Warrant
of Attachment against the applicant No.1 Company was illegal
and erroneous.
3.2 It was urged by learned Senior Advocate Mr. Lakhani
that it was in pursuance of the aforesaid Warrant of
Attachment that applicant No.2 had issued the cheque in
question in favour of the respondent-complainant. It was
pointed out that this Court has passed detailed orders on the
legality of the Warrant of Attachment issued by the civil Court
at Rajkot in Special Civil Application No.7417 of 2016 and
Special Civil Application No.15137 of 2019. Now, when the
order directing issuance of Warrant of Attachment itself is
found to be illegal, all consequential proceedings would be
rendered unsustainable. Hence, the entire proceedings under
section 138 of the NI Act, which are initiated on the basis of
the cheque given by applicant No.1 Company in pursuance of
the attachment proceedings, is erroneous and unsustainable in
the eyes of law.
4. Mr. Nilesh Pandya, learned advocate appearing with
learned advocate Mr. Haresh Patel for respondent No.2,
submitted that the cheque in question was issued in pursuance
of the settlement agreement dated 07.04.2016 executed by and
between the parties. He submitted that the execution
proceedings and the proceedings under the NI Act are totally
different and independent of each other. Therefore, even if it
may be that the settlement agreement was executed in
pursuance of the Warrant of Attachment issued in the
execution proceedings initiated before the civil Court at Rajkot,
it would not render the present proceedings under the NI Act
unsustainable in the eyes of law.
4.1 Learned advocate Mr. Pandya further submitted that the
order of the Division Bench of this Court in Special Civil
Application No.15137 of 2019, by which the orders passed by
the civil Court at Rajkot below Exhibits – 11 and 15 in
Execution Petition No. 10 of 2019 were quashed and set aside,
was passed on 16.10.2019. However, much before the said
order came to be passed, the parties had executed the
settlement agreement, i.e. Deed of Undertaking, on 07.04.2016,
which was the basis for the initiation of proceedings under the
NI Act. Therefore, the initiated of proceedings under Section
138 of the NI Act was legal and justified.
4.2 Learned advocate Mr. Pandya contended that the
applicant No.1 Company has committed default in making
payment of the goods that were delivered by the respondent-
complainant, which has not been disputed by the applicants
and it was in respect of such payment that the parties had
executed the settlement agreement dated 07.04.2016. Thus, the
cheque in question was issued against the legally enforceable
debt, which the respondent-complainant was entitled to receive
from the applicants. He pointed out that though the word
‘security’ has been used in the settlement agreement dated
07.04.2016, the same refers to the cheque being issued towards
repayment of instalment of outstanding amount. The repayment
becomes due under the settlement agreement once the terms of
the agreement are violated. In this case, the applicants had
failed to abide the terms of settlement agreement and
therefore, the dishonor of the cheque in question would fall
under Section 138 of the NI Act. Therefore, the cheque would
represent the outstanding liability. He submitted that the
applicants will have to adduce necessary evidence in trial to
show that the cheque in question was not issued against any
enforceable debt and the present proceedings under Section
482 of Cr.P.C. is not the appropriate remedy. He, therefore,
prayed that the present application deserves to be rejected.
4.3 In support of his submissions, learned advocate Mr.
Pandya placed reliance upon the decision of Apex Court in the
case of Sampelly Satyanarayana Rao v. Indian Renewable
Energy Development Agency Limited, (2016) 10 SCC 458 more
particularly, on the observations made in paragraphs – 9 and
13 to 16, which reads thus:
“9. We have given due consideration to the submission
advanced on behalf of the appellant as well as the observations of
this Court in Indus Airways (supra) with reference to the
explanation to Section 138 of the Act and the expression “for
discharge of any debt or other liability” occurring in Section 138
of the Act. We are of the view that the question whether a post-
dated cheque is for “discharge of debt or liability” depends on the
nature of the transaction. If on the date of the cheque liability or
debt exists or the amount has become legally recoverable, the
Section is attracted and not otherwise.
13. In Balaji Seafoods (supra), the High Court noted that the
cheque was not handed over with the intention of discharging the
subsisting liability or debt. There is, thus, no similarity in the facts
of that case simply because in that case also loan was advanced. It
was noticed specifically therein – as was the admitted case of the
parties – that the cheque was issued as “security” for the advance
and was not intended to be in discharge of the liability, as in the
present case.
14. In HMT Watches Ltd. versus M.A. Abida[8], relied upon on
behalf of the respondent, this Court dealt with the contention that
the proceedings under Section 138 were liable to be quashed as the
cheques were given as “security” as per defence of the accused.
Negativing the contention, this Court held : (SCC pp.779-80, paras
“10. Having heard the learned counsel for the parties, we
are of the view that the accused (Respondent 1) challenged
the proceedings of criminal complaint cases before the High
Court, taking factual defences. Whether the cheques were
given as security or not, or whether there was outstanding
liability or not is a question of fact which could have been
determined only by the trial court after recording evidence
of the parties. In our opinion, the High Court should not
have expressed its view on the disputed questions of fact in a
petition under Section 482 of the Code of Criminal
Procedure, to come to a conclusion that the offence is not
made out. The High Court has erred in law in going into the
factual aspects of the matter which were not admitted
between the parties. The High Court further erred in
observing that Section 138(b) of the NI Act stood
uncomplied with, even though Respondent 1 (accused) had
admitted that he replied to the notice issued by the
complainant. Also, the fact, as to whether the signatory of
demand notice was authorised by the complainant company
or not, could not have been examined by the High Court in
its jurisdiction under Section 482 of the Code of Criminal
Procedure when such plea was controverted by the
complainant before it.
11. In Suryalakshmi Cotton Mills Ltd. v. Rajvir Industries
Ltd. [(2008) 13 SCC 678], this Court has made the following
observations explaining the parameters of jurisdiction of the
High Court in exercising its jurisdiction under Section 482
of the Code of Criminal Procedure: (SCC pp. 685-87, paras
“17. The parameters of jurisdiction of the High Court
in exercising its jurisdiction under Section 482 of the
Code of Criminal Procedure is now well settled.
Although it is of wide amplitude, a great deal of
caution is also required in its exercise. What is
required is application of the well- known legal
principles involved in the matter.
22. Ordinarily, a defence of an accused although
appears to be plausible should not be taken into
consideration for exercise of the said jurisdiction. Yet
again, the High Court at that stage would not
ordinarily enter into a disputed question of fact. It,
however, does not mean that documents of
unimpeachable character should not be taken into
consideration at any cost for the purpose of finding
out as to whether continuance of the criminal
proceedings would amount to an abuse of process of
court or that the complaint petition is filed for causing
mere harassment to the accused. While we are not
oblivious of the fact that although a large number of
disputes should ordinarily be determined only by the
civil courts, but criminal cases are filed only for
achieving the ultimate goal, namely, to force the
accused to pay the amount due to the complainant
immediately. The courts on the one hand should not
encourage such a practice; but, on the other, cannot
also travel beyond its jurisdiction to interfere with the
proceeding which is otherwise genuine. The courts
cannot also lose sight of the fact that in certain
matters, both civil proceedings and criminal
proceedings would be maintainable.”
12. In Rallis India Ltd. v. Poduru Vidya Bhushan [(2011)
13 SCC 88], this Court expressed its views on this point as
under: (SCC p. 93, para 12)
“12. At the threshold, the High Court should not have
interfered with the cognizance of the complaints
having been taken by the trial court. The High Court
could not have discharged the respondents of the said
liability at the threshold. Unless the parties are given
opportunity to lead evidence, it is not possible to come
to a definite conclusion as to what was the date when
the earlier partnership was dissolved and since what
date the respondents ceased to be the partners of the
firm.”
15. We are in respectful agreement with the above observations.
In the present case, reference to the complaint (a copy of which is
Annexures P-7) shows that as per the case of the complainant, the
cheques which were subject matter of the said complaint were
towards the partial repayment of the dues under the loan
agreement (para 5 of the complaint).
16. As is clear from the above observations of this Court, it is
well settled that while dealing with a quashing petition, the Court
has ordinarily to proceed on the basis of averments in the
complaint. The defence of the accused cannot be considered at this
stage. The court considering the prayer for quashing does not
adjudicate upon a disputed question of fact.”
4.4 Reliance was also placed on a recent decision of the
Apex Court in the case of Sripati Singh (Since Deceased)
Through His Son Gaurav Singh v. The State of Jhardkhand
passed in Criminal Appeal Nos. 12691270 of 2021 decided on
28.10.2021 wherein similar principle has been laid down.
5. Heard learned advocates on both the sides. From the
record of the case, it appears that the parties had business
relations since the year 2008. There does not appear any
controversy on the issue that the Registered Office of applicant
No.1, which is a Company incorporated under the Companies
Act, is situated in District : Nadiad. The applicant No.1
Company is also having its factory premises in District :
Nadiad. The respondent-complainant filed Special Summary
Suit No.23 of 2014 before the Court of learned Civil Judge,
Senior Division, Rajkot against applicant No.1 Company for
recovery of an amount of Rs.1,12,26,500/- with interest. The
said suit came to be decreed in favour of the respondent-
plaintiff vide judgment and order dated 07.05.2015. Against
the said judgment and decree, the applicant No.1-defendant
preferred First Appeal No.1730 of 2015 before this Court along
with an application seeking interim stay of the judgment and
decree. While admitting the said first appeal vide order dated
29.01.2016, the Division Bench of this Court granted interim
relief in favour of applicant No.1-Company by staying
operation and implemention of the judgment and decree dated
07.05.2015 on condition that applicant No.1-Company deposits
an amount of Rs.43,40,061/- before the trial Court within the
stipulated period and to furnish appropriate security to the
satisfaction of the trial Court for the remaining amount failing
which the interim relief was ordered to get vacated
6. However, the applicants could not deposit the amount as
aforesaid and therefore, the respondent-complainant initiated
execution proceedings before the Court of learned Civil Judge,
Senior Division, Rajkot. In the execution proceedings, the
respondent-complainant moved an application Exhibit-11
seeking issuance of a Warrant of Attachment of the movable /
immovable properties of applicant No.1 Company. It appears
that before application Exhibit-11 could be adjudicated upon
on the date fixed for hearing, the respondent-decree holder
preferred another application vide Exhibit-15 seeking similar
relief on an earlier date. Without affording any opportunity of
hearing to applicant No.1-Company, the executing Court
allowed application Exhibit-15 vide order dated 22.03.2016.
7. Against the said order dated 22.03.2016, the applicant
No.1-Company preferred a writ petition before this Court in
Special Civil Application No.7417 of 2016. While granting ad-
interim relief in favour of applicant No.1-Company at the time
of issuing Notice in the writ petition, the learned Single Judge
“1. Prima facie, it appears that the respondent – decree
holder moved an application below Exh.11 in Special
Execution Petition No.24 of 2015 with a request to issue
warrant for attachment of movable/immovable properties of
the petitioner. The said application was kept for hearing
on 12.04.2016. On 22.03.2016, the respondent – decree
holder made an application to take the matter on board
and presented an application below Exh.15 for identical
relief, as prayed for, in application Exh.11. It seems that
copy of application Exh.15 was provided to the learned
advocate appearing for the petitioner but, the learned
Executing Court has not heard any submissions of the
petitioner nor granted any time and, in his absence,
passed order below Exh.15. Upon perusal of Rojkam
submitted by learned advocate for the petitioner, which
is ordered to be taken on record, it appears that learned
advocate for the petitioner was not present when order
below Exh.15 has been passed and thus, the impugned
order has been passed without extending any
opportunity to the petitioner.
2. Apart from it, it is a matter of fact that the decree under
execution was passed by the competent Court at Rajkot
whereas, warrant issued by the learned trial Judge as per
order dated 22.03.2016 came to be executed for attachment
of movable/immovable properties situated at Nadiad. Thus,
considering the provisions of Section 39(4) of the Code of
Civil Procedure, the learned Executing Court is not
authorized to issue such warrant for executing the decree
against any property outside the local limits of its jurisdiction.
Admittedly, warrant issued pursuant to application Exh.15
came to be executed in respect of properties situated at
Nadiad and, therefore, present petition deserves
consideration. Hence, issue notice to the respondent for final
disposal, making it returnable on 26.07.2016. Meanwhile, ad-
interim relief in terms of para 18(B) is granted. Direct service
is permitted. The learned advocate for the petitioner is
permitted to file additional documents with the Registry of
7.1 The aforesaid writ petition was disposed of by the
learned Single Judge of this Court vide order dated 18.11.2016.
The relevant paragraphs of the order reads as under:
“2. Learned advocate Mr.Nilesh Pandya appearing for learned
advocate Mr.H.H. Patel for the respondent, upon instructions,
states at bar that the order passed below Exh.15 may be quashed
and set aside and the learned trial Judge may be directed to hear
application Exhs.11 and 15 moved in Special Execution Petition
No.24 of 2015 afresh and pass appropriate order after hearing
both sides.
3. As against this, learned advocate Mr.S.M. Thakore for the
petitioner makes a request that the petitioner has issued cheque for
a sum of Rs.10 lacs pursuant to order passed by the learned
Executing Court on 22.03.2016 and that, the amount received
through the said cheque and other cheques obtained during the
course of execution of decree, more particularly, placed on record
at page Nos.79 to 82 to the present petition, may be ordered to be
returned back to the petitioner.
4. In light of the statement made at bar, order dated
22.03.2016 passed by the learned 12th Additional Senior Civil
Judge, Rajkot below Exh.15 in Special Execution Petition No.24
of 2015 is hereby quashed and set aside and the learned
Executing Court is directed to decide application Exhs.11 and 15
afresh and pass appropriate order after hearing both sides. So far
as request to return the amount of cheque is concerned, the said
request is kept open to be agitated before the learned Executing
Court. The learned Executing Court is directed to consider such
request while deciding application Exhs.11 and 15 afresh.
Meanwhile, the respondent shall not deposit the cheques issued by
the petitioner for execution of decree till final disposal of
application Exhs.11 and 15.
5. It is made clear that this Court has not examined application
Exhs.11 and 15 on merits and the learned Executing Court shall
decide the same on merits uninfluenced by the observations
recorded in the impugned order as well as concessional statement
made at bar by the learned advocate appearing for the respondent.
Not only that, the learned Executing Court shall pass appropriate
order of refund of cheque amounts realized while executing
order dated 22.03.2016 and also order to return unrealized
cheques to the petitioner, if application Exhs.11 and 15 are
decided in favour of the petitioner.
6. In view of the above observation and direction, present
petition stands disposed of. Direct service is permitted.”
7.2 From the above order passed by the coordinate Bench of
this Court in Special Civil Application No.7417 of 2016, it is
clear that the executing Court at Rajkot was required to
adjudicate both the applications Exhibits 11 and 15 afresh. It
was specifically brought to the notice of the executing Court at
Rajkot that the decree under execution was passed by the civil
Court at Rajkot whereas, the warrant has been issued for
attachment of movable / immovable properties situated at
Nadiad, which the executing Court at Rajkot was not legally
authorized to do. Issuance of warrant of attachment in respect
of any property situated outside the local limits of jurisdiction
is barred in view of the provisions of Section 39(4) of the
Code of Civil Procedure and hence, the executing Court at
Rajkot was directed to examine the matter afresh. This Court
had also directed the executing Court at Rajkot to pass
appropriate orders for the refund of cheque amounts realized
while executing the order dated 22.03.2016 and also to return
the unrealized cheques to applicant No.1-Company.
7.3 It was in the aforesaid background that the executing
Court at Rajkot was required to consider applications Exhibits
– 11 and 15 preferred in Execution Petition No. 10 of 2019
afresh. However, while considering the matter afresh, the
executing Court at Rajkot appears to have ignored the
observations made by this Court in Special Civil Application
No.7417 of 2016 and passed the order dated 20.08.2019 below
applications Exhibits – 11 and 15 whereby, it stood by its
earlier order dated 22.03.2016.
8. It appears that pursuant to the passing of the order dated
20.08.2019 by the executing Court at Rajkot, the respondent-
complainant deposited the cheque in question with the Bank
on 06.09.2019, which got returned on 07.09.2019.
Indisputably, the cheque in question was given as ‘security’ by
the applicant No.1-Company, which has been stated in the
Deed of Undertaking dated 07.04.2016 in unequivocal terms.
9. Against the order dated 20.08.2019 passed by the
executing Court at Rajkot below applications Exhibits – 11 and
15 in Execution Petition No.10 of 2019, the applicant No.1-
Company preferred Special Civil Application No.15137 of 2019
before this Court. By way of judgment and order dated
26.10.2019, the Division Bench of this Court allowed the writ
petition by quashing and setting aside the order dated
20.08.2019 passed by the executing Court at Rajkot.
10. From the above set of facts, it is clear that the earlier
order dated 22.03.2016 passed by the executing Court at
Rajkot below application Exhibit-15 was quashed and set aside
by the coordinate Bench of this Court vide order passed in
Special Civil Application No.7417 of 2016 dated 18.11.2016
and the matter was remanded to the executing Court at Rajkot
for consideration afresh. The executing Court at Rajkot
considered the matter afresh; however, it stood by the
conclusion arrived at in its earlier order dated 22.03.2016 by
passing the order dated 20.08.2019 below applications Exhibits
– 11 and 15. The said order dated 20.08.2019 was assailed
before this Court in Special Civil Application No.15137 of 2019
and by judgment and order dated 16.10.2019, the subsequent
order dated 20.08.2019 passed by the executing Court at
Rajkot was quashed and set aside by the Division Bench of this
Court. Thus, both the orders dated 22.03.2016 and 20.08.2019
passed by the executing Court at Rajkot below Exhibits – 11 &
15 were quashed and set aside by this Court after recording
elaborate reasons. This would render the initiation of all
proceedings, including the issuance of Warrant of Attachment
dated 31.03.2016 and the subsequent execution of the Deed of
Undertaking dated 07.04.2016 in the presence of the Court
Bailiff, as baseless because the very source of the issuance of
the Warrant of Attachment being the orders passed below
applications Exhibits – 11 & 15 have been quashed and set
aside by this Court in both rounds of litigation. When the
orders below applications Exhibits – 11 & 15 have been
quashed and set aside by this Court, the Warrant of
Attachment and all consequential proceedings, including the
Deed of Undertaking dated 07.04.2016, would not have any
legal basis.
11. Coming to the proceedings initiated under the NI Act, it
is not in dispute that the cheque in question was given as
‘security’. The Deed of Undertaking dated 07.04.2016 executed
by and between the parties in the presence of the Court Bailiff
lays down the terms and conditions of payment. It specifically
mentions that the cheque in question has been been given as
‘security’ and also lays down the conditions as to when the
said cheque shall be deposited. It is a settled proposition of
law that proceedings under Section 138 of the NI Act would
lie only in respect of any ‘enforceable debt’.
11.1 In the case of Lalit Kumar Sharma v. State of Uttar
Pradesh, 2008 (5) SCC 638, the facts were that a Company,
named M/s. Mediline India (P) Ltd. had taken loan of Rs.5
Lacs from the complainant. Against the said loan, two cheques
for Rs.3 Lacs and Rs.2 Lacs were issued in favour of the
complainant. On presentation, both the cheques were returned
upaid with the remarks - “insufficient funds”. Therefore, a
complaint under Section 138 of the N.I. Act and other sections
came to be filed. It was the say of the appellants that they
were not signatories to the cheques and that on the date when
the two cheques were issued, they had already resigned from
the post of directorship of the Company. During the pendency
of the complaint, the parties appeared to have arrived at some
compromise whereof, it was agreed that if a cheque of
Rs.5,02,050/- is issued, then the complaint would be
withdrawn. Pursuant thereto, a cheque of such amount dated
29.07.2000 was issued in favour of the complainant; however,
on presentation, it was returned with the remarks “insufficient
funds”. The complainant filed another complaint with regard
to return of cheque dated 29.07.2000 not only against the
erstwhile Directors but also against the present appellants. On
the above facts, the Apex Court held that the second cheque
dated 29.07.2000 was issued in terms of the compromise and it
did not create a new liability and therefore, the same cannot
be said to have been issued towards payment of debt, even if
the compromise had not fructified.
11.2 In the present case also, evidently, the cheque in
question was given as ‘security’ and not in respect of any
‘enforceable debt’, which the applicant No.1-Company was
required to pay to the respondent-complainant. In paragraph-1
of the complaint filed under Section 138 of the NI Act, the
respondent-complainant itself has stated that the cheque in
question has been given in view of the compromise arrived at
between the parties. Thus, as per the admission of the
complainant also, the cheque in question was not issued in
respect of any ‘enforceable debt’, which the applicant No.1-
Company was required to pay to the respondent-complainant.
Considering the aforesaid factual aspects and in view of the
principle laid down in Lalit Kumar Sharma’s case (supra), the
impugned proceedings initiated under the provisions of the NI
Act deserves to be quashed and set aside.
11.3 While disposing Special Civil Application No.7417 of 2016
vide order dated 18.11.2016, this Court had observed that the
executing Court shall pass appropriate orders for the refund of
cheque amounts realized while executing order dated
22.03.2016 and also order to return the unrealized cheques to
the applicants, if the applications Exhibits - 11 and 15 are
decided in favour of the applicants. Now when the order dated
20.08.2019 passed by the Court of learned Principal Senior
Civil Judge, Rajkot was quashed and set aside by the Division
Bench of this Court in Special Civil Application No.15137 of
2019, the holding of the cheque in question by the respondent-
complainant in connection with the proceedings under Section
138 of the NI Act would be illegal. Under the circumstances,
the respondent-complainant ought to have returned the cheque
in question to the applicant No.1-Company instead of
depositing the same. In the considered opinion of this Court, if
the proceedings under the N.I. Act are permitted to continue,
it would lead to gross miscarriage of justice and abuse of the
process of Court.
12. For the foregoing reasons, the application is allowed. The
impugned order dated 18.11.2019 passed by the Court of
learned 13th Additional Chief Judicial Magistrate, Rajkot below
Exhibit-1 in Criminal Case No.16873 of 2019 as also the
complaint filed by respondent No.2 under section 138 of the
NI Act being Criminal Case No.16873 of 2019 are quashed and
set aside. Rule is made absolute. In view of the above order,
both the civil applications stand disposed of.
After the judgment was pronounced, learned advocate
Mr. Nilesh Pandya for the respondent-complainant requested to
stay the operation of this judgment for a period of six weeks
in order to approach the higher forum. The said request is
accepted and hence, the operation of this judgment shall
remain stayed for a period of six weeks from today. It is
clarified that after the expiry of the above period, this
judgment shall come into operation or shall remain subject to
the orders that may be passed by the higher forum.
|
"It is a settled proposition of law that proceedings under Section 138 of the NI Act would lie only in respect of any 'enforceable debt'", the Gujarat High Court has observed today. The Bench comprising Justice Gita Gopi made this observation in connection with an application filed under Section 482 of CrPC, seeking the quashment of the order passed by the CJM Rajkot for offence...
"It is a settled proposition of law that proceedings under Section 138 of the NI Act would lie only in respect of any 'enforceable debt'", the Gujarat High Court has observed today. The Bench comprising Justice Gita Gopi made this observation in connection with an application filed under Section 482 of CrPC, seeking the quashment of the order passed by the CJM Rajkot for offence under Section 138 of the Negotiable Instruments Act.
Background
The Applicant-Company, an organisation engaged in manufacturing cast iron, had business relations with Respondent No. 2, a partnership firm. However, due to certain defects in the products supplied by Respondent No.2 to the Applicant-Company, the Company had to encounter returns from other industries and thereby suffered losses. Respondent No. 2 filed a summary suit against the Company for the recovery of INR 1,12,26,500 for the goods delivered per the Applicant-Company's order. The Civil Judge passed a decree in favour of the Respondent and directed the payment of the sum along with interest. Subsequently, the Applicant-Company filed the First Appeal, wherein the Division Bench of the Gujarat High Court granted interim relief but directed a deposit of INR 43,40,061 as security. The Company failed to make this deposit and consequently, Respondent No. 3 moved a Special Execution Petition at the civil court, as well. The Civil Judge issued a Warrant of Attachment against the Applicant-Company.
The Applicant contended that Respondent No. 3, armed with the Warrant Attachment, threatened to remove machineries, and disrupt the production process of the Applicant-Company. The Company, subsequently, granted 11 cheques to the Respondent, one of which was to be kept as security. However, on presenting this cheque worth INR 69,62,879 to the bank, it got returned and in response, the Respondent issued notice to the Applicant-Company under Section 138 of theNI Act. The Civil Judge passed an order directing issuance of process under Section 204 of CrPC. Being aggrieved of the same, the Applicant preferred the instant application.
Key Contentions
The Applicant-Company primarily contended that the process issued by the lower Court was contrary to the settled principles of law related to negotiable instruments since under Section 138, the disputed cheque should be 'enforceable debt'. However, the instant cheque was given as 'security', as evident from the Deed of Undertaking between the parties. Further averring that the Warrant of Attachment was void ab initio, the Applicant pointed out that the Warrant pertaining to those properties which were not within the jurisdiction of the Court.
Per contra, Respondent No. 2 argued that the cheque was issued in pursuance of the settlement agreement between the parties. Additionally, the execution proceedings and the proceedings under the NI Act were independent of each other. Hence, even if the Warrant issued in the execution proceedings was illegal, the proceedings under NI Act were sustainable in law. Significantly, the Company had committed default in payment which were not delivered by the Respondent-Complainant. The Respondent relied on Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited, (2016) 10 SCC 458 where it was held:
"Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence of the parties."of the parties.Whether the cheques were given as security or not, or whether there was outstanding liability or not is a question of fact which could have been determined only by the trial court after recording evidence
Judgement
The Bench while noting the facts and orders of the lower Courts, averred that that the Civil Court, Rajkot was not legally authorised to issue the Warrant, since the movable/immovable properties of the Company were not situated within its jurisdiction. This was in consonance with Section 39(4) of the CPC. Further, the orders passed by the Civil Court, Rajkot were quashed and set aside by the High Court which rendered the initiation of all proceedings, including the Warrant of Attachment and the execution of the Deed of Undertaking as baseless.
Regarding the NI Act, the Bench opined that the cheque was given as 'security'. Whereas Section 138 of the NI Act lies only in respect of 'enforceable debt' which was a settled proposition of law. To bolster this view, the Bench relied on Lalit Kumar Sharma v. State of Uttar Pradesh, 2008 (5) SCC 638, where the Apex Court had held that the cheque was issued in terms of compromise, and it did not create any new liability. Consequently, it could not have been issued towards payment of debt, even if the compromise had not fructified.
Justice Gopi opined that Respondent No. 3 ought to have returned the cheque to the Applicant-Company instead of depositing the same. The proceedings under NI Act were gross miscarriage of justice and abuse of the process of Court. Accordingly, the application was allowed. The Bench set aside the criminal case against the Applicant-Company.
Case Title: C.M. Smith And Sons. Ltd Through Deinesh Mohanlal Panchal Versus State Of GujaratCase citation: [ (Guj) 30]
Case No.: R/CR.MA/3246/2020
|
Civil Appeal No. 6 of 1976.
From the Judgment and Order dated 12.11.1973 of the Madras High Court in Writ Appeal No. 390 of 1969.
V.C. Mahajan, C.V. Subba Rao and K.M.M. Khan for the Appellants K.N. Bhat and Vineet Kumar for the Respondent.
PG NO 1053 The Judgment of the Court was delivered by SHARMA, J.
This appeal arises out of a writ application allowed by the Madras High Court striking down Clause (a) of the Proviso (3) of the Notification dated the 1st March, 1964 issued by the Union of India in the Ministry of Finance, under Rule 8(1) of the Central Excise Rules, 1944 and granting consequential relief.
The aforesaid notification granted certain exemptions from payment of excise duty, but the benefit was denied to the writ petitioner, respondent before this Court, in view of the impugned clause.
The respondent assessee, a business concern functioning under the name of M/s. Dhanalakshmi Paper and Board Mills, decided to set up a factory for the manufacture of paper and paper boards and allied products, and obtained a lease of certain premises in June 1963 and put up a suitable structure for the factory by August 1963.
The necessary machineries for running the factory, however, were received in April 1964 and application for licence therefor was filed on 27.4.1964.
The licence was granted on 6.5.1964 and production in the factory started the next day, i.e. 7.5.1964.
The respondent claimed that the duty in respect of the paper boards manunactured in the factory during the period 7.5.1964 to June 1966 was payable at the concessional rate allowed by the Notification, relevant portion whereof reads as follows: GOVERNMENT OF lNDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) NEW DELHI,THE 1ST MARCH, 1964/PHALGUNA 11, 1885 (SAKA) NOTIFICATION CENTRAL EXCISE CSR: In exercise of the powers conferred by Sub rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 57/60 Central Excise dated 20th April.
196() and No. 37/63 Central Excise dated the 1st March, 1963 the Central Govt.
hereby exempts strawboard and pulpboard including, greboard, calling under Sub item (3) of Item No. 17 of the First PG NO 1054 Schedule to the (1 of 1944), takes together up to the quantity prescribed in column (1) of Table 1 (omitted), cleared by any manufacturer for home consumption during any financial year, from so much of the leviable thereon as is in excess of the amount specified in the corresponding entry in column (2) of the same Table: TABLE 1 (being not relevant, omitted) Provided that (1). . . . . . (2) . . . . . . .
TABLE 2 (being not relevant, omitted) (3) nothing contained in this notification shall apply to a manufacturer who applied or applies for a licence on or after the 9th day of November 1963, unless he satisfies the Collector of Central Excise (a) that the factory for which the licence was or is applied for was owned on the 9th day of November, 1963, by the applicant;" The benefit of the Notification claimed by the respondent assessee was denied by the appellants on the ground that the factory did not come into existence on or before the 9th day of November, 1963, the date mentioned in the impugned clause (a).
The respondent moved the High Court in its writ jurisdiction under Article 226 of the Constitution, and the application was allowed by a learned Single Judge.
An appeal therefrom under Clause 15 of the Letters Patent was dismissed in limine.
The appellants have by special leave challenged the decision before this Court.
The ground urged on behalf of the assessee which found favour with the High Court is arbitrary nature of the date, '9th of November, 1963 ' mentioned in the impugned clause (a).
It has been contended that the said date does not have any significance whatsoever and does not bear any rational relationship to the object sought to be achieved by the Notification.
The learned counsel for the appellant defended the validity of the impugned provision on the ground that the date (9.11.1963) was selected because an PG NO 1055 earlier notification bearing No. 110 had required applications to be made on or after 9.11.1963.
This notification is not on the records of the case and the learned counsel has stated th8t he has also not been able to examine the same inspite of his unsuccessful request to the Department concerned for a copy thereof.
He has mentioned about this notification in his argument on the basis of the reference in the judgment of the High Court.
The High Court judgment does not throw any light on the nature of the notification No. 110, and the learned counsel could not draw any inference about its provisions from the judgment.
It is not claimed that the said notification was before the High Court or the Judges had any occasion to examine it.
The present appeal was filed in 1976 and even now the learned counsel for the appellants is not in a position either to produce it or to tell us what it was about.
The result is that no explanation for the choice of the date in clause (a) is forthcoming.
Sri V.C. Mahajan, learned counsel for the appellants, contended that a statutory provision has necessarily to be arbitrary in the choice of date and it cannot be challenged on that ground.
He relied upon the observations of this Court in Union of India vs M/s Parmeswaran Match Works etc., 119751 2 SCR 573 (at page 578) as quoted below: "To achieve that purpose, the Government chose September 4, 1967, as the date before which the declaration should be filed.
There can be no doubt that any date chosen for the purpose would to a certain extent, be arbitrary.
That is inevitable" Reliance was also placed on Jagdish Pandey vs The Chancellor, University of Bihar and Another, and U.P.M. T.S.N.A. Samiti, Varanasi vs S ate of U. P. and Others, We are afraid, the argument has no merit and has to be rejected.
In Union of India vs M/s P. Match Works, (supra) the question related to concessional rate of excise duty leviable on the manufacture of match boxes.
Match factories were classified on the basis of their output during the financial year and matches produced in different categories of factories were subject to varying rates of dutyhigher rate being levied on matches produced in factories having higher output.
In pursuance of a change in the policy, the match factories were later classified as mechanised units and non mechanised units and by a notification dated July ' PG NO 1056 l, 1967 a concessional rate of duty was allowed in respect of units certified according to the provisions therein.
The notification also contained a proviso.
The purpose of these provisions was to grant the benefit of concessional rate of duty only to small manufacturers.
This Court while analysing the notification observed that the proviso "would have defeated the very purpose of the notification, namely, the grant of concessional rate of duty only to small manufacturers".
In order to cure this self defeating position, the notification dated July 21, 1967 was amended by Notification No. 205 of 1967 dated September 4, 1967.
The latter notification mentioned the 4th September, 1967 as the cut off date.
The attach on the choice of this date was met by the observations relied upon by the learned counsel for the appellants and quoted earlier.
It will be observed that the date, September 4, 1967, was the date on which the amending Notification itself was issued.
The crucial date, therefore, could not be condemned as one "taken from a hat ' .
It was the date of the notification itself.
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical.
In cases where choice of date is not material for the object to be achieved, the provisions are generally made prospective in operation.
In that sense this Court observed in M/s P. Match Works case that the date chosen would to a certain extent be arbitrary and this was inevitable.
In the present case the relevant Notification was dated March 1, l964 and not 9.11.1963.
It is true that as mentioned in the High Court judgment some other notification required applications referred therein to be made on or after ',h 11.1963, but unless the nature and contents of that notification and its relevance with reference to the present notification are indicated, it is futile to try to defend the choice of the date on its basis.
The appellants have miserably failed to do so.
inspite of more than a decade available to them 6.
The other two cases relied upon On behalf of the appellants instead of supporting their case.
indicate that the view taken by the High Court is correct in U.P.P.M.T.S.N.A. Samiti,Varanasi vs State of U.P. and Others (supra) this Court observed in paragraph l of the judgment: "The legislature could not arbitrarily adopt January 1984, as the cut off date . " After examining the circumstances of the case it was held in paragraph 2: "We agree with the High Court that fixation of the date January 3 1984 for purposes of regularisation was not arbitrary or irrational but had a reasonable nexus with the object sought to be achieved.
" PG NO 1057 Similarly in Jagdish Pandey vs The Chancellor, University of Bihar and Another it was held: "There is no doubt that if the dates are arbitrary, section 4 would be violative of article 14 for then there would be no justification for singling out a class of teachers who were appointed or dismissed etc.
between these dates and applying s.4 to them while the rest would be out of the purview of that section .
The Court then proceeded to examine the purpose of the legislation and the attendant circumstances and upheld the section 7.
Another learned counsel who appeared on behalf of the appellants for the final reply placed reliance on paragraphs 38, 44 and 45 of the judgment in Dr. Sushma Sharma and Others vs State of RaJasthan and Others, [1985] SUPP.
SCC 45.
In paragraph 38 it was said that wisdom or lack of wisdom in the action of Government or Legislature is not justiciable by the Court, and to find fault with the law is not to demonstrate its invalidity.
We are afraid, this aspect is wholly irrelevant in the case before us.
In paragraph 44, the Case of Union of India vs M/s. P. Match Works Ltd., already discussed above.
was mentioned.
In paragraph 45 the case of D.S.Nakara vs Union of India, [1983] I SCC 305, was distinguished in the following words: "But as we have mentioned hereinbefore, Nakara case dealt with the problem of benefit to all pensioners.
The choice of the date of April l. 1979 had no nexus with the purpose and object of the Act.
The facts in the instant case are, however, different." In the present case also benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause (a) of Proviso (3) the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification, and the benefit of one class was withdrawn while retaining it in favour of the other.
It must, therefore, be held that the impugned clause (a) of the Proviso (3) of the Notification in question is ultra vires and the benefit allowed by Notification is available to the entire group including the respondent.
We, therefore, hold, There is no merit in this appeal which is dismissed without costs.
R.S.S. Appeal dismissed.
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The respondent assessee built up a factory for the manufacture of paper and paper boards, which started production on 7.5.1964.
The respondent claimed that the duty in respect of the paper boards manufactured in the factory during the period 7.5.1964 to June 1966 was payable at the concessional rates allowed by the Government of India notification dated 1st March, 1964.
The claim was however rejected by the Revenue on the ground that the factory had not come into existence on or before the 9th day of November, 1963 as stipulated in clause (a) of Proviso (3) of the said notification.
The respondent 's writ application before the High Court was allowed by the Single Judge and the appellant 's Letters Patent appeal was dismissed in limine.
The High Court has accepted the respondent 's contention that the date '9th of November, 1963 ' mentioned in the notification was arbitrary.
On behalf of the Revenue it was contended that the date (9.11.1963) was selected because an earlier notification bearing No. 110 had required applications to be made on or after 9.11.1963.
It was further contended that a statutory provision had necessarily to be arbitrary in the choice of date and it could not be challenged on that ground.
On behalf of the respondent it was contended that the said date did not have any significance whatsoever and did not bear any rational relationship to the object sought to be achieved by the notification.
PG NO 1051 PG NO 1052 Dismissing the appeal, it was HELD: 1.
A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical.
[1056D] 2.
In cases where choice of the date is not material for the object to be achieved.
the provisions are generally made prospective in operation.
[1056D] 3.
The Revenue has not been able to produce notification No. l 10.
Unless the nature and contents of notification No. 110 and its relevance with reference to the present notification are indicated, it is futile to try to defend of the choice of the date in clause (a) on its basis.
[1055A;1056E] 4.
In the present case, the benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause (a) of Proviso (3) the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification.
[1057F] 5.
Clause (a) of the Proviso (3) of the Notification was ultra vires and the benefit allowed by the Notification would be available to the entire group including the respondent.
[1057G] Union of India vs M/s. P. Match Works [1975]2 SCR 573 Jagdish pandey vs The chancellor, University of Bihar.
[19681 I SCR 237 and U.P. M. T.
S.N.A. Samiti, Varanasi vs State of U.P.,[1987]2 SCR 453, distinguished.
Dr .Sushma Sharma vs State of Rajasthan, [1985] Supp.
SCC 45; and D.S. Nakara vs Union of lndia, [1983] I SCC 365 referred to.
|
ivil Appeal Nos.
953 954 (NT)/ 1975.
From the Judgment and order dated the 15th February 1974 of the High Court of Allahabad in Civil Misc.
Writ Petitions Nos. 6904 and 6906 of 1973.
S.C. Manchanda and A.K. Srivastava for the Appellants.
Harish N. Salve, Mrs. A.K. Verma, J. Peres and D.N. Mishra for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are two appeals by certificate from the common order.
dated 15.2.74, of the Allahabad High Court in Civil Miscellaneous Petition Nos.
6904 and 6906 of 1973.
They can be disposed of together since the question raised is the same.
This common question arises out of the assessment to central sales tax of the respondent, oriental Coal Corporation of Moradabad (hereinafter referred to as the assessee), for the assessment year 1967 68 and 196869.
The relevant facts bearing on the controversy may be briefly stated.
The assessee is a firm of coal merchants with its place of business in Jharia (Bihar State) and an office at Moradabad (in U.P.).
It is not registered either under the Central or the State Sales Tax Act.
According to the assessee it places orders for coal on the collieries at Jharia on behalf of constituents in Uttar Pradesh, realises the sale proceeds and remits the same to Jharia.
The Sales Tax officer assessed the assessee to sales tax in respect of the turnover of the coal thus 565 supplied by the assessee.
The assessee filed two writ petitions alleging that the assessment orders were without jurisdiction on several grounds.
The High Court allowed the writ petitions on one of these grounds and hence did not go into the other contentions.
It referred to section 9 of the , as it stood at the relevant time, and held that the provision cast a liability to tax only on a registered dealer and not an unregistered dealer like the assessee.
It is the correctness of this decision that is challenged in the present appeals.
Section 9 relied upon by the High Court, reads thus: 3.
"9.(1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter state trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of subsection (2), in the State from which the movement of the goods commenced.
Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within subsection (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form prescribed for the purpose of clause (a) of subsection (4) of section 8 in connection with the purchase of such goods.
(2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re assess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the Provisions of such law, including provi 566 sions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of or successor to such business transfer of liability of any fir n or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appe als, reviews, revisions, references, 3(refunds, rebates, penal ties) compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub section.
" The High Court pointed out that, under the terms of the section, tax on sales of goods effected by a dealer in the course of inter state trade or commerce shall be levied in the State from which the movement of the goods commenced: in this case, the State of Bihar.
The proviso, however, carves out an exception.
It provides that, if there is a subseq uent sale of the same goods in the course of their movement from one State to another and such sale is effected by a registered dealer, tax can be levied and collected in the State from which such dealer obtained or could have obtained the forms prescribed under section 8(4)(a) (popularly known as 'the Form '): in this case, the State of Uttar Pradesh.
But, the High Court pointed out, the assessee was not a registered dealer and so there was no scope for his being taxed in the State of U.P.
The High Court accordingly quashed the assessments in question and hence these appeals by the State.
We may at once say that the conclusion of the High Court is unassailable in view of the decision of this Court in State vs Kasturi Lal Harlal, 3 S.C. 234 affirming the view taken on this issue by the Allahabad High Court in an earlier case Kasturilal Harlal vs State, [1972] 29 STC 495.
Shri Manchanda, however, submits that this view can no longer hold the field in view of a retrospective amendment of the by the Central Sales Tax (Amendment) Act No. 103 of 1976.
Two provisions of this Amendment Act may be extracted: "6.
Amendment of section 9.
In section 9 of the Principal Act (a) in sub section (1) for proviso, the following pro 567 viso shall be substituted, namely.
A "Provided that, in the case of sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub section (2) of section 6, the tax shall be levied and collected (a) where such subsequent sale has been effected by a registered dealer, in the State from which the registered dealer obtained or, as the case may be could have obtained, the form prescribed for the purposes of clause (a) of subsection (4) of section 8 in connection with the purchase of such goods, and (b) where such subsequent sale has been effected by an unregistered dealer in the State from which such subsequent sale has been effected." (b) in sub section (2), before the words "compounding of offences", the words "charging or payment of interest", shall be inserted and shall be deemed always to have been inserted .
(c) after sub section (2), the following sub section shall be inserted, namely: (2A) All the provisions relating to offences and penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in sections 10 and lOA) of the general sales tax law of each State shall, with necessary modifications, apply in relation to the assessment, reassessment, collection and the enforcement, of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assessment, re assessment, collection or enforcement of payment as if the tax under this Act were a tax under such sales tax law.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 568 9.
Validation ( 1) The provisions of section 9 of the principal Act shall have effect and shall be deemed always to have had effect in relation to the period commencing on the 5th day of January, 1957, and ending with the date immediately preceding the date of commencement of this Act as if that section also provided (a) that all the provisions relating to penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment on conviction for an offence but excluding the provisions relating to matters provided for in sections 10 and 10A of the principal Act and the provisions relating to offences) of the general sales tax law of each State shall, with necessary modifications, apply in relation to (i) the assessment, re assessment, collection and enforcement or payment of any tax required to be collected under the principal Act in such State; and (ii) any process connected with such assessment, re assessment, collection or enforcement of payment, and (b) that for the purpose of the application of the provisions of such law, the tax under the principal Act shall be deemed to be tax under such law.
(2) Notwithstanding anything contained in any judgment, decree or order of any court or tribunal or other authority, all penalties under the general sales tax law of any State imposed or purporting to have been imposed in pursuance of the provisions of section 9 of the principal Act, and all proceedings, acts or things taken or done for the purpose of, or in relation to, the imposition or collection of such penalties, before the commencement of this Act shall, for all purposes be deemed to be and to have always been imposed, taken or done as validly and effectively as if the provisions of sub section (1) had been in force when such penalties were imposed or proceedings or acts or things were taken or done and accordingly, (a) no suit or other proceedings shall be maintained or continued in or before any court or any tribunal or other 569 authority for the refund of any amount received or realised by way of such penalty; (b) no court, tribunal or other authority shall enforce any decree or order directing the refund of any amount received or realised by way of such penalty; (c) where any amount which had been received or realised by way of such penalty had been refunded before the commencement of this Act and such refund would not have been allowed if the provisions of sub section (1) had been in force or the date on which the order for such refund was passed, the amount so refunded may be recovered as an arrear of tax under the principal Act; (d) any proceeding, act or thing which could have been validly taken, continued or done for the imposition of such penalty at any time before the commencement of this Act if the provisions of sub section (1) had then been in force but which had not been taken continued or done, may after such commencement be taken, continued or done.
(3) Nothing in sub section (2) shall be construed as preventing any Person (a) from questioning the imposition or collection of any penalty or any proceedings, act or thing in connection, therewith or (b) from claiming any refund, in accordance with the provisions of the principal Act read with sub section(1).
" Shri Manchanda contends that, by virtue of section 9 of the Amendment Act, clause (b) of the proviso to section 9 (1) of the is deemed to have been in force since 5.1.1957.
The position according to him, therefore, is as if the Act had always imposed a liability to pay tax even on unregistered dealers just as it had originally done on registered dealers.
We may mention that, while deciding section T. O. vs Coal & Coke Supplies Corporation, JT , we had assumed the correctness of the contention of Sri Manchanda as, in that case, the above argument that the amendment was retrospective was uncontroverted.
570 Sri Harish Salve, appearing for the assessee in this case, however, contests the correctness of Sri Manchanda 's contention.
We have therefore considered this aspect and reached the conclusion that Sri Salve is right and that no retrospective operation to clause (b) of section 9(1) can be spelt out as suggested by counsel for the appellant.
received the assent of the President on 7.9.1976 which is, apparently, what is referred to as the date of its commencement in section 9(1) of the said Act.
The Act amended several sections of the and it did not when its words when it desired to give any degree of retrospective effect to any particular amendment.
The amendments to sections 3 and 4 of the Principal Act thus are clearly retrospective: the provisions added thereto, it is declared, "shall be inserted and shall always be deemed to have been inserted w.e.f. 1.4.1964.
" The amendments to Sections 2, 7, 14 and IS of the Principal Act are obviously intended to be only prospective.
The amendment to section 9 of the Principal Act, with which we are at present concerned, presents an amalgam.
section 6 of the Amending Act makes three amendments in section 9 of the Principal Act by its three clauses (a), (b) and (c).
In clause (a), there is no hint of any retrospectivity whereas the amendment by clause (b) is expressed to be fully retrospective from 1956.
The amendment by clause (b) attracts the penal provisions (including offences) of the relevant State Law and can, in view of Article 20 of the Constitution, only be prospective.
However, it appears that, even under the statute as originally framed, such penal provisions had been enforced in several cases and this action needed retrospective validation (in so far as penalties, other than offences were concerned) in view of the decision of this Court in Khemka vs State, ; This was the raison d 'etre of section 9 of the Amendment Act which has been extracted above: (see Shiv Dutt Rai vs Union, [ ; This is also clear from paragraph 3 of the Statement of objects and Reasons of the Amendment Act, which reads: "Sub section (2) of section 9 of the empowers the State sales tax authorities to assess, re assess collect and enforce payment of Central sales tax.
The sub section also authorises the authorities under the State sales tax laws to exercise all the powers which they have under those laws (including inter alia the power to impose penalties) for the purposes of the also.
In Khemka & Co. (Agencies) Private Ltd. vs State of Maharashtra, 35 S.T.C. 57 1, the Supreme Court, by a ma 571 jority of 3:2, held that the provisions of the State sales tax laws as to penalties do not apply for purposes of the Central Sales Tax.
In view of this judgment, the State Governments are faced with the problem of having to refund the amounts collected in the past by way of penalties.
The judgment has also resulted in a vacuum being created in regard to levy of penalties, it is, therefore, necessary to amend section 9 of the to provide expressly that the provisions relating to offences and penalties under the general sales tax law of each State shall.
with necessary modifications, apply in relation to the assessment, re assessment collection and the enforcement of tax under the .
It is also necessary to validate the penalties which have been levied in the past.
for the purposes of the , on the basis of the provisions of the State sales tax laws.
" Where the statute thus, on its face, clearly indicates retrospective effect where intended, there can be no justification to read retrospectivity into the amendment made by clause (a) of section 6 of the amending Act which does not contain any words to that effect.
Counsel for the appellant, however, relied on two circunstances to say that such retrospective effect must necessarily have been intended.
Firstly, he placed emphasis (a) on the fact that section 9( l) of the Amendment Act refers to section 9 of the principal Act and not merely to section 9(2) and (b) on the use of the words"as if that section also provided." He submitted that this language can only mean that the legislature intended retrospective effect also to the amendment effected in section 9 by section 6 of the Validation Act.
Secondly, he submitted that under section 6 of the Central Sales Act, all dealers registered or unregistered, are liable to pay tax on sales effected by them in the course of inter state trade or commerce.
section 9(1) imposes the liability on the dealer in the State from which the movement of the goods commences but this is without prejudice to the liability of dealers who make subsequent sales during the course of such movement.
Such subsequent sale may be by a registered dealer or an unregistered dealer.
It may be to a registered or an unregistered dealer.
If the sale is to a registered dealer it is exempt under section 6(2), whether it is by a registered dealer or an unregistered dealer.
Under the proviso to section 9(1), as it originally stood, if the sale was by registered dealer to an unregistered dealer, it would be taxed in the State from which the registered dealer obtained or could have obtained the Forms.
When 572 even a sale by a registered dealer is thus made liable, counsel argues, it A could not have been the intention of the State to exempt from liability a sale by an unregistered dealer.
The amendment only clarifies this position.
It imposes no fresh substantive liability.
It is only an amendment of a procedural nature shifting chargeability, in such cases, from the State from which the goods moves, to the State in which the subsequent sale takes place.
In this view of the matter, counsel contends the amendment only affects the venue of taxation and, being procedural in nature, requires to be construed retrospectively.
We are unable to accept these contentions.
So far as the first point is concerned, the language of the validation section clearly concerns only penalties which are dealt with under section 9(2).
The amending Act refers to section 9 in general and not to section 9(2) only perhaps because section 9( l) also contains a reference to sub section (2).
From this circumstance alone, it cannot be inferred that retrospectivity to the amendment of section 9(1) also is intended.
The use of the word 'also ' does not also have the result suggested by counsel.
All that the provision requires is that, for the period 5.1.57 to 7.9.1976, the section is to be read as if it also included the additional substantive provisions referred to therein.
It was earlier not clear whether all these provisions could be read into the section before 7.9.1976, the date when the Amendment Act came into force.
So the validation section declares that the section should be read, even earlier, as if it comprehended also these substantive provisions.
It is in this context that the word "also" is used.
The employment of this word cannot therefore be treated as an indication of intention by the legislature that the amendment ot section 9(1) by section 6 of the amending Act was to be effective from 5.1.1957.
If the Legislature had intended it, the intention could and would have been expressed clearly in clause (a) of section 6 itself as it had been in the other clauses .
and in the other sections.
If section 9(1) of the Amendment Act had been inserted as clause (d) in section 6 thereof, it could not have changed the prospective effect of clause (a).
The position is not different merely because this provision is contained in section 9 and not section 6 of the Amendment Act.
section 9(1) of the Amendment Act talks only of reading these extra words into section 9(1) of the principal Act between 5.1.57 and 7.9.76.
It does not contain any operative words that require section 9(1) of the Principal Act being read in the form in which it has been amended by section 6 during that earlier period.
We, therefore, do not see in section 9 of the Amending Act any support to the contention of the counsel for the appellant.
The contention that the amendment is purely procedural is 573 also misconceived.
Assuming the correctness of the contention that a A purely procedural amendment should ordinarily be construed to be retrospective, we are unable to agree that the present amendment is of such nature.
The decision of this Court in Kasturi Lal 's case, 4JT had held that an unregistered dealer is not taxable under the proviso.
The amendment changes this position and imposes a substantive liability on such a dealer.
It is also one which confers jurisdiction on an officer in a particular State to levy a tax which he otherwise cannot.
It is thus a substantive provision.
That apart, even the question whether a charge to tax can be imposed in one State or another is not a mere question of venue.
It may have an impact on the rate of tax in certain cases and it also regulates the rights inter se of States to levy taxes on such inter state sales.
It is, therefore, difficult to accept the contention that the amendment should be treated as purely procedural and hence necessarily retrospective.
In the result, we are of opinion that clause (b) of section 9(1) of the is operative only from 7.9.1976.
The present case is, therefore, governed by the earlier provision and the decision of this Court in Kasturi Lal 's case, (supra).
The appeals therefore, fail and are dismissed.
We, however, make no order as to costs.
N.P.V. Appeals dismissed.
|
% The respondent, an unregistered firm of coal merchants with its place of business in Bihar and an office in U.P., was assessed to sales tax by the first appellant in respect of the turnover of coal supplied by the respondent assessee for the assessment years 1967 68 and 1968 69.
The assessee filed writ petitions alleging that the assessment orders were without jurisdiction on several grounds.
The High Court allowed the writ petitions holding that section 9 of the as it stood at the relevant time cast a liability to tax only on a 'registered dealer ' and not an 'unregistered dealer '.
In the appeals it was contended on behalf of the Department that by virtue of section 9 of the Central Sales Tax (Amendment) Act, 1976, cl.
(b) of the proviso to section 9(1) of the was deemed to have been in force since 5.1.57 and, therefore, the position was as if the Act had always imposed a liability to pay tax even on unregistered dealers just as it had originally done on registered dealers, and that the amendment only affected the venue of taxation, and being procedural in nature, it was required to be construed retrospectively, Dismissing the appeals, ^ HELD: 1.
Clause (b) of section 9(1) of the is operative only from 7.9.76.
[573] The instant case is, therefore, governed by the earlier provision, and the respondent assessee being an unregistered dealer is not liable to pay tax.
[573D] State vs Kasturi Lal Har Lal, [1987] 67 STC 154 SC, relied on.
563 2.1 Where the statute, Central Sales Tax (Amendment) Act, 1976, on its face, clearly indicates retrospective effect where intended, there can be no justification to read retrospectivity into the amendment made by cl.
(c) of section /6 of the Amending Act, which does not contain any words to that effect.
[571D] 2.2 The language of the validation section clearly concerns only penalties which are dealt with under section 9(2).
The amending Act refers to section 9 in general and not to section 9(2) only because section 9(1) also contains a reference to sub section (2).
From this circumstance alone it cannot be inferred that retrospectivity to the amendment of section 9(1) also is intended.
[572C D] 2.3 The employment of word "also" cannot be treated as an indication of intention by the Legislature that the amendment of section 9(1) by section 6 of the Amending Act was to be effective from 5.1.57.
If the Legislature had intended it, the intention could and would have been expressed clearly in cl.
(a) of section 6 itself as it had been in the other clauses and in the other sections.
If section 9(1) of the Amendment Act had been inserted as cl.
(d) in section 6 thereof, it could not have changed the prospective effect of cl.
The position is not different merely because this provision is contained in section 9 and not section 6 of the Amendment Act.
Section 9(1) of the Amendment Act talks only of reading these extra words into section 9(1) of the Principal Act between 5.1.57 and 7.9.76.
It does not contain any operative words that require section 9(1) of the Principal Act being read in the form in which it has been amended by section 6 during that earlier period.
[572E G] All that the provision requires is that for the period 5.1.57 to 7.9.76, the section is to be read as if it also included the additional substantive provisions referred to therein.
It was earlier not clear whether all these provisions could be read into the section before 7.9.76, the date when the amendment Act came into force.
So, the validation section declares that the section should be read, even earlier, as if it comprehended also these substantive provisions.
It is in this context that the word "also" is used.
[572D E] 2.4 The question whether a charge to tax can be imposed in one State or another is not a mere question of venue.
It may have an impact on the rate of tax in certain cases and it also regulates the rights inter se of States to levy taxes on such inter state sales.
[573B C] The amendment changes the position that an unregistered dealer 564 is not taxable under the proviso and imposes a substantive liability on such a dealer.
It is also one which confers jurisdiction on an officer in a particular State to levy a tax which he otherwise cannot.
It is thus a substantive provision.
[573B] The amendment cannot, therefore, be treated as purely procedural and hence necessarily retrospective.
[573C] S.T.O. vs Coal & Coke Supplies Corporation JT, [19871 4 S.C. 472; Khemka vs State, ; and Shiv Dutt Rai vs Union, 119831 3 S.C.C. 529 referred to.
|
For the convenience of the exposition, this judgement is divided in the following
parts: -
i) Notification dated 27.10.2021 constituting the Selection Committe e ... 5
ii) Notification dated 01.11.2021 inviting applications for selection of
iii) Letter of the Minister for Higher Education / Pro-Chancellor dated
22.11.2021 recommending reappointment of the Respondent No. 4 .... 7
iv) Notification dated 22.11.2021 withdrawing the Notification dated
01.11.2021 inviting applications from the elligible candidates ............ 9
v) Letter of the Minister for Higher Education / Pro-Chancellor
B. Relevant observations made by the Ld. Single Judge ....................... 11
C. Relevant observations made by the Division Bench in Appeal ........ 13
E. Submissions on behalf of Respondent No. 2 - State of Keral a ......... 21
F. Submissions on behalf of Respondent No. 3 - Kannur University ... 26
G. Submissions on behalf of Respondent No. 4 - Vice-Chancellor ........ 28
H. Submissions on behalf of Respondent No. 1 - Chancellor ………… 29
I. Relevant Provisions of the Kannur University Act, 1996 and the
i) Whether reappointment is permissible in respect of a Tenure Post? .... 46
ii) Whether the outer -age limit stipulated under sub -section (9) of
Section 10 of the Act 1996 is applicable in the case of reappointment
iii) Whether the reappointment of Vice-Chancellor has to follow the same
process as a fresh appointment under Section 10 of the Act 1996? ..... 54
iv) Did the Chancellor abdicate or surrender his statutory power of
" 'Intention of the Legislature' is a common but very slippery phrase, which,
popularly understood, may signify anything from intention embodied in positive
enactment to speculative opinion as to what the Legislature probably would have
meant, although there has been an omission to enact it. In a Court of Law or
Equity, what the Legislature intended to be done or not to be done can only be
legitimately ascertained from that which it has chosen to enact, eit her in express
words or by reasonable and necessary implication ."
[Lord Watson in Salomon v. Saloman & Co., (1897) AC 22, 38]
1. We are tempted to preface our judgment with the aforesaid observations of
Lord Watson in Soloman (supra) , as we need to keep in mind the principle of law
as explained therein for the purpose of interpretation of Section 10( 9) and Section
10(10) respectively of the Kannur University Act, 1996 (for short, “the Act
1996 ”). In other words, the object or the intention behind enacting the two
provisions referred to above.
2. This appeal is at the instance of two unsuccessful original writ petitioners
before the High Court. The appellant No. 1 herein in his capacity as the elected
member of the Senate of Kannur University and the appellant No. 2 herein in his
capacity as the member of the Academic Council of the said University together
questioned the legality and validity of reappointment of the respondent No. 4
herein, namely, Dr. Gopinath Ravindran as the Vice -Chancellor of the Kannur
University by filing Writ Petition (C) No. 26975 of 2021 in the High Court of
Kerala , primarily on the ground that the respondent No. 4 was not eligible for
reappointment as the Vice -Chancellor of the Kannur University. The writ
application referred to above came to be rejected by the learned Single Judge of
the High Court vide the judgment and order dated 15.12.202 1. The judgment
rendered by the learned Single Judge of the High Court was challenged before a
Division Bench of the High Court by filing the Writ Appeal No. 1698 of 2021.
The challenge in the appeal also failed . The Division bench dismissed the appeal
vide the judgment and order dated 23.02.2022 thereby affirming the judgment and
order passed by the learned Single Judge declining to issue a writ of Quo
Warranto.
3. The facts are jejune. The respondent No. 4 herein was appointed as the
Vice -Chancellor of the Kannur University vide the Notification dated 24.11.2017
duly issued by the Chancellor of the Kannur University. The tenure of the
respondent No. 4 as the Vice -Chancellor was for a period of four years. As the
tenure of the respondent No. 4 as the Vice -Chancellor of the University was
coming to an end , the Chancellor initiated steps for selection and appointment of
a new Vice -Chancel lor in the said University. The first step in the said process
was the issue of a Notification dated 27.10.2021 constituting a Selection
Committee of three members. The Notification dated 27.10.2021 reads thus:
i) Notification dated 27.10. 2021 constituting the Selection Committee
“No.G53 1283/2021 Governors Secretariat
Kerala Raj Bhavan
Thiruvananthapuram
27th October 2021
In exercise of the powers conferred under Section 10, read with sub
sections (1)(2) and (3) of the Kannur University Act, 1996, the
Chancellor of the University is pleased to constitute a Selection
Committee comprising of the following members to make
recommendation (s) towards the selection and appointment of a new
Vice Chancellor in the said University.
1. Dr. B. Ekbal - (Nominee of the University Senate)
(Former Vice Chancellor, University of Kerala and former Member,
State Planning Board)
2. Prof. B. Thimme Gowda - (Nominee of the University Grants
Commission)
Vice Chairman, Karnataka State Higher Education Council
(Former Vice Chancellor, Bangalore University & Karnataka State
Rural Development and Panchayat Raj University
3. Prof. VK Ramachandran (Nominee of the Chancellor)
Vice Chairperson, Kerala State Planning Board
(Former HoD, Economic Analysis Unit, Indian Statistical Institute,
Bengaluru)
I, Prof. VK Ramachandran shall be the Convener of the Committee
and the Committee shall tender its recommendation within three
months from the date of this order as laid down in sub section (4),
Section 10 of the Kannur University Act, 1996.
By Order of the Governor/Chancellor
(Dr. Devendra Kumar Dhodawat, IAS)
Principal Secretary to Governor/Chancellor ”
4. Thereafter , Notification dated 01.11.2021 was issued by the Additional
Chief Secretary, High er Education, State of Kerala inviting applications from
eligible candidates. The Notification dated 01.11.2021 reads thus:
ii) Notification dated 01.11. 2021 inviting applications for selection of Vice -Cha ncellor
“B2/88/2021/H. E DN Dated: 1.11.2021
In exercise of the powers conferred by Section 19(1) (2) and (3) of the
Kannur University Act,1996, the Chancellor, Kannur University has
constituted a Selection Committee to make recommendations for the
appointment of a new Vice Chancellor, in the Kannur University.
Applications are invited by the Selection Committee for the selection
of Vice Chancellor, Kannur University from eligible candidates. The
qualification and experience are as prescribed in Clause 7.3(i) of the
UGC notification dated 18.7.2018. Applicants should not have
completed sixty years of age as on the date of notification, as provided
in section 10 of Kannur University Act, 1996.
Applications in hard copy and soft copy (by e mail only) with bio data,
proof of experience, qualifications etc., in the attached format should
reach the Additional Chief Secretary to Government, Higher
Education Department, Government Secretariat, Annexe II. Fourth
Floor, Thiruvananthapuram - 695001 and
highereducationbdepartment@gmail.com on or before 5 PM on
30.11.2021.
Additional Chief Secretary
High er Education , Environment
Archaeology, Archives & Museum Departments. ”
5. It appears that in the meantime, the Minister for High er Education and
Social Justice in h er capacity as the Pro -Chancellor addressed a letter to the
Governor/Chancellor dated 22.11.2021 recommending reappointment of the
respondent No. 4 herein for a second term as the Vice -Chancellor of the
University. The letter dated 22.11.2021 reads thus:
iii) Letter of Pro -Cha ncellor dated 22.11. 2021 re comme nding re -appointment of the Re spondent No. 4
Honourable Governor,
Kind attention of Honourable Governor is invited to the fact that the
term of office of Ex. Vice Chancellor of Kannur University is ending
on November 23,2021 Notification for the selection of new Vice
Chancellor was issued on November 1 .2021.
Dr. Gopinath Raveendran is currently holding the post of Vice
Chancellor. He is an eminent academician and able administrator. He
has ushered the University to greater heights. A learned professor
with an excellent academic record, he was Professor of History of
Jamia Millia Islamia, Delhi. He has also been Academic Visitor, Dept.
of Social Police, London School of Economics and Political Science
and has administrative experience as Honorary Director, Nelson
Mandela Centre for Peace and Conflict Resolution, Jamia Millia
Islamia and as Member secretary, ICHR. He has indeed been an asset
to Kannur University, an institution still in its infancy.
The remarkable achievements of the university in academic rating is
the result of the hard work put in by the faculty and staff of the
University under the able leadership of Dr. Gopinath Raveendran.
The NAAC has upgraded the status of the University from B to B. He
was instrumental in digitizing the University by introducing Digital
Document Filling System (DDFS) and enthusiastically directed the
University to amend its status in tune with UGC Regulations, 2018.
He also initiated steps for starting a separate Research Directorate
with the aim of improving research standards in the University.
During his tenure, the University signed several MOUs with reputed
national and international organization. Under his stewardship , the
University also started a Business incubation Centre and established
an Institution's Innovation Council to encourage the innovative
potential of researchers and students.
Kannur University under his able leadership, rose to eminence as one
of the premier university in the country. It is therefore my considered
opinion that Dr. Gopinath Raveendran may be allowed to continue for
another term as Vice Chancellor. It s continuation will immensely
benefit Kannur University Section 10 (10) of Kannur University Act
provides for the reappointment of incumbent Vice Chancellor for a
second t erm and· does not stipulate any restriction on ag e.
I request your Excellency to be pleased to cancel the notification dated
27.10.20 appointing a Search -cum-Selection committee for identifying
the person to be appointed as Vice Chancellor. I also request Your
Excellency's pleasure in cancelling the notification dated 1.11. 2021
and in re -appointing Dr. Gopinath Raveendran for a continuous
second term as Vice Chancellor of Kannur University. Thank you.
Sincerely,
Dr. R. Bindu
Minister for Higher Education and
Social Justice and Pro -Chancellor
Sri Arif Mohammed Khan
Excellency The Governor of Kerala Bhavan ”
6. It is pertinent to note that on the very same day and date i.e., 22.11.2021,
the Additional Chief Secretary to the Government, recalled the Notification dated
01.11.2021 referred to above. The Notification dated 22.11.2021 recalling the
earlier Notification dated 01.11.2021 inviting application s from the eligible
candidates reads thus:
iv) Notification dated 22.11. 2021 re calling the Notifi cation dated 01. 11.20 21 inviting applications from the eligible candidates
The notification no. B2/88/2021/H.EDN dated 0 1/11/2021 inviting
application for the selection of Vice -Chancellor to Kannur University
is withdrawn.
Additional Chief Secretary to Government.
Higher Education Department. ”
7. On 22.11.2021, the Pro -Chancellor/ Minister for Higher Education
addressed one another letter to the Chancellor which reads thus:
v) Letter of Pro -Cha ncellor proposing re -appoint ment of Vice -Chancellor
Honourable Chancellor,
The term of Dr. Gopinath Raveendran, Vice Chancellor of Kannur
University will cease on 23 November 2021.
As per D. O. No. GS3 -1283/2021 dated 22.11.2021 from the office of
your Excellency, steps have been taken to withdraw notification
inviting applications to select a Vice Chancellor for Kannur
University. As Pro Chancellor of Kannur University. I consider it my
privilege to propose the name of Dr. Gopinath Raveendran, the
present incumbent Vice Chancellor to be re -appointed as Vice
Chancellor of Kannur University for a second continuous term
beginning from 24.11.2021.
Thank you,
Sincerely,
Dr. R. Bindu
Pro-Chancellor, Kannur University
Minister for High er Education
Sri Arif Mohammed Khan
His Excellency , The Governor of Kerala
Chancellor, Kannur University.”
8. Ultimately the final notification came to be issued dated 23.11.2021 by
order of the Governor/Chancellor re appointing the respondent No. 4 herein as
Vice -Chancellor of the Kannur University for a period of four years w.e.f.
24.11.2021. The Notification dated 23. 01.2021 reads thus:
vi) Re-appoint ment Notifi cation dated 2 3.11.2 021
No.GS3.1283/2021(3)
Dated: Thiruvananthapuram 23rd
November, 2021
In exercise of the powers conferred under the Kannur University Act,
1996 and the UGC Regulations, 2018, the Chancellor of the
University is pleased to re -appoint Dr. Gopinath Ravindran
(Professor, Department of History, Jamia Millia Islamia, New Delhi)
as the Vice Chancellor of the Kannur University, for a period of four
years, with effect from 24th November, 2021.
By order of the Government/Chancellor
(Dr. Davendra Kumar Dhodawat, IAS)
Principal Secretary to Government/Chancellor. ”
9. The above referred Notification dated 23.11.2021 was made the subject
matter of challenge by the appellant s herein before a learned Single Judge of the
High Court. The challenge to the notification referred to above, re appointing the
respondent No. 4 as the Vice -Chancel lor for a further term of four years was
essentially on two grounds. First, in view of Section 10(9) of the Act 1996 , no
person who is more than sixty years of age can be appointed as Vice -Chancellor .
In other words, the outer age limit for being appointed as the Vice -Chancellor of
the University being sixty years, the respondent No. 4 could not have been
reappointed as the Vice -Chancellor having crossed the age of sixty years.
Secondly, even for the purpose of reappointment , the entire procedure necessary
for being appointed as the Vice -Chancellor for the first time should have been
undertaken. In other words, the procedure prescribed in Section 10 of the Act
1996 ought to have been followed even at the time of reappointment .
10. As noted above, the challenge before the learned Single Judge failed. The
writ petition came to be dismissed by the learned Single Judge holding as under:
“6. From the perusal of the provisions of Section 10, it is evident
that Vice -Chancellor can be appointed by Chancellor on the
recommendation of the committee appointed by him which consists of
three members with one elected by Senate, another by Chairman of
the University Grants Commission and third by the Chancellor. The
chancellor shall appoint one of the members of the committee to his
convenience and committee shall make its recommendation within a
period of three months of appointment. University is not p recluded to
unanimously recommend the name of only one person and in that
process, Chancellor shall appoint that person to be Vice - Chancellor,
but, it may submit a panel of three names within the period and the
Vice-Chancellor shall be appointed from among the person s in the
panel. The aforementioned procedure at the time of the initial
appointment, for a period of four years, in 2017 was followed. The
first term was expiring after the completion of four years and it is in
that background, notice Ext.P2 was published but the Secretary of
Department of Higher Education notified of withdrawal with
immediate effect, for as per provisions of Sub section (10) , Vice -
Chancellor can be re -appointed, but the term is restricted to two (2).
It is now to be seen as to whether on the basis of statutory procedure
provided in the Act ibid and on analysis of judgments cited, can this
Court interfere in the process of appointment or not.
xxx xxx xxx
10. The expression 'appointment' and 're -appointment' have
different connotation; for undergoing the re -appointment the
qualifications are prescribed under Clause 7.3 of the UGC
regulations ibid and there is no age bar and for reappointment,
criteria of age wo uld not be applicable. No doubt, for appointment,
the entire procedure prescribed under Section 10 is to be followed. At
the time of the initial appointment, in the year 2007, all the parameters
were considered for appointment as per the procedure laid dow n
therein but for re -appointment as per proviso to sub -Section (10) there
is no requirement for undertaking the task of constitution of a
Selection Committee as was done during the initial appointment. As
per the pleading and submissions, there has not bee n any incident or
lack of integrity, transparency as provided in the UGC regulations.
Considering the provisions of applicable laws to my mind, notice
Ext.P2 was withdrawn vide Ext.P3 on 22.11.2021 for the simple
reason the party respondent i .e., the 4th respondent was not
disqualified at the time of initial appointment. It cannot be said that
there was any violation of the statutory provisions for reconsideration
for the purpose of re -appointment, thus, in such circumstances, writ
of quo -warranto cannot be issued .”
(Emphasis supplied)
11. The writ appeal filed by the appellants herein before the Division Bench of
the High Court also failed. The Division Bench in its impugned judgment held as
under:
“20. On an analysis of the said provision, it is clear that the Vice -
Chance llor sha ll be appointed by the Chance llor on the
recommendation of a committee appointed by him for the purpose.
In the case on hand, the appointment of the 4th respondent in the
year 2017 for a period of 4 years in contemplation of sub -Section 10
of Section 10, and in contemplation of law is admitted. It is also an
·admitted fact that the eligibility and qualification of the 4th
respondent at the initial stage of appointment is undoubted. It is also
quite clear and evident from the provisions of Section 10 that a clear
cut procedure and modalities are prescribed in the said provision to
select the Vice Chancellor.
21. One of the important aspects that is to be noted is that as per sub -
Section 9 of Section 10, it is clearly specified that no person who is
more than sixty years of age shall be appointed as Vice -Chancellor.
But, when it comes to sub -Section 10 of Section 10, it is made explicit
that the Vice-Chancellor shall hold office for a term of four years
from the date on which he enters upon his office and shall be eligible
for re -appointment. However, interdiction is made as per the proviso
thereto, by making it clear that, a person shall not be appointed as
Vice Chancellor for more than 2 terms . It is significant to note that
sub-Section 10 of Section 10 of Act, 1996 is conjunctive in nature and
not distinctive. Which thus means, the statute itself has made a clear
cut procedure with respect to the re -appointment and has made it
clear that the Vice Chancellor who holds the office for a term of 4
years consequent to the initial appointment, shall be eligible for re -
appointment.
22. No doubt, if there is any manner of shortcomings on the part of
the Vice Chancellor initially appointed, so as to affect the academic
excellence, moral issues or otherwise to have any adverse
consequence to hold the post of Vice Chancellor, it would be
different. But, this is a case where the appellants have not raised any
sort of such allegations against the 4th respondent. Merely because a
notification was issued to conduct a selection, that by itself will not
dissuade the Government/Chancellor to recommend and re -appoint
the existing Vice Chancellor. ”
xxx xxx xxx
30. Therefore, after assimilating the factual and legal situations and
understanding the issues, we are of the considered opinion that in the
matter of re -appointment, the age bar prescribed under Section 10(9)
for appointment of the Vice Chancellor would not come into play,
because the Vice Chancellor who has appointed before attaining the
age of 60 years, is entitled to continue for a term of four years and
shall be eligible for re -appointment.
31. Taking into account all the above intrinsic aspects with regard to
the appointment of the Vice Chancellor, eligibility, qualification etc.,
and also the relevant inputs of the UGC Regulations, 2018, we have
no hesitation to hold that the learned single Judge was right in
dismissing the writ petition. Even though various contentions were
advanced and several judgments were cited by the respective Senior
Counsel in regard to the intricacies of issuance of a writ of quo
warranto, we are not inclined to go into that question, since we find
that the re- appointment of the 4th respondent was made in
accordance with law, and therefore he can never be said to be an
usurper to the post. Having rendered the findings as above, the
arguments advanced strenuously by the learned Senior Counsel Sri.
George Poonthottam, relying upon the term 'eligibility', contained
under Section 10(10) of the Act 1996 in the matter of making
reappoint ment by referring to various legal dictionaries, we do not
find much force in the same.
32. Before we part with the judgment, it is only appropriate that the
Press release issued by the office of the Chancellor (Honourable
Governor) of the University is discussed. On a perusal of Annexure
A2 Press Release dated 03.02.2022, it is clear that right from the
publication of selection notification dated 01.11.2021 issued on
behalf of the selection committee uptill the reappointment are
narrated.
33. Be that as it may, it is clearly specified in the Press Release that
on 23rd November, 2021, Kerala Raj Bhavan issued a notification
re-appointing the 4th respondent as the Vice Chancellor of the
Kannur University. Other aspects are also dealt with in the Press
Release, which we do not propose to traverse through, being
unnecessary.
34. Taking into account the factual and legal circumstances
deliberated above, we are of the clear and considered opinion that
the appellants have not made out any case of jurisdictional error or
other legal infirmities susceptible to be interfered with in the
judgment of the learned single Judge. ”
(Emphasis supplied)
12. In such circumstances referred to above, the appellants (original writ
petitioners) are here before this Court with the present appeal.
13. Mr. Dama Seshadri Naidu and Mr. George Poonthottam, the le arned Senior
Counsel appearing for the appellants made the following submissions: -
a. The impugned judgment proceeds on an erroneous assumption that once
an appointment to the post of Vice -Chancellor is made through proper
channel, the reappointment of the same incumbent to such office upon
expiry of the first term can be made bypassing the original procedure
prescribed, including the constitution of a Search -cum-Selection
Committee as mandated by the University Grants Commission
(Minimum Qualifications for Appointment of Teachers and other
Academic Staff in Universities and Colleges and Measures for the
Maintenance of Standards in Higher Education ) Regulations, 2018 (for
short, ‘the UGC Regulations’ ). While doing so the High Court has
assumed that there is a distinction in procedure for ‘appointment’ and
‘reappointment ’, whereas there is no such distinction recognised under
the service law jurisprudence.
b. If the impugned judgment is to be upheld , then for reappointment as a
Vice -Chancellor under the proviso to Section 10(10) of the Kannur
University Act, there is no requirement for undertaking the exercise of
forming and consulting the Selection Committee as mandated under the
UGC Regulations and as was done during the initial appointment. Going
by this rationale, a person can be re appointed, even though there may be
better qualified and more deserving candidates eligible and qualified to
hold the office. This obviously is not the letter and spirit of the Kannur
University Act and the UGC Regulations , which aims at providing the
highest standards of education. In such circumstances, it is essential to
follow the entire selection process, even in cases of reappointment .
c. On the date of reappointment i.e., 24.11.2021, the respondent No. 4 had
crossed the age of 60 years which is the outer age limit for being
appointed to the post of Vice -Chancellor under Section 10(9) of the
Kannur University Act. Therefore, the respondent No. 4 was not eligible
for being re appointed as the Vice -Chancellor in 2021.
d. The notification dated 01.11.2021 was withdrawn only with a view to
overcome the hurdle of the age limit, and thereby, bypass the prescribed
procedure for appointment.
e. Section 10(10) of the Kannur University Act is very specific and clear.
The language of the provision unequivocally spells out the legislative
intent that if a person is once given an appointment, it would only enable
him an opportunity to be considered for fresh appointment for one more
term. The express language of the provision does not grant a candidate,
who is already appointed as the Vice -Chancellor, to evade the
mandatory eligibility criteria and to be appointed as the Vice -
Chancellor again. The distinction drawn by the High Court between the
terms “ appointment ” and “reappointment ” relying on Section 10(10) is
totally perve rse.
f. The High Court erred in proceeding on the premise that since the
respondent No. 4 was eligible for appointment on the first occasion, he
was also entitled for reappointment and thus the entire process for
appointment need not be undertaken afresh. This appears to be the logic
behind the withdrawal of Notifications calling for fresh applications.
g. The High Court ought to have appreciated that the constitution of the
Select Committee and preparation by the panel is prerequisite for the
appointment of V ice-Chancellor of University. If the contention that the
UGC Regulation s do not impose any age restriction for appointment as
the Vice -Chancellor is accepted, then the UGC Regulations do not
provi de for the reappointment of the Vice -Chancellor as well.
h. Section 10(10) of the Kannur University Act contemplates
reappointment and not an extension of the term of the Vice -Chancellor.
For this reason, the notification dated 01.11.2021 was issued calling for
applications from eligible candidates for the post of Vice -Chancellor.
The said notification stipulated that the candidate must satisfy the
eligibility criteria mentioned in Clause 7.3(i) of the UGC Regulations ,
and should not be more than 60 years of age on the date of issuing the
notification. When appointment is made by virtue of Section 10(10), the
law does not provide an exemption to be followed in the case of an
incumbent who is holding the post of Vice -Chancellor.
i. The reliance placed by the High Court on the decisions of the Rajasthan
High Court and Jammu & Kashmir High Court, in its impugned
judgment is not correct as the two High Courts had failed to take into
consideration the UGC Regulations which provide s for the method and
procedure for appointment of the Vice -Chancellor. The appointment of
the Vice -Chancellor can only be done in accordance with the procedure
as laid therein and the central legislation fully occupies the issue.
j. The reappointment was based on the request of the State Government
and not on any independent evaluation. Such a request is wholly
unwarranted as the State Government has no say in the appointment or
reappointment of the Vice -Chancellor.
k. The initial appointment of the respondent No. 4 as the Vice -Chancellor
was also contrary to the provisions of the UGC Regulations 2010 more
particularly Clause 7.3 , which stipulates that the appointment shall be
made after following the due process of identification of 3 to 5 names
by the Search -cum-Selection Committee. However, the minutes of the
Search -cum-Selection Committee dated 20.11.2017 indicates that only
one single name, i.e., the name of respondent No. 4, was recommended.
Hence, the initial appoi ntment itself being void ab initio , the
reappointment is also void .
14. With a view to fortify the aforesaid submissions the learned Senior Counsel
placed reliance on the following decisions:
(i) S.P. Gupta v. Union of India (First Judges Case), 1981 Supp
(ii) State of West Bengal v. Anindya Sundar Das, 2022 SCC OnLine
(iii) State of Himachal Pradesh v. Kailash Chand Mahajan, 1992
Supp (2) SCC 351 ,
(iv) Gambh irdan K. Ga dhvi v. State of Gujarat, (2022) 5 SCC 179 ,
(v) Professor (Dr.) Sreejith P .S. v. Dr. Rajasree M .S., 2022 SCC
OnLine SC 1473 ,
(vi) Dr. L .P. Agarwal v. Union of India and Others , (1992) 3 SCC
(vii) Dept. of Commerce v. US House of Representatives, 1999 SCC
15. In such circumstances referred to above, the learned Senior Counsel prayed
that there being merit in the appeal, the same may be allowed and the Notification
reappointing the respondent No. 4 as the Vice -Chancellor of the Kannur
University be set aside.
16. Mr. K.K. Venugopal , the learned Senior Counsel appearing for the State of
Kerala made the following submissions:
a. The seminal issue which arises in the present case is the conflict
between the provisions of the UGC Regulations , which is a subordinate
legislation made under Section 26(1)(e) and (g) respectively of the
University Grants Commission Act, 1956 (‘ UGC Act ’), and the State
laws made under Entry 25 of List III dealing with education.
b. The UGC Regulations make express provisions for the manner in which
a selection has to be made for the appointment of a Vice -Chancellor
through a Search -cum-Selection Committee consisting of persons of
eminence in the sphere of higher education and who are not connected
in any manner with the University concerned or its colleges. The
Visitor/Chancellor shall appoint the Vice -Chancellor out of the Panel
of three -five names recommended by the Search -cum-Selection
Committee.
c. The different state laws made under Entry 25 of List III dealing with
the same subject have provisions which give a dominant status to the
State Governments, and do not provide for the identical procedure
provided for by the UGC Regulations.
d. It has been held recently, in a judgment of this Court in Gambhirdan
K. Gadhvi (supra) (2 Judges) which is followed in Anindya Sundar Das
(supra) (2 Judges), that the UGC Regulations form a part of the UGC
Act, 1956 for the reason that it requires that the regulations made under
the Act shall be laid before the Parliament. Even though Section 26 of
the UGC Act does not provide for these regulations being part of the
Act, nevertheless the Court h eld that the mere fact of laying would
result in the regulation s being made part of the Act.
e. A catena of judgments of this Court have held to the same effect. What
has been missed in holding so is that the subordinate legislation,
whether of rules or regulations, could be read as part of the Act, but, for
different purposes. The real effect of this statement of the law is that
Article 254 of the Constitution would have to be read as – where a law
made by Par liament as well as the regulations or rules made under any
Central Act is repugnant to the provisions of a law made by the
legislature of a State, the law made by Parliament as well as the
regulations or rules made under any Central Act will prevail. The
provision will now mean that the law made by Parliament, or the
regulations or rules made under any Central Act, if repugnant to the law
made by the legislature of a State, then the law made by the State, to the
extent of the repugnancy, shall be void.
f. By reading as aforesaid , the consequences would be far reaching. For
this purpose, one should look at the very nature and source of making
regulations or rules under the Central Act. The Government of India
(Allocation of Business) Rules, 1961 would allocate the particular
subject of the Act to a particular minister, who would then have to
decide on wha t the rule should be. It is possible, as in the case of the
UGC Act, that many of the provisions made in the rules or regulations
may not find a place in the body of the Act, and, the only provision,
which could be possibly invoked would be the main provision of sub -
section (1) of the rule making section, in which it would be stated that
the regulations or rules may be made for the purposes of the Act. In the
case of the UGC Act, the regulation making power is conferred upon
the UGC, a statutory body acting under the Government, and not on the
Government itself.
g. The result is that a vast unbridled arbitrary power is vested in the
executive where no definite guidelines are provided for in any particular
section of the Act, and where the Act is totally silent on the aspects that
are covered by the legislations. Such an arbitrary unguided power by
itself would violate Article 14 of the Constitution of India, and the
regulation making power would have to be struck down.
h. Additionally, the procedure and method of making regulations or rules
which have to be laid before the House is contained in Rule 235 of “the
Rules of Procedure and Conduct of Business in Lok Sabha”, which
states: “The Speaker shall, in consultation with the Leader of the House,
fix a day or days or part of a day as the Speaker may think fit for the
consideration and passing of an amendment to such regulation, rule,
sub-rule, bye -law etc., of which notice may be given by a member:”
i. In ‘Parliamentary Procedure: Law Privileges Practice and Precedents’
by Subhash C. Kashyap, Third Edition Page 596, it is stated that where
a statute provides that rules shall be laid before Parliament and shall be
subject to a modification made by Parliament, if a member gives a
notice for modification of the Rules, the Government is bound to find
time for discussion of the motion. The motion for modification contains
a recommendation to the Rajya Sabha for concurrence, and the effect
of the passing of the motion by both the Houses is that the Government
is bound to amend the rules accordingly.
j. It has been held in the judgment in Gambhirdan K. Gadhvi (supra) that
the UGC regulations, though not so stated in the UGC Act, are part of
the UGC Act, and hence, would prevail over the repugnant sections of
the State Act, which would be rendered void to the extent of the
repugnancy.
k. A series of judgments of this Court state that subordinate legislation
becomes a part of the Act, even though the section itself does not say
so. These include State of U.P. v. Babu Ram Upadhya , (1961) 2 SCR
679, Express Newspaper (P) Ltd. v. Union of India , 1959 SCR 12,
U.P. Power Corpn. Ltd. v. NTPC Ltd. , (2009) 6 SCC 235 , Udai Singh
Dagar v. Union of India , (2007) 10 SCC 306 , and State of T.N. v. Hind
Stone , (1981) 2 SCC 205.
l. On the other hand, there is a line of judgments which states that unless
the Act provides that the rules be deemed as enacted in the Act, a
provision of the rule cannot be read as a part of the Act. This includes
Hotel Balaji v. State of A.P., 1993 Supp (4) SCC 536 , Yogendra
Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 , and State of
Mysore v. H. Sanjeeviah, (1967) 2 SCR 361.
m. None among these aspects which are crucial to the interpretation of
Article 254 of the Constitution have been considered anywhere in the
judgments on this issue, of whether the UGC Regulations are equivalent
to the laws made by Parliament or not. This being so, the judgments
being sub silentio, would not have any binding precedent.
n. The judgments of this Court relating to the UGC Act in Gambhirdan
K. Gadhvi (supra) and Anindya Sundar Das (supra) are sub silentio and
would not have any binding precedent, as great violence is being done
to the Constitution, far beyond the intention of the founding fathers of
the Constitution.
The reliance was placed on the decisions of this Court in Municipal
Corpn. of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 , para 12 and State
of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 , para 41 .
17. Mr. Shailesh Madiyal , the learned counsel appearing for the Kannur
University made the following submissions:
a. The High Court has rightly observed that the age bar prescribed under
Section 10(9) for appointment of the Vice -Chancellor would not be
applicable at the time of reappointment as the Vice -Chancellor who was
appointed before attaining the age of 60 years, is entitled to continue for
a term of four years and shall be eligible for reappointment under Section
10(10) of the Act 1996 .
b. Section 10(9) of the Act 1996 , clearly specifies that no person who is
more than sixty years of age shall be appointed as Vice -Chancellor. But,
when it comes to Section 10(10) of the Act 1996 , it states that the Vice-
Chancellor shall hold office for a term of four years from the date on
which he enters upon his office and shall be eligible for reappointment .
However, the proviso makes it clear that a person shall not be appointed
as Vice -Chancellor for more than 2 terms. Section 10(10) of the Act
should be read conjunctively and not distinctively. The statute itself has
provided for the procedure with respect to the reappointment and has
made it clear that the Vice -Chancellor holding office shall be eligible for
reappointment . The other eligibility criteria prescribed do not, therefore
apply to ' reappointment ' under Section 10(10). Hence, the reappointment
is not to be considered as a fresh appointment upon completion of the
first term.
c. The age limit has been fixed even in the matter of reappointment s in the
Mahatma Gandhi University Act, 1985; Kerala Agricultural University
Act, 1971; APJ Abdul Kalam Technological University Act, 2015; and
the Thunchath Ezhuthachan Malayalam University Act, 2013. Therefore,
the statute would explicitly specify the age limit in case of
reappointment s and when the statue does not provide for it, the age limit
prescribed for appointment cannot be applied even in the case of
reappointment s.
18. Mr. Basavaprabhu S. Patil , the learned Senior Counsel appearing for the
respondent No. 4 made the following submissions:
a. The questions of law, as formulated by the appellants are procedural in
nature.
b. This Court in Anindya Sundar Das (supra) on similar facts concerning
reappointment of Vice -Chancellor of Calcutta University, clarified that
reappointment does not entail the same procedural formalities as
appointment and there is a clear distinction in law between the two.
c. The High Court proceeded on the correct premise that Sec tion 10(10)
read with Clause 7.3 of the UGC Regulation s only prescribes the
procedure for the initial appointment to the post of Vice -Chancellor . The
respondent No. 4 at the time of initial appointment fulfilled all the
necessary qualifications required to be appointed, and therefore , even at
the time of reappointment such eligibility conditions stood fulfilled .
Clause 7.3 does not talk of reappointment and thus would not be
applicable to the respondent No. 4 since the reappointment was not a
fresh appointment by any stretch of imagination.
d. Section 10(9) and Sec tion 10(10) respectively are two separate & distinct
provisions and as such should be read conjunctively and not
disjunctively.
e. Neither Sec tion 10(10) nor the UGC Regulation prescribe for any
limitation on reappointment of a person as Vice -Chancellor. Sec tion 10
(9) only specifies that no person shall be ‘appointed’ as Vice - Chancellor
above the age of 60. The term reappointment has, in the wisdom of the
legislature, not been used in the Statute for the express purpose that
Section 10(10) existed and to facilitate the continuation of eligible,
qualified and experienced person on such post.
19. The learned Attorney General for India appearing for the Chancellor made
the following submissions:
a. The plain reading of regulation 7.3, indicates that the selection of Vice -
Chancellor should be through proper scrutiny of merit by a panel of 3 to
5 persons (Search -cum-Selection Committee ) through a public
notification . The Search -cum-Selection Committee should be of person s
of eminence in the sphere of Higher Education and the members should
not be in any manner connected with the university concerned or its
colleges. The Regulations further mandate that one of the member s of
the Search -cum-Selection Committee shall be nominated by the UGC for
selection of Vice -Chancellor of State. In the present case, Regulation No.
7.3 of the UGC Regulations ha s not been complied with at all and
therefore on this ground al one the reappointment of the respondent No.
4 as the Vice -Chancellor should be cancelled by a writ of quo-warranto.
b. The State Government having adopted the UGC Regulations, the
Regulations made by the Parliament under Entry 25 of List III shall
prevail over the State legislation . Once the UGC Regulations presc ribe
the procedure and method for appointment of Vice - Chancellor, the
University has t o comply with the Regulations, which has not been
followed in the present case . Therefore , the High Court erred in not
following the UGC Guidelines .
20. The learned Attorney General invited the attention of this Court to a press
release issued by the Kerala Raj Bhavan dated 03.02.2022 which is at Annexure
P-18 at page 136 :
“03 February 2022
Kannur Varsity: Facts grossly distorted.
Kerala Raj Bhavan strongly refutes the claim in some news reports
that it was on the direction of Hon'ble Governor that the name of Dr.
Gopinath Ravindran was suggested for reappointment as Vice
Chancellor, Kannur University. The truth is that the same was
initiated by the Chief Minister and Higher Education Minister.
To set the record straight, Raj Bhavan would like to place the
chronology of events on the 21st, 22nd and 23rd of November, 2021.
The tenure of the Vice Chancellor, Kannur University was to end on
the 23rd of November. A selection committee had already been
constituted vide notification dated 27.10.2021 to select and appoint a
new Vice Chancellor.
The Additional Chief Secretary, Higher Education Department,
Government of Kerala had also issued a notification dated 01.11.2021
on behalf of the Selection Committee to invite the applications to the
post of the Vice Chancellor.
While this process was on 21 st November 2021, as deputed by Chief
Minister, Shri K.K. Raveendranath, Legal Adviser to Chief Minister,
met Hon'ble Governor at Kerala Raj Bhavan at 11.30 am. He
conveyed to Hon'ble Governor, the Government's desire to reappoint
Dr. Gopinath Ravindran as Vice Chancellor and informed that a
formal request t o this effect from the Minister for Higher Education
was on the way to Raj Bhavan.
Hon'ble Governor, who had a different view on the matter, informed
him that the proposal appeared legally untenable since the due
process of selection was already in motion. On this, the Legal Advisor
informed that the Government has examined the matter in detail and
that the request was legally sound to withstand any legal scrutiny. He
informed that Government had the legal advice and produced some
typed papers.
Hon'ble Governor inquired about its source, as it was unsigned.
The Legal Advisor to the Chief Minister said it was the opinion of the
Advocate General of Kerala and repeated the plea to consider the
request of the Government to reappoint Dr. Gopinath Ravindran as
Vice Chancellor, Kannur University.
At this juncture, Hon'ble Governor said the instant opinion said to be
from Advocate General but without his signature and seal, was of no
significance.
To this, the Legal Advisor said that he will produce the legal opinion
bearing the signature and seal of Advocate General without delay.
As submitted by Legal Advisor to the Chief Minister earlier, a letter
written by Dr. R. Bindu, Minister for Higher Education reached Raj
Bhavan at 01 .30 pm on 22.11.2021. The letter had highlighted Dr.
Gopinath Ravindran's capabilities and desirability to be appointed for
another term as Vice Chancellor.
In this letter, she had clearly requested Hon'ble Chancellor to "be
pleased to cancel the notification dated 27.10.2021 appointing a
Search -Cum -Selection Committee for identifying the person to be
appointed as Vice Chancellor".
She also requested Hon'ble Chancellor's "pleasure in cancelling the
notification dated 01.11.2021 and in re -appointing Dr Gopinath
Ravindran for a continuous second term as Vice Chancellor of Kannur
University".
On 22nd November by 12.10 pm, Shri R. Mohan, Officer on Special
Duty to Chief Minister and the Legal Advisor to Chief Minister had
met the Hon'ble Governor, repeated their request and in support,
submitted the signed legal opinion of the Advocate General w hich was
addressed to the Additional Chief Secretary, Higher Education
Department.
This opinion of the Advocate General substantially endorsed the
request made earlier by Legal Advisor to Chief Minister in the
personal meeting with the Governor and the request of the Higher
Education Minister in her letter.
The eight -page opinion of the Advocate General which is addressed
to the Additional Chief Secretary, Higher Education Department says
that there was no legal bar in reappointing Dr. Gopinath Ravindran
as Vice Chancellor, Kannur University, and that the age bar of 60
years fixed in the Kannur University Act, in as much as the sa me is
contrary to the UGC Regulations, is without the authority of law and
as such, inapplicable. The Advocate General summed up his opinion
as under: -
"1. If the Hon'ble Chancellor accepts this recommendation, the
notification dated 27.10.2021, appointing a Search Committee for
identifying the person to be appointed as Vice Chancellor of the
Kannur University may be withdrawn.
2. Pro -Chancellor may be permitted to submit necessary proposal for
the re-appointment of the present incumbent of the post of Vice -
Chancellor of the Kannur University as Vice Chancellor of the said
University for a further continuous term of four years".
This opinion of the Advocate General was also forwarded separately
to Kerala Raj Bhavan by the Minister for Higher Education on
22.11.2021 itself.
In the light of the legal opinion thus received from the Advocate
General, the file was processed and Hon'ble Governor agreed to
accept the proposal of the Higher Education Minister.
At 04.30 pm, Principal Secretary to Governor wrote to Additional
Chief Secretary, Higher Education, conveying the decision of the
Hon'ble Chancellor "to withdraw the Notification dated 27.10.2021
and subsequent Corrigendum dated 03.11.2021" and "to permit the
State Government to submit necessary proposal for the reappointment
of the present incumbent in the post of Vice Chancellor Kannur
University".
At 10.10 pm on the same day Kerala Raj Bhavan received the next
letter from the Minister for Higher Education, informing that "steps
have been taken to withdraw notification inviting applications" and
that as Pro Chancellor, she was proposing the name of D r. Gopinath
Ravindran, the present incumbent Vice Chancellor to be re -appointed
as Vice Chancellor of Kannur University for a second continuous term
beginning from 24.11.2021.
Accordingly, on 23rd November, 2021, Kerala Raj Bhavan issued
notification reappointing Dr. Gopinath Ravindran as Vice
Chancellor, Kannur University.
Thus, the argument in the news reports that the 'Minister had only
proposed a name in response to the Governor's letter', is far from the
truth, which is clear from the chronology of events (which was also
mentioned in Hon'ble Governor ’s letter to Chief Minister on 08th
December 2021).
In brief, the process of selection of Vice Chancellor, Kannur
University which was set in motion vide Kerala Raj Bhavan
notification dated 27.10.2021 came to an end consequent to the
request from the Minister Higher Education, OSD to Chief Minister
and Leg al Advisor to the Chief Minister duly supported by the legal
opinion of the Advocate General, Kerala, culminated in the
reappointment of Dr. Gopinath Ravindran as Vice Chancellor,
Kannur University. ”
(Emphasis supplied)
21. In such circumstances , the learned Attorney General for India prayed that
the reappointment of the respondent No. 4 as the Vice -Chancellor being contrary
to the UGC guidelines , the same deserves to be s et at naught by issue of writ of
quo warranto.
22. Before adverting to the rival submissions canvassed on either side, we must
look into the relevant provisions of the Kannur University Act as well as the
relevant regulations of the UGC.
23. Section 10 of the Kannur University Act reads thus:
“(1) The Vice-Chancellor shall be appointed by the Chancellor on the
recommendation of a committee appointed by him for the purpose
(hereinafter referred to as the committee).
(2) The committee shall consist of three members, one elected by the
Senate, one nominated by the Chairman of the University Grants
Commission and the third nominated by the Chancellor.
(3) The Chancellor shall appoint one of the members of the committee
to be its convener.
(4) The committee shall make its recommendation within a period of
three months of its appointment or within such further period, not
exceeding one month, as the Chancellor may specify in this behalf.
(5) In case the committee unanimously recommends the name of only
one person, the Chancellor shall appoint that person to be the Vice -
Chancellor.
(6) In the case the committee is unable to recommend a name
unanimously, it may submit a panel of three names to the Chancellor
within the period specified in or under sub -section (4) and the
Chancellor shall appoint one of the persons in the panel to be t he Vice -
Chancellor.
(7) In case the committee fails to make a unanimous recommendation
as provided in sub -section (5) or to submit a panel as provided in sub -
section (6), each member of the committee may submit a panel of three
names to the Chancellor and the Vice -Chancellor shall be appointed
from among the persons mentioned in the panels.
(8) Non -submission of a panel under sub -section (7) by any member
of the committee shall not invalidate the appoint ment of the Vice -
Chancellor .
(9) No person who is more than sixty years of age shall be appointed
as Vice -Chancellor.
(10) The Vice -Chancellor shall, hold office for a term of four years
from the date on which he enters upon his office and shall be eligible
for re-appointment :
Provided that a person shall not be appointed as Vice -Chancellor
for more than two terms.”
24. Section 10 of the Act 1996 referred to above, envisages distinct situations
namely:
(a) Appointment of a Vice -Chancellor by the Chancellor out of a panel of
three names recommended by the search committee constituted by the
State Government;
(b) No person above sixty years of age is eligible to be appointed as a
Vice -Chancellor;
(c) Reappointment in respect of which, the power is vested in the
Chancellor under Section 10(10); and
(d) The proviso attached to sub -section (10) of the Section 10 stipulating
that a person shall not be appoin ted as Vice -Chancellor for more than
two terms.
25. Regulation 7.3 of the UGC Regulations deals with Vice -Chancellors and
reads as follows:
A person possessing the highest level of competence, integrity, morals
and institutional commitment is to be appointed as Vice -Chancellor.
The person to be appointed as a Vice -Chancellor should be a
distinguished academician, with a minimum of ten years’ o f
experience as Professor in a University or ten years’ of experience in
a reputed research and / or academic administrative organisation
with proof of having demonstrated academic leadership.
ii. The selection for the post of Vice -Chancellor should be through
proper identification by a Panel of 3 -5 persons by a Search -cum-
Selection -Committee, through a public notification or nomination or
a talent search process or a combination thereof. The members of such
Search -cum-Selection Committee shall be persons’ of eminence in the
sphere of higher education and shall not be connec ted in any manner
with the University concerned or its colleges. While preparing the
panel, the Search cum -Selection Committee shall give proper
weightage to the academic excellence, exposure to the higher
education system in the country and abroad, and ad equate experience
in academic and administrative governance, to be given in writing
along with the panel to be submitted to the Visitor/Chancellor. One
member of the Search cum Selection Committee shall be nominated by
the Chairman, University Grants Commi ssion, for selection of Vice
Chancellors of State, Private and Deemed to be Universities.
iii. The Visitor/Chancellor shall appoint the Vice Chancellor out of
the Panel of names recommended by the Search -cum-Selection
Committee.
iv. The term of office of the Vice -Chancellor shall form part of the
service period of the incumbent making him/her eligible for all service
related benefits.”
(Emphasis supplied)
26. Few salient features of the Regulation 7.3 of the UGC Regulations referred
to above are thus:
(a) The selection of the Vice -Chancellor should be through proper
identification by a panel of 3 -5 persons by constituting a Search -cum-
Selection Committee through a public notification or nomination or
a talen t search process or a combination of all the four.
(b) The members of the Search -cum-Selection Committee should be
persons of eminence in the field of higher education and they shall
not be connected in any manner with the university concerned or its
colleges.
(c) The Selection Committee for the purpose of preparing the panel shall
give proper weightage to the academic excellence, exposure to the
higher education system in the country and abroad and adequate
experience in academic and administrative governance. The panel
shall place its recommendation before the Chancellor.
(d) One member of the Selection Committee would be nominated by the
Chairman, UGC.
27. Quo warranto is a judicial remedy against an intruder or usurper of an
independent substantive public office or franchise or liberty. The usurper is asked
‘by what authority’ (quo warranto ) he is in such office, franchise, or liberty. A
writ of quo warranto thus poses a question to the holder or occupier of a public
office, and that question is: “Where is your warrant of appointment by which you
are holding this office?” If the answer is not satisfactory, the usurper can be ousted
by this writ.
28. The writ of quo warranto is an ancient Common Law remedy of a
prerogative nature. It was a writ of right used by the Crown against a person
claiming any office, franchise, or liberty to inquire by what authority he was in
the office, franchise of liberty . In case his claim was not well founded or there
was non -use, neglect, misuse, or abuse of the office, he was to be ousted.
29. Quo warranto is a writ that lies against a person who usurps any franchise,
liberty, or office.
In Corpus Juris Secundum , quo warranto is defined thus;
“Quo warranto is a proceeding to determine the right to the exercise
of a franchise or office and to oust the holder if his claim is not well
founded, or if he has forfeited his right.”
Blackstone, states: “The ancient writ of quo warranto was in the nature of a writ
of right for the King against any office, franchise or liberty of the Crown to inquire
by what authority he supported his claim, in order to determine the right.”
30. Quo warranto is a remedy or procedure whereby the State inquires into the
legality of the claim which a party asserts to an office or franchise, and to oust
him from its enjoyment if the claim be not well founded, or to have the same
declared forfeited and recover it, if, having once been rig htfully possessed and
enjoyed; it has become forfeited for mis -user or non -user.
31. In B.R. Kapur v. State of T.N . and Another reported in (2001) 7 SCC 231,
after referring to Halsbury's Laws of England, Words and Phrases and leading
decisions on the point, it was observed that a writ of quo warranto is a writ which
lies against the person who is not entitled to hold an office of public nature and is
only a usurper of the office. Quo warranto is directed to such person who is
required to show by what a uthority he is entitled to hold the office. The challenge
can be made on various grounds, including the ground that the possessor of the
office does not fulfill the required qualifications or suffers from any
disqualification, which debars him to hold such office. It was further stated that
on being called upon to establish valid authority to hold a public office, i f such
person fails to do so, a writ of quo warranto shall be directed against him. It shall
be no defence by the holder of the office that the appointment was made by the
competent authority, who under the law is not answerable to any court for
anything do ne in performance of duties of his office . The question of fulfilling
legal requirements and qualifications necessary to hold a public office w ould be
considered in the proceedings independent of the fact as to who made the
appointment and the manner in which the appointment was made.
32. Any person may challenge the validity of an appointment of a public office,
whether any fundamental or other legal right of his has been infringed or not. But
the court must be satisfied that the person so applying is bona fide and there is a
necessity in public interest to declare judicially that there is a usurpation of public
office. If the application is not bona fide and the applicant is a mere pawn or a
man of straw in the hands of others, he cannot claim the remedy. Though the
applicant may not be an aspirant for the office nor has any interest in appointment,
he can apply as a private relator, or an ordinary citize n.
33. These rival submissions would need to be analyzed. However, before we
enter into a substantive analysis of the submissions, it would be appropriate to
deal with the procedural objection regarding the limits of the writ of quo
warranto.
34. Through a line of cases, this Court has laid out the terms on which the writ
of quo warranto may be exercised. In The University of Mysore and Anr. v. C.D.
Govinda Rao and Anr. , a Constitution Bench of this Court, speaking through
Justice Gajendragadkar (as he then was), held that : (1964) 4 SCR 575
“Broadly stated, the quo warranto proceeding affords a judicial
remed y by which any person , who holds an independent substantive
public office or franchise or liberty, is called upon to show by what
right he holds the said office, franchise or liberty , so that his title to it
may be duly determined , and in case the finding is that the holder of
the office has no title , he would be ousted from that office by judicial
order. In other words, the procedure of quo warranto gives the
judiciary a weapon to control the Executive from making
appointments to public office against law and to protect a citizen from
being deprived of public office to which he has a right. These
proceedings also tend to protect the public from usurpe rs of public
office, who might be allowed to continue either with the connivance of
the Executive or by reason of its apathy. It will, thus, be seen that
before a person can effectively claim a writ of quo warranto, he has
to satisfy the Court that the office in question is a public office and is
held by a usurper without legal authority, and that inevitably would
lead to the enquiry as to whether the appointment of the alleged
usurper has been made in accordance with law or not .
(Emphasis supplied)
35. In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor
Panchayat and Ors. reported in (2003) 4 SCC 712, in his concurring opinion in
a three -Judge Bench, Justice SB Sinha , held that:
“22. The High Court in exercise of its writ jurisdiction in a matter of
this nature is required to determine at the outset as to whether a case
has been made out for issuance of a writ of certiorari or a writ of quo
warranto. The jurisdiction of the High C ourt to issue a writ of quo
warranto is a limited one. While issuing such a writ, the Court merely
makes a public declaration but will not consider the respective impact
on the candidates or other factors which may be relevant for issuance
of a writ of certiorari. (See R.K. Jain v. Union of India [(1993) 4 SCC
119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] , SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment
is contrary to the statutory rules. (See Mor Modern Coop. Transport
Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana (2002)
36. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage
Board Employees' Assn . reported in (2006) 11 SCC 731, the limitations of the
writ of quo warranto were elaborated upon by a two -Judge Bench of this Court.
The court observed:
“49. … The jurisdiction of the High Court to issue a writ of quo
warranto is a limited one which can only be issued when the
appointment is contrary to the statutory rules .
xxx xxx xxx
51. It is settled law by a catena of decisions that the court cannot sit
in judgment over the wisdom of the Government in the choice of the
person to be appointed so long as the person chosen possesses the
prescribed qualification and is otherwise eligible for
appointment. This Court in R.K. Jain v. Union of India [(1993) 4 SCC
119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464 ] was pleased to
hold that the evaluation of the comparative merits of the candidates
would not be gone into a public interest litigation and only in a
proceeding initiated by an aggrieved person, may it be open to be
considered. It was also held that in s ervice jurisprudence it is settled
law that it is for the aggrieved person, that is, the non -appointee to
assail the legality or correctness of the action and that a third party
has no locus standi to canvass the legality or correctness of the action.
Further, it was declared that public law declaration would only be
made at the behest of a public -spirited person coming before the court
as a petitioner…”
(Emphasis supplied)
37. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors.
reported in (2014) 1 SCC 161, another two -Judge Bench of this Court reiterated
that:
“21. … the jurisdiction of the High Court while issuing a writ of quo
warranto is a limited one and can only be issued when the person
holding the public office lacks the eligibility criteria or when the
appointment is contrary to the statutory rules . That apart, the concept
of locus standi which is strictly applicable to service jurisprudence for
the purpose of canvassing the legality or correctness of the action
should not be allowed to have any entry, for such allowance is likely
to exceed the limits of quo warranto which is impermissible. The basic
purpose of a writ of quo warranto is to confer jurisdiction on the
constitutional courts to see that a public office is not held by usurper
without any legal authority.
(Emphasis supplied)
38. More recently, in Bharati Reddy v. State of Karnataka and Others
reported in (2018) 6 SCC 162, a three -Judge Bench of this Court, of which one of
us (Justice D .Y. Chandrachud) was a part, noted the line of precedent clarifying
the remit of the writ of quo warranto .
39. Through these decisions, the Court has settled the position that the writ of
quo warranto can be issued where an appointment has not been made in
accordance with the law. Accordingly , the rival contentions must be analyzed by
dealing with the scheme of the statutory provisions governing the appointment
and reappointment of the V ice-Chancellor .
40. Having heard the learned counsel appearing for the parties and having gone
through the materials on record the following questions of law fall for our
consideration:
(i) Whether reappointment is permissible in respect of a tenure post?
(ii) Whether the outer age limit of sixty years for the appointment of Vice -
Chancellor as stipulated under sub-section (9) of Section 10 of the Act
1996 is to be made applicable even in the case of reappointment of the
Vice -Chancellor for one more term of four years?
(iii) Whether the reappointment of the Vice -Chancellor has to follow the
same process as a fresh appointment by setting up a selection committee
under Section 10(1) of the Act 1996 ?
(iv) Did the Chancellor abdicate or surrender his statutory power of
reappointment of the Vice -Chancellor?
i) Whether reappointment is permissible in respect of a Tenure Post ?
41. It was argued on behalf of the appellants that in the case of a tenure post
such as the post of Vice -Chancellor , there can be no reappointment . In other
words, at the end of the tenure the appointment automatically comes to an end and
there can only be a fresh appointment and not reappointment .
42. In the aforesaid context, it is necessary to understand what is meant by a
“tenure post”. The word “Tenure” is derived from the Latin word tenere which
means “to hold”. The Black’s Law Dictionary defines “tenure” in the context of
a post or office as follows [See: Henry Campbell Black on “Black’s Law
Dictionary”, 1968, 4th Edition Pg. 1639]: -
“TENURE IN OFFICE. Right to perform duties and receive
emoluments thereof. ”
43. This Court in its decision in Dr. L.P. Agarwal (supra) , while examining
what is meant by a “tenure post” held that it is a post where the person appointed
to it is entitled to continue in it till his term is complete unless it is curtailed for
justifiable reasons. The relevant observations read as under: -
“16. …Tenure means a term during which an office is held. It is a
condition of holding the office. Once a person is appointed to a
tenure post, his appointment to the said office begins when he joins
and it comes to an end on the completion of the tenure unless
curtailed on justifiable grounds. Such a person does not
superannuate, he only goes out of the office on completion of his
tenure. …”
44. A similar view as aforesaid was taken by this Court in P. Venugopal v.
Union of India reported in (2008) 5 SCC 1.
45. In another decision of this Court in J.S. Yadav v. State of Uttar Pradesh
and Another reported in (2011) 6 SCC 570 , it was held that a person appointed
to a tenure post only goes out once the tenure is completed. The relevant
observations are reproduced below: -
“17. An employee appointed for a fixed period under the statute is
entitled to continue till the expiry of the tenure and in such a case
there can be no occasion to pass the order of superannuation for the
reason that the tenure comes to an end automaticall y by efflux of
time….”
46. We are not impressed with the submission canvassed on behalf of the
appellants that the post of the Vice -Chancellor being a “tenure post”
reappointment is not permissible. The statute itself has provided for
reappointment with some object in mind . The ordinary meaning that can be
ascribed to the term “ reappointment ” is the act or process of deciding essentially
that someone should continue in a particular job. Ordinarily, the object behind
providing for reappointment is twofold. First is “retention” i.e., where the
incumbent to the office/post during his term is found to be extraordinary and has
established himself or herself to be an asset to the institution , then in such
circumstance, such person is retained with a view to allow him to continue on the
same post for one more term . Secondly, having regard to the natu re of the post
the organization or institution may not be in a position to fill up the post in a time
bound manner and in such circumstances , the provision for reappointment may
enable the organization or institution to relieve itself of the tedium of going
through the entire selection process afresh every time the post become s vacant.
47. In view of the aforesaid, we hold that reappointment is permissible even in
case of a tenure post.
ii) Whether the outer -age limit stipulated under sub -section (9) of Section
10 of the Act 1996 is applicable in case of reappointment of the Vice -
Chancellor ?
48. On a plain reading of sub -section (9) of Section 10 of the Act 1996, it
appears that the person sought to be appointed as a Vice -Chancellor must not be
more than sixty -years of age at the time of appointment i.e., it provides the outer
age limit for appointment. While sub -section (10) of Section 10 of the Act 1996
provides that upon appointment, the term of the V ice-Chancellor would be for
four years and that he shall be eligible for reappointment . The proviso attached to
sub-section (10) stipulates that no person shall be appointed as Vice -Chancellor
for more than two terms.
49. A close reading of the statutory provisions of Section 10 of the Act 1996
would reveal that sub -section (9) deals with a situation prior to or leading upto the
appointment of Vice -Chancellor whereas sub -section (10) contemplates a
situation after the appointment of Vice -Chancellor has been made. This is
discernible from a very fine but pertinent distinction between the language of the
two provisions. Sub -section (9) which provides the outer age limit for
appointment uses the word “ person ”. This connotes tha t the Vice -Chancellor is
yet to be appointed whereas sub -section (10) uses the word “ Vice-Chancellor”
which connotes that it is applicable to the incumbent holding the office of Vice -
Chancellor or simpliciter the Vice -Chancellor after having been appointed.
50. Thus, in our view sub-section (9) of Section 10 of the Act 1996 will apply
only at the stage of appointment of Vice -Chancellor and would have no
application whatsoever when it comes to reappointment of Vice -Chancellor under
sub-section (10). This is reinforced from the words “ shall be eligible for re -
appointment” occurring in sub -section (10) which connotes that the same is an
enabling provision whereby the Vice -Chancellor by virtue of holding his office is
deemed eligible for reappointment irrespective of the other provisions.
51. We are conscious of the fact that, the proviso to sub -section (10) which
provides that the V ice-Chancellor shall not be appointed for more than two terms
also uses the word “ person ” which in our opinion is a deliberate choice. We say
so because the proviso deals with a situation where the Vice -Chancellor has
demitted office by virtue of lapse of his tenure.
52. The aforesaid aspect may be looked at from one another angle . If we were
to hold that the outer age limit provided in sub -section (9) would apply even to
reappointment , then the same would effectively mean that only those persons who
are appointed as Vice -Chancellor at the age of fifty -five or below could be
considered for reappointment . Such an interpretation would result in conditions
being read into sub -section (10) which have not been prescribed by the legislature.
Had the intent of legislature been oth erwise, sub -section (10) or the words “ shall
be eligible for re -appointment” would have been specifically qualified by or made
subject to the words “ sub-section (9) ” or “ provisions of this section ”.
53. If sub -section (9) is interpreted so as to be made applicable even to
reappointment as provid ed in sub -section (10), then the result would be that any
person who is appointed as Vice -Chancellor at the age of fifty -six or more would
not be eligible for reappointment , thereby rendering sub -section (10) and its
proviso completely otiose and meaningless in such cases.
54. This would also severely curtail the scope of the selection committee while
considering candidates for the post of V ice-Chancellor , as the selection committee
in such case would be inclined to consider younger candidates over older and
possibly more qualified and experienced ones who may be more suitable
considering the coveted nature of the post and the duties expected to be
dischar ged. Moreover, it would inhibit a Vice -Chancellor who has already held
office and proven himself to be a valuable asset during his tenure from being
reappointed if he happens to be of more than sixty -years of age . This would
frustrate the very purpose of ‘ reappointment ’ which given the nature of the post
of Vice -Chancellor is all the more important as it is the V ice-Chancellor who is
responsible for the day -to-day functioning as well as the overall performance of
the University, its faculty, students etc.
55. Even otherwise, the interpretation as sought to be placed by the appellants
would lead to a very absurd situation, where a Vice -Chancellor of sixty -one years
age cannot be re appointed to hold the office of Vice -Chancellor , however, at the
same time another person would still be able to hold the office of Vice -Chancellor
at the very same age of sixty -one years only by reason of him being appointed at
the age of fifty -nine years. This appears to be bereft of any logic, more particularly
when sub -section (9) does not say that a person shall hold office of Vice -
Chancellor till he attains the age of sixty years and rather uses the expression “ No
Person who is more than sixty years of age shall be appointed as Vice -
Chancellor” .
56. The doctrine of purposive construction may be taken recourse to for the
purpose of giving full effect to the statutory provisions, and the courts must state
what meaning the statute should bear, rather than rendering the statute a nullity,
as statutes are meant to be operative and not inept. The courts must refrain from
declaring a statute to be unworkable. The r ules of interpretation require that
construction which carries forward the objectives of the statute, protects interest
of the parties and keeps the remedy alive, should be preferred looking into the text
and context of the statute. Construction given by t he court must promote the object
of the statute and serve the purpose for which it has been enacted and not efface
its very purpose. The courts strongly lean against any construction which tends to
reduce a statute to futility. The provision of the statute must be so construed as to
make it effective and operative. The court must take a pragmatic view and must
keep in mind the purpose for which the statute was enacted as the purpose of law
itself provides good guidance to courts as they interpret the true m eaning of the
Act and thus legislative futility must be ruled out. A statute must be construed in
such a manner so as to ensure that the Act itself does not become a dead letter and
the obvious intention of the legislature does not stand defeated unless it leads to a
case of absolute intractability in use. The court must adopt a construction which
suppresses the mischief and advances the remedy and to suppress subtle
inventions and evasions for continuance of the mischief, and pro privato
commodo , and to add force and li fe to the cure and remedy, according to the true
intent of the makers of the Act, pro bono publico . The court must give effect to
the purpose and object of the Act for the reason that legislature is presumed to
have enacted a reasonable statute. (Vide M. Pentiah v. Muddala
Veeramallappa [AIR 1961 SC 1107], S.P. Jain v. Krishna Mohan
Gupta [(1987) 1 SCC 191], RBI v. Peerless General Finance and Investment
Co. Ltd. [(1987) 1 SCC 424] , Tinsukhia Electric Supply Co. Ltd. v. State of
Assam [(1989) 3 SCC 709], SC C p. 754, para 118, UCO Bank v. Rajinder Lal
Capoor [(2008) 5 SCC 257 ] and Grid Corpn. of Orissa Ltd. v. Eastern Metals
and Ferro Alloys [(2011) 11 SCC 334].)
57. Thus , in view of the aforesaid, we hold that the outer age limit of sixty years
provided in sub -section (9) of Section 10 of the Act 1996 will not apply , when it
comes to reappointment under sub -section (10) of Section 10 of the Act 1996.
iii) Whether the reappointment of the Vice -Chancellor has to follow the
same process as a fresh appointment under Section 10 of the Act 1996 ?
58. Reappointment of Vice -Chancellor has been provided under sub-section
(10) of Section 10 of the Act 1996. The proviso to sub -section (10) of the Act
1996 further makes the intention of the legislature to provide for reappointment
more clear. The legislature has not thought fit to prescrib e any particular
procedure or any particular mode or manner o f reappointment . The UGC
Regulations are also silent as regards the reappointment of Vice -Chancellor.
59. The language of sub -section (10) of Section 10 of the Act 1996 is plain and
simple. The provision does not confer right to seek reappointment . There is only
one way of reading the provision , which is, that a Vice -Chancellor once
appointed, subject to the proviso to sub -section (10) of Section 10, is eligible to
be considered for reappointment . What this implies is that an incumbent Vice -
Chancel lor may not have to reapply along with other candidates and compete for
the same position once again. Reappointment essentially means the incumbent
Vice -Chancellor would receive another term of four years if the Chancellor deems
fit without reopening the position for new applications or without constituting a
select committee. “Re” means again, and is freely used as pr efix. It gives colour
of “again” to the verb with which it is placed. “ Reappointment ” is an act or process
of being appointed again.
60. Where the appointment is to be made for the first time or where the same
person is being appointed as a Vice -Chancellor for the second time, but not in
continuation of the first term, the procedure provided under Section 10 of the Act
1996 must be gone thr ough. However, in the case of reappointment immediately
upon the tenure of the first term coming to an end, there is no requirement to in itiate
the entire process of appointment as provided under Section 10 of the Act 1996 .
61. In the aforesaid context, we may refer to a decision of this Court in the case
of Anindya Sunder Das (supra) , authored by one of us Dr. D.Y. Chandrachud,
CJI. In the said case, the High Court at Calcutta had allowed a petition under
Article 226 of the Constitution seeking a writ of quo warranto against the Vice -
Chancellor of Calcutta University. The High Court hel d that the State Government
had no authority to appoint or reappoint the Vice -Chancellor under Section 8 of
the Calcutta University Act, 1979 (for short, “the Act 1979”) or by taking recourse
to the residuary provisions of Section 60 of the Act 1979 . As a consequence, the
order issued by the Special Secretary to the Government of West Bengal
reappointing the incumbent Vice -Chancellor of Calcutta University was set aside.
The High Court held that the Vice -Chancellor had no authority to hold that offic e
on the basis of the order of appointment. The judgment of the Calcutta High Court
was challenged before this Court in Civil Appeal No. 6706 of 2022. One of the
issues that fe ll for consideration of this Court in the said case was, whether the
same procedure which was provided for appointment of a Vice -Chancellor under
Section 8(1) was require d to be followed at the time of reappointment .
62. It was argued that there is a distinction in law between appointment and
reappointment because in the case of the latter the zone of consideration is
restructured to persons already holding posts and in such case the suitability of
the incumbent which was assessed at the time of initial appointment need not be
reassessed.
63. This Court in the afore said case took the view that reappointment of the
Vice -Chancellor need not follow the same process as a fresh appointment by
setting up a selection committee. We may reproduce the relevant observations
made by this Court.
“45. It would be appropriate to also analyze whether the re -
appointment of the V C has to follow the same process as a fresh
appointment, by setting up a selection committee under Section 8(1)
of the Act, as indicated by the Chancellor.
46. Section 8(6) stipulates the manner in which a vacancy in the office
of the V C which occurs by reason of death, resignation, expiration of
the term of office, removal or otherwise shall be filled up. The
provision indicates that such vacancy shall be filled up in accordance
with the provisions of sub -Section (1) of Section 8 of the Act . Section
8(6) has to be read in conjunction with Section 8(1) since the former
expressly refers to the latter. The reference to the provisions of sub -
Section (1) for filling up a vacancy on the expiration of the term of
office will not obviously apply to a case of reapp ointment because the
procedure contemplated by Section 8(1)(b) of a search committee
would not attach to a reappointment. On this aspect, the High Court
has correctly disagreed with the petitioner before it and noted that
amended Section 8(2)(a) which provides for the re -appointment of a
VC for another term does not require that the procedure prescribed in
Section 8(1) has to be followed for re -appointment ”
(Emphasis supplied)
64. We are conscious of the fact, that in Anindya Sundar Das (supra) the afore -
stated line of reasoning was adopted by this Court in view of the amendment that
was carried out whereby the original expression “ subject to provisions of this
section ” in the provision dealing with reappointment was deleted, in other words,
by virtue of such amendment the reappointment was no longer subject to the
provision / section detailing the ordinary procedure for appointment of Vice -
Chancellor , and thus , this Court had no hesitation in holding that the legislature’s
intent was to allow reappoi ntment by the Chancellor itself without following the
ordinary process of appointment.
65. In the case at hand, sub -section (10) of Section 10 of the Act, 1996 , provides
for reappointment and does not even contain the words “ subject to provisions of
this section ”. This in our opinion is as good as to reflect the legislature’s intention
of permitting reappointment without following the ordinary process of
appointment of V ice-Chancellor .
66. Thus, we hold that it is not necessary to follow the procedure of
appointment as laid down in Section 10 of the Act 1996 for the purpose of
reappointment .
iv) Did the Chancellor abdicate or surrender his statutory power of
reappointment of the Vice -Chancellor ?
67. Before we proceed to answer the question whether the Chancellor abdicated
or surrendered his statutory power of reappointment , we must try to understand
the stance of the Chancellor in the present litigation as discernible from the
counter -affidavit filed by him. We are quite perplexed with the stance of the
Chancellor. The Chancellor wants this Court to allow the appeal and declare that
the reappointment of the respondent No. 4 as Vice -Chancellor is not sustainable
in law. The Chancellor say s so because according to him the reappointment of the
respondent No. 4 is in conflict with the UGC Regulations.
68. The UGC Regulations are enacted by the UGC in exercise of powers under
Sections 26(1)(e) and 26(1)(g) of the UGC Act 1956. The Regulations framed
under the said Act, are laid before each House of the Parliament. Therefore, being
a subordinate legislation, the UGC Regulations become s a part of the Act. In case
of any conflict between the State legislation and the Central Legislation, the
Central Legislation shall prevail by applying the rule/principle of repugnancy as
enunciated in Article 254 of the Consti tution as the subject “Education” is in the
Concurrent List ( Entry No. 25 of List III) of the VII Schedule of the Constitution.
Therefore, any appointment or reappointment as a Vice -Chancellor contrary to
the provisions of the UGC Regulations could be said to be in violation of the
statutory provisions. However, the moot question is whether in the present case,
there is any conflict between the State Legislation and the UGC Regulations ? The
UGC Regulations more particularly the Regulation 7.3 which , we have referred
to in the earlier part of our judgment only talks about appointment of Vice -
Chancellor. The UGC Regulations provide for the procedure to be adopted for
appointment of Vice -Chancellor. The UGC Regulations are silent in so far as
reappointment of the Vice -Chancellor is concerned. There is no specific
procedure prescribed by the UGC under its regulations for the purpose of
reappointment of Vice -Chancellor. The entire focus of the Chancellor is on the
aforesaid. However, nothing has been said in the counter -affidavit filed on behalf
of the Chancellor as regards Chancellor’s own independent satisfaction or
judgment for the purpose of reappointment of the respondent No. 4 as Vice -
Chancellor.
69. It is in such circumstances that we have thought fit to pose a question
whether the Chancellor abdicated his statutory power?
70. It has been stated by Wade and Forsyth in Administrative Law , 7th Edn. at
pp. 358 -59 under the heading “ Surrender, Abdication, Dictation ” and sub -heading
“Power in the wrong hands ” as below:
“Closely akin to delegation, and scarcely distinguishable from it in
some cases, is any arrangement by which a power conferred upon one
authority is in substance exercised by another. The proper authority
may share its power with someone else, or may allow someone else to
dictate to it by declining to act without their consent or by submitting
to their wishes or instructions. The effect then is that the discretion
conferred by Parliament is exercised, at least in part, by the wrong
authority, and the resulting decision is ultra vires and void. So strict
are the courts in applying this principle that they condemn some
administrative arrangements which must seem quite natural and
proper to those who make them….
Ministers and their departments have several times fallen foul of the
same rule, no doubt equally to their surprise….”
(Emphasis supplied)
71. It is a well settled (and indeed, bedrock) principle of administrative law that
if a statute expressly confers a statutory power on a particular body or authority
or imposes a statutory duty on the same, then such power must be exercised or
duty performed (as the case may) by that very body or authority itself and none
other. If the body or authority exercises the statutory power or performs the
statutory duty acting at the behest, or on the dictate, of any other body or person,
then this is regarded as an abdication of the statutory mandate and any decision
taken on such basis is contrary to law and liable to be quashed. It is important to
keep in mind that, in law, it matters not that the extraneous element is introduced
(i.e., the advice, recommendation, approval, etc. of the person not empowered by
the statute is obtained or given) in good faith or for the advancement of any goal
or objection howsoever laudable or desirable. The rule of law requires that a
statutory power vests in the body or authority wh ere the statute so provides, and
likewise, the discharge of the statutory duty is the responsibility of the body or
authority to which it is entrusted. That body or authority cannot merely
rubberstamp an action taken elsewhere or simply endorse or ratify the decision of
someone else.
72. The concept of discretionary power and the mode of its exercise by
statutory functionaries was an issue considered by this Court in Union of India v.
Kuldeep Singh reported in (2004) 2 SCC 590, where in paragraphs 20, 21 and 22,
it was held thus;
“20. When anything is left to any person, judge or Magistrate to be
done according to his discretion, the law intends it must be done with
sound discretion, and according to law. (See Tomlin's Law
Dictionary). In its ordinary meaning, the word “discretion” signifies
unrestrained exercise of choice or will; freedom to act according to
one's own judgment; unrestrained exercise of will; the liberty or
power of acting without control other than one's own judgment. But,
when applied to public functionaries, it means a power or right
conferred upon them by law, of acting officially in certain
circumstances according to the dictates of their own judgment and
conscience, uncontrolled by the judgment or conscience of oth ers.
Discretion is to discern between right and wrong; and therefore,
whoever hath power to act at discretion, is bound by the rule of reason
and law. (See Tomlin's Law Dictionary.)
21. Discretion, in general, is the discernment of what is right and
proper. It denotes knowledge and prudence, that discernment which
enables a person to judge critically of what is correct and proper
united with caution; nice discernment, and judgment dir ected by
circumspection; deliberate judgment; soundness of judgment; a
science or understanding to discern between falsity and truth, between
wrong and right, between shadow and substance, between equity and
colourable glosses and pretences, and not to do according to the will
and private affections of persons. When it is said that something is to
be done within the discretion of the authorities, that something is to
be done according to the rules of reason and justice, not according to
private opinion; according to law and not humour. It is to be not
arbitrary, vague and fanciful, but legal and regular. And it must be
exercised within the limit, to which an honest man, competent to the
discharge of his office ought to confine himself (per Lord Halsbury,
L.C., in Sharp v. Wakefie ld [(1891 AC 173: (1886 -90) All ER Rep 651
(HL)]. (Also See S.G. Jaisinghani v. Union of India (A IR 1967 SC
22. The word “discretion” standing single and unsupported by
circumstances signifies exercise of judgment, skill or wisdom as
distinguished from folly, unthinking or haste; evidently therefore a
discretion cannot be arbitrary but must be a result of judicial thinking.
The word in it implies vigilant circumspection and care; therefore,
where the legislature concedes discretion it also imposes a heavy
responsibility ….”
(Emphasis supplied)
73. Again, in Clariant International Ltd . and Another v. Securities &
Exchange Board of India reported in (2004) 8 SCC 524, this Court reiterated
these principles thus;
“27. In Kruger v. Commonwealth of Australia [(1997) 146 Aus LR
126] it is stated:
“Moreover, when a discretionary power is statutorily conferred
on a repository, the power must be exercised reasonably, for the
legislature is taken to intend that the discretion be so exercised.
Reasonableness can be determined only by reference to the
community standards at the time of the exercise of the discretion and
that must be taken to be the legislative intention.....”
28. The discretionary jurisdiction has to be exercised keeping in view
the purpose for which it is conferred, the object sought to be achieved
and the reasons for granting such wide discretion (See Narendra
Singh v. Chhotey Singh [(1983) 4 SCC 131 : 1983 SCC (Cri) 788 ].
xxx xxx xxx
29. A discretionary jurisdiction, furthermore, must be exercised
within the four corners of the statute. [See Akshaibar Lal (Dr.) v.
Vice-Chancellor, Banaras Hindu University [(1961) 3 SCR 386 : AIR
1961 SC 619 ] and also para 9 -022 of de Smith, Woolf and Jowell:
Judicial Review of Administrative Action, 5th Edn., p.445].”
74. Similar are the principles laid down in Joint Action Committee of Air Line
Pilots' Association of India (ALPAI) and Others v. Director General of Civil
Aviation and Others reported in (2011) 5 SCC 435, where it has been held that :
“26. ... It is a settled legal proposition that the authority which has
been conferred with the competence under the statute alone can pass
the order. No other person, even a superior authority, can interfere
with the functioning of the statutory authority. In a de mocratic set -up
like ours, persons occupying key positions are not supposed to
mortgage their discretion, volition and decision -making authority and
be prepared to give way to carry out commands having no sanctity in
law. Thus, if any decision is taken by a statutory authority at the behest
or on suggestion of a person who has no statutory role to play, the
same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane
Commr. of Bihar [(1969) 1 SCC 308 : AIR 1970 SC 1896 ], Chandrika
Jha v. State of Bihar [(1984)2 SCC 41 : AIR 1984 SC 322 ], Tarlochan
Dev Sharma v. State of Punjab [(2001) 6 SCC 260 : AIR 2001 SC
2524 ] and Manohar Lal v. Ugrasen [(2010) 11SCC 557 : (2010) 4
27. Similar view has been reiterated by this Court in Commr. of Police
v. Gordhandas Bhanji (AIR 1952 SC 16), Bahadursinh Lakhubhai
Gohil v. Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC
1159 ] and Pancham Chand v. State of H.P . [(2008) 7 SCC 117 : AIR
2008 SC 1888 ] observing that an authority vested with the power to
act under the statute alone should exercise its discretion following the
procedure prescribed therein and interference on the part of any
authority upon whom the statute does not confer any jurisdiction , is
wholly unwarranted in law. It violates the constitutional scheme.
28. In view of the above, the legal position emerges that the authority
who has been vested with the power to exercise its discretion alone can
pass the order. Even a senior official cannot provide for any guideline
or direction to the authority under the statute to act in a particular
manner. ”
(Emphasis supplied)
75. In Hardwari Lal , Rohtak v. G.D. Tapase , Chandigarh and
others reported in AIR 1982 P unjab and Haryana 439 (Full Bench ) the powers of
the Governor with respect to the appointment/removal of the Vice -Chancellor of
Maharshi Dayanand University, Rohtak under the Maharshi Dayanand University
(Amendment) Act, 1980 were considered wherein a direction was sought with
regard to th e renewal of the term of the Vice -Chancellor of the said University.
Certain promises had been made in connection with the same while making such
appointment. The Court held that as the Governor was the ex officio Chancellor
of the University, therefore, b y virtue of his office, he was not bound to act under
the aid and advice of the Council of Ministers. Under Article 154 of the
Constitution, the executive powers of the State are vested in the Governor which
may be exercised by him either directly, or through officers subordinate to him,
in accordance with the provisions of the Constitution. Article 161 confers upon
the Governor, a large number of powers including the grant of pardon, reprieves,
respites or re missions of punishment, etc. Such executive power can be exercised
by him only in accordance with the aid and advice of the Council of Ministers.
Article 162 states that the executive power of the State shall extend to all such
matters with respect to whic h the Legislature of the State has the power to make
laws. Therefore, the said provision widens the powers of the Governor. Article
166(3) of the Constitution further bestows upon the Governor the power to make
rules for more convenient transactions of bus iness of the Government of the State
and also for the purpose of allocating among the Ministers of State such business.
There are several ways by which, a power may be conferred upon the Governor,
or qua the Governor, which will enable him to exercise the said power by virtue
of his office as Governor. Therefore, there can be no gainsaying that all the powers
that are exercisable by the Governor by virtue of his office can be exercised only
in accordance with the aid and advice of the Council of Ministers e xcept insofar
as the Constitution expressly, or perhaps by necessary implication, provides
otherwise.
76. Thus, in such a situation, the statute makes a clear -cut distinction between
two distinct authorities, namely, the Chancellor and the State Government. When
the legislature intentionally makes such a distinction, the same must also be
interpreted distinctly, and while dealing with the case of the Vice -Chancellor, the
Governor, being the Chancellor of the University, acts only in his personal
capacity, and ther efore, the powers and duties exercised and performed by him
under a statute related to the University, as its Chancellor, have absolutely no
relation to the exercise and performance of the powers and duties by him while
he holds office as the Governor of t he State.
77. Hardwari Lal (supra) has been referred to and relied upon by this Court
in Bhuri Nath and Others v. State of J &K and Others reported in (1997) 2
SCC 745. In the said case, the question that arose was in relation to whether
the Governor was bound to act in accordance with the aid and advice of the
Council of Ministers, or whether he could exercise his own discretion,
independent of his status and position as the Governor, by virtue of him being
the ex officio Chairman of the Shri Mata Vaishno Devi Shrine Board under
the Shri Mata Vaishno Devi Shrine Act, 1988. The Shrine Board discharges
functions and duties, as have been described under the Act in the manner
prescribed therein, and thus, after examining the s cheme of the Act, this Court
held that, “ In Hardwari Lal case [AIR 1982 P&H 439 : (1982) 1 SLR 39] , a
Full Bench of the Punjab and Haryana High Court was to consider whether
the Governor in his capacity as the Chancellor of Maharshi Dayanand
University was to act under Maharshi Dayanand University Act, 1975
(Haryana Act No. 25 of 1975) in his official capacity as Chancellor or with
aid and advice of the Council of Ministers. The Full Bench, after elaborate
consideration of the provisions of the Act and the statutes, came to observe in
para 121 at p. 476 that the Act and the statutes intended that the State
Government would not interfere in the affairs of the University. The St ate
Government is an authority quite distinct from the authority of the Chancellor.
The State Government cannot advise the Chancellor to act in a particular
manner. The University, as a statutory body, autonomous in character, has
been given certain powers exercisable by the Chancellor in his absolute
discretion without any interference from any quarter. In the appointment of
the Vice -Chancellor or the Pro -Vice-Chancellor, the Chancellor is not
required to consult the Council of Ministers. Though by virtue of his office as
Governor, he becomes the Chancellor of the University, but while discharging
the functions of his office, he does not perform any duty or exercise any power
of the office of the Governor individually. However, while discharging the
functio ns as a Chancellor, he does every act in his discretion as Chancellor
and he does not act on the aid and advice of his Council of Ministers. The
performance of the functions and duties under the Constitution with the aid
and advice of the Council of Minist ers is distinct and different from his
discharge of the powers and duties of his office as Chancellor of the
University. Under the Act and the statute, the Chancellor has independent
existence and exercises his powers without any interference from any quarter.
Therefore, the office as a Chancel lor held by the Governor is a statutory office
quite distinct from the office of the Governor. Same view was taken by the
Andhra Pradesh High Court in Kiran Babu case [AIR 1986 AP 275 : (1986)
78. Bearing the aforesaid pr inciples of law in mind , we proceed to consider
whether there was any independent application of mind or satisfaction on the part
of the Chancellor in reappointing the respondent No. 4 as Vice -Chancellor. The
facts narrated by us in the earlier part of our judgment speak for themselves . The
Chancellor had already initiated the steps for appointment of a new Vice -
Chancellor and this is evident by the fact that a selection committee was also
constituted vide Notification dated 27.10.20 21. It appears that at that point of time
reappointment of the respondent No. 4 as Vice -Chancellor in accordance with
sub-section (10) of Section 10 of the Act 1996 was not in the mind of the
Chancellor.
79. The State of Kerala issued Notification dated 01.11.2021 inviting
applications from eligible candidates. All of a sudden, the Minister for Higher
Education and Social Justice in his capacity as the Pro-Chancellor addressed a
letter to the Chancellor dated 22.11.2021 recommending reappointment of the
respondent No. 4 herein for a second term as Vice -Chancellor. It is also pertinent
to note that on 22.11.2021 itself the notification inviting application from the
eligible candidates was withdrawn. On the same da te, the Minister addressed one
another letter to the Chancellor stating that the respondent No. 4 be reappointed
as Vice -Chancellor of Kannur University. On the very same day i.e., on
23.11.2021 , the notification reappointi ng the respondent No. 4 as Vice -Chancellor
was issued .
80. It appears from the press release issued by the Kerala Raj Bhavan dated
03.02.2022 that the opinion of the Advocate General was also sought for in
connection with reappointment of the respondent No. 4 as Vice -Chancellor. The
very first para of the press release states that “Kerala Raj Bhavan strongly refutes
the claim in some news reports that it was on the direction of Hon'ble Governor
that the name of Dr. Gopinath Ravindran was suggested for reappointment as
Vice Chancellor, Kannur University. The truth is that the same was initiated by
the Chief Minister and Higher Education Minister .” The last part of the report
is also relevant. It states that the process of selection of Vice -Chancellor which
was set in motion vide Notification dated 27.10.2021 came to an end consequent
to the request from the Minister of Higher Education and the opinion of the
Advocate General , State of Kerala.
81. The afores tated facts make it abundantly clear that there was no
independent application of mind or satisfaction or judgment on the part of the
Chancellor and the respondent No. 4 came to be re appointed only at the behest of
the State Government.
82. Under the scheme of the Act 1996 and the statutes, the Chancellor plays a
very important role. He is not merely a titular head. In the selection of the Vice -
Chancellor, he is the sole judge and his opinion is final in all respects. In
reappointing the Vice -Chancellor, the main consideration to prevail upon the
Chancellor is the interest of the university.
83. The Chancellor was required to discharge his statutory duties in accordance
with law and guided by the dictates of his own judgment and not at the behest of
anybody else. Law does not recognise any such extra constitutional interference
in the exercise of statutory discretion. Any such interference amounts to dictation
from political superior and has been condemned by courts on more than one
occasions.
84. It is now well settled that a writ of quo warranto lies if any appointment to
a public office is made in breach of the statute or the rules. In the case on hand,
we are not concerned with the suitability of the respondent No. 4. The “suitability”
of a candidate for appointment to a post is to be judged by the appointing authority
and not by the court unless the appointment is contrary to the statutory
rules/provisions. We have reach ed to the conclusion that although the notification
reappointing the respondent No. 4 to the post of Vice -Chancellor was issued by
the Chancellor yet the decision stood vitiated by the influence of extraneous
consideration s or to put it in other words by the unwarranted intervention of the
State Government.
85. It is the Chancellor who has been conferred with the competence under the
Act 1996 to appoint or reappoint a Vice -Chancellor. No other person even the
Pro-Chancellor or any superior authority can interfere with the functioning of the
statutory authority and if any decision is taken by a statutory authority at the
behest or on a suggestion of a person who has no statutory role to play, the same
would be patently illegal.
86. Thus, it is the decision -making process , which vitiated the entire process of
reappointment of the respondent No. 4 as the Vice -Chancellor. The case on hand
is not one of mere irregularity.
87. We emphasis e on the decision -making process because in such a case the
exercise of pow er is amenable to judicial review.
88. In Chief Constable of the North Wales Police v. Evans reported in (1982)
1 WLR 1155 : (1982) 3 All ER 141 (HL), Lord Brightman observed thus: (WLR
p. 1174 G)
“… Judicial review, as the words imply, is not an appeal from a
decision, but a review of the manner in which the decision was made.”
89. In view of the aforesaid, we allow this appeal.
90. The impugned judgment and order passed by the High Court dated
23.02.2022 is hereby set aside. As a consequence, the Notification dated
23.11.2021 , reappointing the respondent No. 4 as the Vice -Chancellor of the
Kannur University is hereby quashed.
|
The Supreme Court on Thursday quashed the re-appointment of Dr. Gopinath Raveendran as the Vice Chancellor of Kannur University, holding that the Kerala government's unwarranted interference in the matter has vitiated the appointment.
A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra held that only the Chancellor (the Kerala Governor) can make appointments to the post and not even the pro-chancellor can intervene in the matter.
In this case, the Court noted that the Chancellor had, in fact, issued a notification appointing Dr. Gopinath Raveendran to the post. However, even this notification stood tainted by unwarranted interference by the CPI (M)-led Kerala government, the Court opined.
Though the Court agreed with the State's submission that the reappointment was not hit by the age-limit prescription, it quashed the reappointment on the ground of excessive State interference.
The top court, therefore, set aside a February 2022 Kerala High Court order which had upheld the re-appointment of Dr. Raveendran to the post.
"Although the notification of appointment was issued by the Chancellor, but it was vitiated by unwarranted interference by the State government. It is only the Chancellor who can appoint and not even pro chancellor can intervene. If any statutory authority interferes then it would be patently illegal. Thus the appointment was vitiated by the interference by the State. We allow the appeal and the High Court order is set aside. Thus the notification of Nov 2021 re-appointing (Dr. Raveendran) as VC of Kannur University is quashed," the Supreme Court said.
The 2021 re-appointment of Dr. Raveendran as the Vice Chancellor of Kannur University was challenged on the ground that he was past the statutory age-limit of 60 years at the time of his re-appointment since he was 61 at the time of his reappointment (being born on December 19, 1960).
His re-appointment was defended on the ground that he was within the age limit when he was appointed for the first time. The said age limit would not apply when it comes to his second appointment, it was argued.
The Supreme Court agreed with this submission, holding that the age limit would not apply for "re-appointments"
"It is not necessary that there cannot be a re-appointment in a tenure post. The outer limit of 61 years will not apply as in the re-appointment process. We have also held that the process of re-appointment need not be similar as a fresh appointment of a Vice-Chancellor," the Supreme Court said.
Nevertheless, the manner in which the State government had acted throughout the episode ultimately led the top court to quash Dr. Raveendran's re-appointment in this case.
"We have relied on the press reports, we have held that it is now well settled that writ of quo warranto lies if an appointment is in breach of a statute," the Court said while pronouncing its verdict.
The re-appointment of Dr. Raveendran as the Kannur Vice-Chancellor had been embroiled in political controversy.
After he was re-appointed, the Kerala Governor, Mohammed Arif Khan, claimed that he was pressured by the CPI-M led State government to sign off on the re-appointment and that there was excessive executive interference in University appointments.
The Governor also later alleged that Dr. Raveendran was part of a conspiracy to attack him (Arif Khan) when he visited the Kannur University campus.
Allegations also arose that Dr. Raveendran's re-appointment was made without following the usual norms applicable for appointments to this post.
In December 2021, a single-judge of the Kerala High Court upheld the appointment. This verdict was affirmed by a division bench of the High Court in February 2022, following which the case reached the Supreme Court.
The Supreme Court allowed the appeal against the High Court's decisions in the matter.
|
ivil Appeal Nos.
636 639 of 1971.
From the Judgment and Order dated 14.5.1963 of the Allahabad High Court in F.A. Nos.
239/1945, 171/1946, 239/1945, and 171/46 respectively.
V.K.S. Chaudhury, V.V. Misra.
S.S. Khanduja, A.S. Pundir, Dhirendrajit Singh, Mahfooz Khan and Y.P. Dhingra for the Appellants, in C.A. Nos.
636 37 of 1971.
V.K.S. Chaudhury and B.P. Maheshwari for the Appellants in C.A. Nos.
638 39 of 1971.
Vinoo Bhagat for the Lrs. of Appellant No. 1 in C.A. Nos.
638 39 of 1971.
J.P. Goyal, V.K. Verma, Rajash, Raghunath Singh, M.P. Jha, and T.C. Sharma for the Respondents.
The Judgment of the Court was delivered by Misra J.
These appeals by certificate are directed against the common judgment and order of the High Court of Judicature at Allahabad dated May 14, 1963.
As the appeals raise common questions of fact and law they are being disposed of by a common judgment.
The circumstances leading up to these appeals are as follows.
One Lala Gurdin acquired considerable landed property in villages Patara, Mubarakpur Lata, Madanpur, Gosra and Jeora Nawabganj in Kanpur.
He had no male issue.
He died on December 10, 1861 leaving behind his widow Smt.
Amrit Kuer and three daughters: Smt.
Hazaro Kuer from his predeceased wife, and Smt.
Mewa Kuer and Smt.
Prago Kuer from Smt.
Amrit Kuer.
After the death of Gurdin his entire estate came into the hands of his widow, Smt.
Amrit Kuer.
Amrit Kuer also died on August 1, 1880.
During her life time she made certain alienations but those alienations are not relevant in the present appeals.
After her death the three daughters of Lala Gurdin succeeded to the estate left by Smt.
Amrit Kuer, as limited owners.
Soon after the succession the three daughters divided the property amongst themselves and they came in possession of 722 one third share each.
When Smt.
Prago Kuer, one of them, died on July 8, 1907 the estate remained with the two surviving daughters.
When Smt.
Hazaro Kuer, the other daughter, died on January 24, 1914 the estate remained in possession of Smt.
Mewa Kuer, the last surviving daughter.
She also died on June 14, 1923.
During their life time the three daughters had been making various alienations of the property that fell to their exclusive share.
Mewa Kuer also made a number of alienations in favour of different persons at different times.
We are concerned in the present appeals with sale deeds dated July 27, 1901; July 17, 1914 and October 19, 1915.
The sale deed dated July 27, 1901 was executed by Smt.
Mewa Kuer to one Ram Narain in respect of the entire Mahal Mewa Kuer and 2 anna 8 pie share in Mahal Katri.
Ram Narain 's successors in their turn sold the suit property by means of two sale deeds one dated July 14, 1919 in favour of Rai Sahib Lala Gopi Nath who is dead and is represented by defendants 19 to 23 in suit No. 25 of 1935 and the other dated January 2, 1920 in favour of Brahmvart Sanathan Dharam Mahamandal, Kanpur, hereinafter referred to as the trust, and arrayed as defendant No. 8 in suit No. 25 of 1935.
Mewa Kuer further executed a sale deed on July 17, 1914 in favour of two brothers, Kundan Lal Tiwari and Balbhadar Tiwari, hereinafter referred to as the Tiwari brothers, in respect of nine specific plots in Mahal Hazaro Kuer.
Ram Dayal son of Smt.
Mewa Kuar also joined Smt.
Mewa Kuer in the execution of this sale deed.
Tiwari brothers in their turn sold some of the property to Gopi Nath on February 21, 1920.
Tiwari brothers also executed a gift deed dated October 12,1919 in respect of 8 bighas and odd pertaining to Mahal Prago Kuer and 5 bighas and 16 biswas in Mahal Hazaro Kuer to the aforesaid trust.
Mewa Kuer and Ram Dayal again executed a sale deed dated October 19, 1915 in respect of 8 anna share in Mahal Prago Kuer and one anna 4 pie share in Mahal Katri to defendants 4 and 5 in suit No. 25 of 1935.
After the death of Smt.
Mewa Kuer, the last surviving daughter, on July 14, 1923 the succession opened in favour of daughters ' sons of Lala Gurdin, Maharaj Bahadur and Bijay Bahadur, the sons of Smt.
Hazaro Kuer, and Ram Dayal the son of Smt.
Mewa Kuer.
Ram Dayal also died in 1931 leaving behind his son Madho Dayal.
After 723 the death of Ram Dayal the reversioners sought to challenge the various alienations made by the limited owners, some by Smt.
Amrit Kuer and the others made by the daughters of Lala Gurdin.
Suit No. 25 of 1935 was filed by Kunwar Maharaj Bahadur and Kunwar Bijay Bahadur along with their financier Sukhraj Bux Singh for possession in respect of their two third share of the property, for demolition of the valuable constructions raised on the said property and for recovery of mesne profits against the transferees or the subsequent purchasers from those transferees.
Suit No. 34 of 1935 was filed by Madho Dayal son of Ram Dayal for the same reliefs in respect of the remaining one third share.
The alienations were challenged by the plaintiffs on the allegations that there was no legal or pressing necessity for the transfers and that transfer by one of the daughters without the consent of the remaining daughters was void ab initio and no title passed on to the transferees.
It was further alleged that the transferees from the limited owners themselves had no valid title and so they could not pass a better title to others and thus those transfers were also bad.
The suits were contested by the various defendants by filing separate written statements.
It is, however, not necessary to give details of the various written statements filed in the case, suffice it to say that the defence in the main was that the transfers were for legal and pressing necessity and that there has been a complete partition amongst the three daughters of Lala Gurdin and each one of them was in separate possession of one third share of the estate and, therefore, each was competent to transfer the property without the consent of the other limited owners, that some of the defendants viz. the trust, defendant No. 8 in suit No. 25 of 1935 had raised a double storied building of Sanatan Dharam Degree College, Principal 's quarter, quarters for the teachers, hostel for the students, dispensary and library building at a heavy cost of rupees 4 to 5 lacs.
Likewise defendants Nos. 19 to 23 in suit No.25 of 1935 had raised a costly residential building, swimming pool etc.
at a cost of more than a lac of rupees.
It was further asserted that the transfer by one daughter without any objection from the other daughters will be presumed to have been made with the consent of the other daughters.
The defendants also sought the protection of section 43 of the Transfer of Property Act inasmuch as after the death of the two daughters Smt.
Mewa Kuer became the sole heir and the transfers made by her during the life time of other daughters will be protected on the equitable principle of feeding the grant by estoppel.
The 724 Additional Civil Judge who tried the suit found that sale deed dated 27th July 1901 was for legal necessity but as it was executed without the consent of the other two daughters it was invalid and not binding on the plaintiffs.
As regards the sale deeds dated July 17, 1914 and October 19, 1915 the learned Judge found them to be for legal necessity.
These sale deeds had been executed by Smt.
Mewa Kuer when her two sisters had died.
Consequently the trial court dismissed suit No. 25 of 1935 in respect of the sale deeds dated July 17, 1914 and October 19, 1915.
This suit was, however, decreed against defendants Nos. 19 and 20 to 23 for recovery of Rs. 3200 in respect of the plaintiffs share on the present market value of the land of Khata Khewat No. 4 (area 8 bighas) Mahal Mewa Kuer, village Jeora Nawabganj and for recovery of Rs. 10,200 as plaintiffs two third share on the present market value of the 30 plots (total area 15 bighas 17 biswas) entered as Khata Khewat No. 7 of Mahal Mewa Kuer, village Jeora Nawabganj as against the trust, defendant No. 8.
Those defendants were directed to pay the said amounts within six months of the judgment becoming final.
In case of default the plaintiffs shall become entitled to recover the said amount.
The learned Judge did so in view of section 51 of the Transfer of Property Act on the ground that those defendants had made valuable constructions as bona fide purchasers.
The learned Judge has recorded findings with respect to various other transfers against various defendants but they are not relevant for the purposes of the present appeals.
Suit No. 34 of 1935 filed by Madho Dayal in respect of his one third share was also partly decreed and partly dismissed.
As against defendant No. 8, the trust, it was decreed for recovery of Rs. 5100 as plaintiffs one third share on the present market value of 30 plots (total area 15 bighas 17 biswas) entered as Khata Khewat No. 7 of Mahal Mewa Kuer village Jeora Nawabganj.
It was also decreed against defendants Nos. 21 and 22 to 25 for recovery of Rs. 1600 on account of one third share of plaintiffs on the present market value of the land of Mahal Mewa Kuer, village Jeora Nawabganj.
But it was dismissed in respect of Mahal Hazaro Kuer and Mahal Prago Kuer of village Jeora Nawabganj as the plaintiffs ' father was also an executant of the sale deeds along with Mewa Kuer.
The judgment of the learned Judge gave rise to appeals by the plaintiffs and cross objections by the present defendants appellants 725 against that part of the judgment and decree which went against them.
The High Court reversed the finding of the trial court with regard to the sale deeds dated July 17, 1914 and October 19, 1915 and held that they were not for legal and pressing need.
It, however, confirmed the finding of the trial court with regard to sale deed dated July 27, 1901 but held that the plaintiffs should be given an opportunity to make an election under section 51 of the Transfer of Property Act, as to whether they would like to pay the compensation for the super structures standing on the land in question or to sell their share in the land.
Consequently, the High Court allowed the appeals of the plaintiffs in part and remanded the case to the trial court to afford an opportunity to the plaintiffs to make election under section 51 of the Transfer of Property Act.
As the sale deeds dated July 17, 1914 and October 19, 1915 were not for legal necessity the subsequent transfers made by the transferees of Mewa Kuer were also bad.
Shri V.K.S. Choudhury assisted by Shri S.S. Khanduja contended that: 1 The High Court erred in holding that the alienations made by one daughter to the exclusion of the other daughters was a bad transfer inasmuch as: (a) the property having been divided by the three daughters the alienation made by one of them for legal necessity was valid and binding on the other, and (b) the property having been divided there was implied consent of the other daughters for alienations.
2 The sale by one daughter without the consent of the other in any case is not void but voidable.
3 The appellants in any case were entitled to the protection of section 43 of the Transfer of Property Act.
4 The High Court erred in interfering with the exercise of discretion of the trial court under section 51 of the Transfer of Property Act.
726 5 In any case the High Court erred in directing the determination of market value of the property on the date of choice and not on the date of the transfer.
In support of his first contention that the transfer by one daughter without the consent of the other daughters was valid the learned Counsel sought to rely upon the original texts.
Shri J.P. Goel, counsel for the plaintiff respondents, however, supported the judgment of the High Court by referring to the Privy Council decisions of this Court.
As the point involved in this case is no more res integra but has been well settled by the decisions of the Privy Council and of the Indian High Courts we did not permit the counsel to enter into archaeological survey of the original text books.
The learned counsel for the appellants, however, tried to distinguish those cases on the ground that those cases mostly were the cases of co widows but in the instant case we are concerned with the transfers made by the daughters.
In our opinion what is applicable to co widows is equally applicable to the case of daughters.
No distinction can be made on that account.
The Hindu Law by M.R. Raghavachariar, 5th Edn.
1965, p. 585 summarised the legal position in the following terms: "Where two widows succeed as co heiresses to their husband 's estate, one of them cannot alienate the property without the consent of the other even though the alienation is for the necessity of the estate.
They are entitled to obtain a partition of separate portions of the property and deal as each pleases with own life interest, but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the survivor or a future reversioner.
If they act together, they can burden the reversion with any debts contracted owing to legal necessity, but one of them acting without the authority express or implied of the other cannot prejudice the right of survivorship by burdening or alienating any part of the estate.
The mere fact of partition between the two, while it gives each a right to the fruits of separate estate assigned to her, does not imply a right to prejudice the claim of the survivor to enjoy the full fruits of the property during her lifetime and a mortgage by a Hindu widow even for necessary purposes, when she has not even asked 727 her co widow to consent to the granting of the mortgage, is not binding upon the joint estate so as to affect the interest of the surviving widow, and the mere fact that there has been enmity between the co widows is no justification for the failure to ask the consent of the co widow.
But in cases where the concurrence of a co widow has been asked for to a borrowing by the other for necessary purposes and unreasonably refused, a mortgage for such debt granted only by one widow might be held binding on what may be termed the corpus of the estate.
" The question of alienation and co widows has been exhaustively considered with reference to the whole case law thereon in a decision of the Madras High Court in Appalasuri vs Kannamma referred to with approval by the Privy Council in Gauri Nath Kakaji vs Mt. Gaya Kuer in which following propositions of law were laid down: (1) The estate of co widows or other co heiresses in Hindu Law is a joint estate, but it is unlike other joint estates.
It is indivisible.
Strictly it can never be divided, so as to create separate estates such that each sharer is the owner of her share and at her death, the reversioner 's estate falls in.
Such a division is impossible in law.
(2) Such partition as is permissible is merely for the convenience of their enjoyment by the sharers; (i) so as to last during the lifetime of both the widows; (ii) so as to bind them until the death of all of them.
In the latter case, if one of the widows dies before the other, without alienating the property, it passes to the heirs of her private property and not to the other co widow, or their reversioners.
728 (3) By the very nature of the arrangement, there can be no survivorship, if the partition is of the second kind.
But if it is of the first kind, it cannot affect the right of survivorship of other.
(4) One of the co widows can alienate her share, which may be defined or undefined, according as there is a partition or not.
If the alienor dies before the co widow, the alienation ceases to be operative, if there is no partition, or if the partition is of the first kind, the property goes to the co widow by survivorship.
But if the partition is of the second kind, the property continues to be enjoyed by the alienee until the other co widow dies.
(5) Except for the limited purposes mentioned above, i.e., during the lifetime of the alienor in a partition of the first kind, or during the lifetime of all the co widows in a partition of the second kind, there can be no alienation by a widow of her interest, and whether there is necessity or not, an alienation by one co widow cannot bind the reversioner.
(6) If an alienation for necessity is to bind the reversioners, all the co widows must join in it.
" In this view of the legal position it is not open to the counsel for the appellant to take up the matter afresh by referring to the original texts.
The general law is now so well settled that it scarcely requires restatement.
If a Hindu dies leaving behind two widows they succeed as joint tenants with a right of survivorship.
They are entitled to obtain partition of the separate portions of property so that each may enjoy her equal share of the income accruing therefrom.
Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the right of survivorship or a future reversioner.
If they act together they can burden the reversion with any debts owing to legal necessity but one of them acting without the authority of the other cannot prejudice the right of survivorship by alienating any 729 part of the estate.
The mere fact of partition between the two while it gives each a right to fruits of separate estate assigned to her, it does not imply a right to prejudice the claim of the survivor to enjoy full fruits of the property during her lifetime.
It was, however, contended for the appellants that in the circumstances of the present case consent of the other daughters will be presumed.
The alienations made by the daughters separately to different persons was never challenged by the other daughters.
Even the reversioners did not challenge those alienations during the lifetime of their mothers and they sought to challenge the alienations long after the death of the last limited owner Smt.
Mewa Kuer in 1923 and even if the partition between the daughters had no effect on the reversion it can safely be presumed that the transfer made by one of the daughters of the property exclusively in her possession had the consent of the other.
We find considerable force in this contention.
This aspect of the case has been completely lost sight of by the High Court.
The transfer made by one daughter without the consent of the other is only voidable at the instance of the other co limited owners or at the instance of the reversioners.
In any case Smt.
Mewa Kuer after the death of her two sisters came into exclusive possession of the entire estate left by Smt.
Amrit Kuer, widow of Lala Gurdin.
Therefore, the transferees would be entitled to the protection of section 43 of the Transfer of Property Act which substantially amounts to satisfying the equitable principle of `feeding the grant by estoppel '.
This question however loses its importance if once we presume the consent of the other sisters in the circumstances of the present case.
It was contended for the appellants that the plaintiffs had accepted the amount evaluated by the trial court for the land before the filing of the appeal in the High Court and, therefore, it was not open to the plaintiffs to challenge the amount of compensation fixed by the trial court, and in any case the amount of compensation could not be fixed at the market value prevailing at the time of making the choice because the prices of constructions and the lands had gone exorbitantly high and it will not be possible either for the plaintiffs or for the defendants to pay the price according to the present market value.
No wonder in these circumstances the plaintiffs accepted the amount of the compensation fixed by the trial court.
730 The counsel for the respondents, however, contends that the acceptance of the amount fixed by trial court was without prejudice to their rights and, therefore, they cannot be estopped from challenging the same.
In view of the fact that the trust has made valuable constructions involving a cost of 5 to 6 lakh rupees of the college building, the principal 's quarters, teachers quarters, hostel, library, dispensary etc., in our opinion it will be inequitable in the circumstances of the case to ask the appellants to pay the present market value of the land.
The acceptance of the amount by the plaintiffs determined by the trial court will itself amount to making a choice within the meaning of section 51 of the Transfer of Property Act.
From the materials on record and the attending circumstances it is obvious that a the reversioners were neither in a position to pay for the improvements nor inclined to do so and this is why they accepted the amount determined by the trial court.
In the circumstances of the case we are satisfied that the High Court was not justified in remanding the case to the trial court to afford another opportunity to the plaintiffs to make a fresh choice.
The learned counsel half heartedly sought to challenge the finding of the High Court in respect of the sale deeds dated July 17, 1914 and October 19, 1915 on the ground that it had lost sight of the reasons given by the trial court for holding that those transfers will be presumed to have been executed for legal necessity in view of the circumstances enumerated by the trial court.
What quantum of evidence will satisfy a particular court to come to a conclusion is entirely in the discretion of the court.
It is not possible to interfere with the finding of the High Court with regard to the two sale deeds dated July 17, 1914 and October 19, 1915.
For the foregoing discussion the appeals must succeed.
They are accordingly allowed in part and the judgment of the High Court remanding the case to the trial court for affording another opportunity to the plaintiff respondents to make election is set aside and the judgment of the trial court with regard to sale deed dated July 27, 1901 is restored.
There is, however, no order as to costs.
S.R. Appeal partly allowed.
|
One Lala Gurdin, who had acquired extensive landed property in Kanpur died on December 10, 1861 leaving behind his widow Smt.
Amrit Kuer and three daughters: Smt.
Hazarao Kuer from his predeceased wife, and Smt.
Mewa Kuer and Smt.
Prago Kuer from Smt.
Amrit Kuer.
After the death of Gurdin his entire estate came into the hands of his widow Smt.
Amrit Kuer and after her death on August 1,1880, the three daughters of Lala Gurdin succeeded to the estate left by Smt.
Amrit Kuer, as limited owners.
They divided the property amongst themselves, each coming into possession of one third share.
When Smt.
Prago Kuer died on July 8, 1907 the estate remained with the two surviving daughters.
When Smt.
Hazaro Kuer died on January 24, 1914 the estate remained in possession of Smt.
Mewa Kuer, the last surviving daughter.
She also died on June 14,1923.
During their life time the three daughters had been making various alienations of the property that fell to their exclusive share.
Amongst a number of alienations in favour of different persons at different times, three sale deeds dated July 27,1901; July 17, 1914 and October 19,1915 are the subject matter of the appeals and the property covered by the 1901 and 1914 sale deeds are in possession of the appellants trust while the properties covered by the 1915 sale deeds are in the possession of Defendants 4 & 5 of Suit No. 25 of 1935.
The 1914 and 1915 sale deeds were jointly executed by Smt.
Mewa Kuer and her son Ram Dayal.
After the death of Smt.
Mewa Kuer in 1923, her surviving reversioners sought to challenge the various alienations made by the limited owners, some by Smt.
Amrit Kuer and the others made by the daughters of Lala Gurdin by way of two Suits Nos.
25 of 1935 filed by the two sons of Smt.
Hazaro Kuer and Suit No. 34 of 1935 filed by Madho Dayal son of Ram Dayal, on the 719 allegations (i) that there was no legal or pressing necessity for the transfers; (ii) that transfer by one of the daughters without the consent of the remaining daughters was void ab initio and no title passed on to the transferees; and (iii) transferees from the limited owners themselves had no valid title and so they could not pass a better title to others and thus those transfers were also bad.
The suits were contested by the transferees in possession seeking protection of section 43 of the Transfer of Property Act on the equitable principle feeding the Grant by estoppel in as much as even if there was any defect in the of title Mewa Kuer, the same has ceased when her two other sisters died and she become the sale Survivor.
The Additional Civil Judge found that, while sale deeds of 1914 and 1915 were for legal necessity as they had been executed by Smt.
Mewa Kuer when her two sisters had died, the sale deed dated 27th July, 1901 was also for legal necessity but as it was executed without the consent of the other two daughters it was invalid and not binding on the plaintiffs respondent.
Consequently the Trial Court dismissed Suit No. 25 of 1935 in respect of the sale deeds of 1914 and 1915, and partly decreed the suit pertaining to 1901 sale deed in view of the provisions of section 51 of the Transfer of Property Act in as much as these defendants appellants had made valuable constructions as bona fide purchasers and they were entitled to the market value of the constructions.
Suit No 34 of 1935 was also partly decreed and partly dismissed.
In the appeals filed by the present respondents plaintiffs and after perusing the cross objections filed by the present defendants appellants, the High Court reversed the finding of the trial court with regard to sale deeds of 1914 and 1915 held that they were not for legal and pressing need; and while confirming the finding of the trial court with regard to sale deeds dated July 27, 1901 further held that the present plaintiffs respondents should be given an opportunity to make an election under section 51 of the Transfer of Property Act, as to whether they would like to pay the compensation for the superstructures standing on the land in question or to sell their share in the land.
Consequently, the High Court allowed the appeals of the plaintiffs respondents in part and remanded the case to the trial court to afford an opportunity to the plaintiff to make election under section 51 of the Transfer of Property Act.
It was further held that the sale deeds of 1914 and 1915 being not for legal necessity the subsequent transfers made by the transferees of Mewa Kuer were bad.
Hence the appeals by certificate.
Allowing the appeals in part, the Court ^ HELD 1.1 If a Hindu dies leaving behind two widows they succeed as joint tenants with a right of survivorship.
They are entitled to obtain partition of the separate portions of property so that each may enjoy her equal share of the income accruing therefrom.
Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of estate by gift or will so as to prejudice the right of survivorship or a future reversioner.
If they act together they can burden the reversion with any debts owing to legal necessity but one of them acting without the authority of the other cannot prejudice the 720 right of servivorship by alienating any part of the estate.
[728 G H] 1.2 The mere fact of partition between the two while it gives each a right to fruits of separate estate assigned to her, it does not imply a right to prejudice the claim of the survivor to enjoy full fruits of the property during her life time.
What is applicable to co widows is equally applicable to the case of daughters.
No distinction can be made on that account.
[726 C D, 729 A B] Gauri Nath Kakaji vs Mt. Gaya Kuer, followed.
Appalasuri vs Kannamma, approved.
2.1 The transfer made by one daughter without the consent of the other is only voidable at the instance of the other co limited owners or at the instance of the reversioners.
[729 D E] 2.2 Here, the alienations made by the daughters separately to different persons was never challenged by the other daughters.
Even the reversioners did not challenge those alienations during the life time of their mothers and they sought to challenge the alienations long after the death of the last limited owner Smt.
Mewa Kuer in 1923 and therefore, even if the partition between the daughters had no effect on the reversion it can safely be presumed that the transfer made by one of the daughters of the property exclusively in her possession had the consent of the other.
Further in any case Smt.
Mewa Kuer after the death of her two sisters came into exclusive possession of the entire estate left by Smt.
Amrit Kuer, widow of Lala Gurdin.
Therefore, the transferees would be entitled to the protection of section 43 of the Transfer of Property Act which substantially amounts to satisfying the equitable principle of 'feeding the grant by estoppel '.
[729 B C, D E] 2.3 In view of the fact that the trust has made valuable constructions involving a cost of 5 to 6 lakh rupees of the college building, the principal 's quarters, teacher 's quarters, hostel, library, dispensary etc.
it will be inequitable in the circumstances of the case to ask the appellants to pay the present market value of the land.
The acceptance of the amount by the plaintiffs respondents as determined by the trial court will itself amount to making a choice within the meaning of section 51 of the Transfer of Property Act.
From the materials on record and the attending circumstances it is clear that the reversioners were neither in a position to pay for the improvements nor inclined to do so and this is why they accepted the amount determined by the trial court.
Therefore, the High Court was not justified in remanding the case to the trial court to afford another opportunity to the plaintiffs to make a fresh choice.
[930 B D] 3.
What quantum of evidence will satisfy a particular court to come to a conclusion is entirely in the discretion of the Court, and therefore, the finding of the High Court with the regard to the two sale deeds of 1914 and 1915 cannot be interfered with.
[930 E F] 721
|
The petitioners were appointed on various posts with the
respondent Bank No.3-Central Co-Operative Bank Ltd. During the
tenure of their services, the respondent Bank passed a resolution
dated 25.05.2010, whereby, the superannuation age of the
employees was reduced from 60 years to 58 years. The said
resolution was challenged in S.B. Civil Writ Petition No.
5332/2010, which was decided on 05.07.2011 and the
respondent Bank was directed to reconsider the age of retirement
and also to continue with the services of the employees. In
pursuance to the directions of this Court, the respondent Bank
reconsidered the issue but again took a resolution to fix the age of
superannuation at 58 years. As a consequence, the petitioners
stood retired.
The resolution dated 18.07.2011 was again challenged and
vide interim order dated 06.09.2011, the effect and operation of
the resolution was stayed. In consequence thereof, the petitioners
were allowed to resume their duties.
During the pendency of the writ petitions, the Bank again
took a resolution to increase the age of superannuation from 58
years to 60 years. The statement to that effect was made before
the Court on behalf of the respondent Bank and in view of the
submission made, the petitions of the petitioners were dismissed
as having become infructuous.
Meanwhile, the petitioners after completing the age of 60
years, superannuated.
The grievance in the present writ petition of the petitioners is
that they were not paid the salary of the period during which they
remained out of service because of the resolutions being passed
by the Bank.
The period during which the petitioners remained out of
Kailash Chandra 10980/2017 21.07.2011 to
Jagdish Prasad Sharma 10810/2017 01.02.2011 to
Bhagwati Lal 10926/2017 21.07.2011 to
Jaidev Devpura 10928/2017 21.07.2011 to
Bhagchand Jain 12158/2017 21.07.2011 to
Learned counsel for the petitioners has averred that it was
only on the basis of the submission made by the Bank that the
earlier writ petition was rendered as infructuous as the Bank had
promised the consequential benefits also in pursuance to the
Learned counsel for the petitioner has relied upon the
judgment passed in Civil Appeal No. 5527/2012 ; State of
Uttar Pradesh v. Dayanand Chakrawarty & Ors. He has
submitted that the employees had remained out of service only
because of the wrong decision taken by the Bank and not because
of any fault on their part.
Learned counsel has stated that even while passing the
interim order dated 06.09.2011 in the earlier writ petition (S.B.
Civil Writ Petition No. 7263/2011), the issue pertaining to the
arrears was kept pending by the Court for decision at the time of
final hearing. But because of the petition being dismissed as
infructuous, the same could not be decided at that stage.
Learned counsel further submitted that two employees
namely Kailash Chandra Shotriya and Harish Chandra Joshi have
been paid the arrears of salary of the disputed period by the Bank
and the present petitioners have been denied the same without
any plausible reason.
Learned counsel for the respondent Bank has submitted that
as the petitioners had not worked during the period as alleged,
they were not entitled to the salary for that period on the principle
of ‘no pay no work’.
Learned counsel did not dispute the fact of the other two
employees as named by the petitioners being paid the salary but
submitted that the same was on medical grounds.
Heard learned counsel for the parties and have perused the
material available on record.
It is clear on record that the respondent Bank had passed
the resolutions dated 25.05.2010 & 18.07.2011 without any logic
or reason, which were interfered in by this Court and ultimately
the resolution dated 16.12.2013 was passed by the Bank in the
interest of the Bank only. The said resolution dated 16.12.2013
was passed with the clear understanding that the benefits of that
decision are to be granted to even those employees who had
retired by that time.
The relevant portion of the resolution dated 16.12.2013
“ckn fopkj foe”kZ loZ lEefr ls cSad deZpkfj;ksa@
vf/kdkfj;ksa dh lsok fuo`fRr dh vf/kokf’kZd vk;q 58 o"kZ ds
LFkku ij iqu% 60 o’kZ fd;s tkus dk fu.kZ; fy;k tkrk gSA
lkFk gh tks deZpkjh@vf/kdkjh mPp U;k;ky; ds LVs izkIr
dj lsok fuo`Rr gks pqds gS mUgsa Hkh 58 ds LFkku ij 60 o’kZ
ds fglkc ls lsok fuo`fRr ifjykHk fn;s tkus dk fu.kZ; fy;k
tkrk gSA bl lUnHkZ esa ekuuh; jktLFkku mPp U;k;ky;
tks/kiqj esa deZpkfj;ksa@vf/kdkfj;ksa dh lsok fuo`Rr ds
lEcfU/kr tks izdj.k yfEcr gSa mDr fu.kZ;kuqlkj lekIr fd;s
tkus ds fy, fu;ekuqlkj fof/kd dk;Zokgh djus dk Hkh
fu.kZ; fy;k x;k] la;qDr jftLVªkj ¼cSafdx½ ds mDr i=
fnukad 10-10-2013 ds Øe esa ekuuh; U;k;ky; }kjk izdj.k
esa fn;s x;s LFkxu vkns”k dks fuLrkfjr djok;k tkosa ,oa Mh-
ih-lh- dh dk;Zokgh dh tkosa] bl dk;Zokgh gsrq cSad ds v/;{k
,oa izcU/k funs”kd dks vf/kd`r fd;k tkrk gSA”
The Hon’ble Apex Court in the case of Dayanand
Chakrawarty (supra), while relying upon earlier judgments passed
in Harwindra Kumar reported in 2005(13) SCC 300, Radhey
Shyam Gautam reported in 2007(11) SCC 507 and Jaswant
Singh reported in 2006(11) SCC 464 observed as under:]
“We observe that the principle of ‘no pay no
work’ is not applicable to the employees who were
guided by specific rules like Leave Rules etc. relating
to absence from duty. Such principle can be applied to
only those employees who were not guided by any
specific rule relating to absence from duty. If an
employee is prevented by the employer from
performing his duties, the employee cannot be blamed
for having not worked, and the principle of ‘no
pay no work’ shall not be applicable to such employee.
38. In these cases as we have already held that
Regulation 31 shall be applicable and the age of
superannuation of employees of the Nigam shall be 60
years; we are of the view that following consequential
and pecuniary benefits should be allowed to different
sets of employees who were ordered to retire at the
(a) The employees including respondents
who moved before a court of law irrespective of
fact whether interim order was passed in their
favour or not, shall be entitled for full salary up to
the age of 60 years. The arrears of salary shall be
paid to them after adjusting the amount if any
paid.”
In view of the ratio as laid down by the Hon’ble Apex Court
in Dayanand Chakrawarty’s case (supra), it is held that the
present petitioners would be entitled for the salary for the period
during which they remained out of service. The same shall be paid
to them within a period of three months from the date of receipt
of the copy of this order. If the same is not paid within the said
period, it would then be payable along with an interest at the rate
of 6% per annum.
With these observations, the present writ petitions are
|
The Rajasthan High Court has recently observed that the employees of Central Co-Operative Bank, who remained out of service due to the latter's 'illogical' decision reducing the age of superannuation, are entitled to the salary for the said period.The Bank had passed a resolution, reducing the superannuation age from 60 to 58 years. Justice Rekha Borana, observed, "Petitioners would...
The Rajasthan High Court has recently observed that the employees of Central Co-Operative Bank, who remained out of service due to the latter's 'illogical' decision reducing the age of superannuation, are entitled to the salary for the said period.
The Bank had passed a resolution, reducing the superannuation age from 60 to 58 years.
Justice Rekha Borana, observed,
"Petitioners would be entitled to the salary for the period during which they remained out of service. The same shall be paid to them within a period of three months from the date of receipt of the copy of this order".
While allowing the petition, the court ruled that if the salary is not paid within the said period, it would then be payable along with an interest at the rate of 6% per annum.
Reliance was placed on the Supreme Court's decision in State of Uttar Pradesh v. Dayanand Chakrawarty & Ors., where it was held that if an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of 'no pay no work' shall not be applicable to such employee.
Background
In the instant case, the respondent Bank passed a resolution dated 25.05.2010, whereby, the superannuation age of the employees was reduced from 60 years to 58 years. However, following filing of a writ petition, the Bank was directed to reconsider its decision.
Subsequently, another resolution was passed on 18.07.2011, reiterating the earlier decision of fixing the age of superannuation at 58 years. The same was again challenged and a statement came to be made before the Court that the age of superannuation will be increase from 58 years to 60 years. Accordingly, the petitions were dismissed as having become infructuous.
Later, the petitioners were denied salary of the period during which they remained out of service because of the resolutions being passed by the Bank.
The counsel for the petitioners averred that it was only on the basis of the submission made by the Bank that the earlier writ petition was rendered as infructuous, as the Bank had promised the consequential benefits also in pursuance to the resolution. He further argued that two employees namely Kailash Chandra Shotriya and Harish Chandra Joshi have been paid the arrears of salary of the disputed period by the Bank and the present petitioners have been denied the same without any plausible reason.
The counsel for the respondent-Bank submitted that the petitioners had not worked during the period, as alleged, so they were not entitled to the salary on the principle of 'no pay no work'. However, he did not dispute the fact of the other two employees as named by the petitioners being paid the salary but submitted that the same was on medical grounds.
Findings
The court observed that respondent Bank had passed the resolutions dated 25.05.2010 & 18.07.2011 without any logic or reason, which were later interfered by the Court. The court added that the Bank had passed the resolution dated 16.12.2013 for self-interest and with the clear understanding that the benefits would be granted to even those employees who had retired by that time.
It held,
"In view of the ratio as laid down by the Hon'ble Apex Court in Dayanand Chakrawarty's case (supra), it is held that the present petitioners would be entitled for the salary for the period during which they remained out of service."
Case Title: Kailash Chandra Agarwal v. State of Rajasthan and Ors., with connected matters
|
ivil Appeal No. 3342 of 1979.
From the Judgment and Order dated 28.4.1978 of the Allahabad High Court in Second Civil Appeal No. 300 of 1975.
O.P. Rana and Raju Ramachandran for the Appellant.
Vivek Ghambir and Praveen Kumar for the Respondent.
The Judgment of the Court was delivered by PATHAK, CJ.
This is a landlord 's appeal by special leave arising out of a suit for ejectment.
The respondent 's father B.M. Paul, was the tenant of the premises in question.
On his death he left behind the re spondent, his mother, brothers and sisters who in herited the tenancy.
A notice under section 106 of the terminating the tenancy was addressed to the respondent and was served on him.
It was not addressed and served on the other tenants.
A suit for ejectment was filed by the appellant against the respondent.
The validity of the notice to quit was challenged by the respondent.
It was contended that notice should have been addressed to all the members of the family and served on them, and in the absence of notice to all the suit was incompetent.
The trial court upheld the validity of the notice relying upon the decision of the Allahabad High Court in Shrimati Vishnawati vs Bhag wat Vithu Chowdhry, on the footing that the defendants were joint tenants and constituted a single unit and therefore notice to one of the defendants was sufficient to determine the tenancy.
The view proceeded on the basis that the heirs of the original tenant held the tenancy as joint tenants.
When the matter ultimately came to the High Court in second appeal, the High Court took the view that as heirs of the deceased tenant they held the tenancy as tenants in common and not as joint tenants.
Accordingly, the High Court said, notice to quit should have been served on each one of the successor tenants.
In that view, the High Court allowed the appeal and 771 dismissed the suit.
The High Court relied on Ramesh Chand Bose vs Gopeshwar Prasad Sharrna, AIR 1977 'Allahabad 38 where it was held that a tenancy was a heritable property right and the heirs of the deceased tenant became tenants themselves.
In this appeal the entire question is whether the notice addressed to the respondent alone is a valid notice.
It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant.
The incidence of the tenancy are the same as those enjoyed by the original tenant.
It is a single tenancy which devolves on the heirs.
There is no division of the premises or of the rent payable therefor.
That is the position as between the landlord and the heirs of the deceased tenant.
In other words, the heirs succeed to the tenancy as joint tenants.
In the present case it appears that the respondent acted on behalf of the ten ants, that he paid rent on behalf of all and he accepted notice also on behalf of all.
In the circumstances, the notice served on the respondent was sufficient.
It seems to us that the view taken in Ramesh Chand Bose (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common.
In our opinion, the notice under section 106 of the served by the appellant on the respondent is a valid notice and therefore the suit must succeed.
In the result, the appeal is allowed, the judgment and decree of the High Court are set aside and the judgment and decree of the First Appellate Court are restored.
There is no order as to costs.
P.S.S. Appeal allowed.
|
The respondent inherited tenancy of the demised premises alongwith his mother, brothers and sisters from their fa ther.
A notice under section 106 of the terminating the tenancy was served on him.
It was followed by a suit for ejectment against him.
Upholding the validity of the said notice, the trial court took the view that the heirs of the original tenant held the tenancy as joint tenants and, therefore, notice to one of the defendants was sufficient to determine the tenan cy.
Allowing the appeal therefrom, the 'High Court took the view that as heirs of the deceased tenant they held the tenancy as tenants incommon and not as joint tenants.
There fore, the notice to quit should have been served on each one of the successor tenants.
Allowing the appeal by special leave, the Court, HELD: The notice under section 106 of the Transfer of Proper ty Act served by the appellant on the respondent was a valid notice.
[771E] On the death of the original tenant, subject to any provi sion to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant.
The incidence of the tenancy are the same as those enjoyed by the original tenant.
It is a single tenancy which devolves on the heirs.
There is no division of the premises or of the rent payable therefor.
The heirs thus succeed to the tenancy as joint tenants.
[771C] In the instant case, the respondent acted on behalf of the tenants, he paid rent on behalf of all and accepted notice also on behalf of all.
In the circumstances, the notice served on the respondent was sufficient.
The suit must, therefore, succeed.
[771D] 770 Shrimati Vishnawati vs Bhagwat.
Vithu Chowdhry, , affirmed.
Ramesh Chand Bose vs Gopeshwar Prasad Sharma, AIR 1977 Allahabad 38, overruled.
|
Appeals Nos. 448 and 449 of 1959.
Appeals by special leave from the judgment and order dated February 12, 1958, of the Patna High Court in Misc.
Judicial Cases Nos. 679 and 680 of 1955.
A. V. Viswanatha Sastri and Naunit Lal, for the appellant (In both the appeals).
A. N. Kripal and D. Gupta, for the Respondent (In both the appeals).
January 5.
The Judgment of the Court was delivered by KAPUR, J.
These appeals by the assessee are brought against two judgments and orders of the High Court of Judicature at Patna in Income tax references under section 66(2) of the Income Tax Act answering the questions in the negative and against the assessees.
The questions were: (1). "Whether on the facts and circumstances of this case Rs. 72,963 12 0 was a revenue expenditure deductible under section 10(2)(iii) or under section 10(2)(xv) of the Indian Income Tax Act?" (2). "Whether on the facts and circumstances of this case Rs. 76,526 1 3 was a revenue expenditure deductible under section 10(2)(iii) or under section 10(2)(xv) of the Indian Income tax Act?" The facts of the appeals are these: The appellant was an employee of M/s. Karam Chand Thapar & Bros. and for each of the accounting years relating to the assessment years 1947 48 and 1948 49 his salary was Rs. 10,572.
He also had an income of Rs. 500 from shares in certain joint stock companies.
On December 20, 1945, he entered into a contract with 361 Bengal Nagpur Coal Company Ltd., for raising coal from Bhaggatdih Colliery, Jharia and actually started his business from January 1, 1946.
Evidently he did not have the requisite funds for his business and therefore in order to finance it, he entered into an agreement with the Mohini Thapar Charitable Trust on February 25, 1946.
The trust is a public charitable trust, which was created by Lala Karam Chand Thapar, who constituted himself as the Managing Trustee.
The relevant terms of this agreement between the appellant and the trust were that the trust was to advance a sum upto Rs. 11 lacs, the contract was to be "carried in accordance of the policy" settled between the appellant and the trust; the trust could withdraw its money at any time and to stop further advances; the trust was not to be liable for any losses; the appellant was to send monthly returns to the trust and the seventh clause was "that in consideration of the trust having agreed to finance my said contract business up to Rs. 11/2 lacs I have agreed to pay to the trust interest on the amount from time to time owing to the trust in respect of the monies to be advanced as above at the rate of 6 p.c. per annum in addition to a sum equivalent to 11/16th of the net profits of this business of mine.
" In pursuance of this agreement the appellant, besides interest, paid to the trust the sum of Rs. 72,963 for the first accounting year and Rs. 76,526 1 3 for the second accounting year corresponding to years of assessment 1947 48,1948 49 and claimed these amounts as allowable deductions under section 10(2)(iii) or under section 10(2)(xv) of the Income tax Act.
The amount of interest has been allowed but the claim in regard to the other sums paid was disallowed by the Income tax Officer on the ground that the agreement was not genuine and bona fide and that it was not prompted by ordinary business considerations.
The matter was taken in appeal to the Appellate Assistant Commissioner who upheld the order of the Income tax Officer.
An appeal to the Income tax Appellate Tribunal was also dismissed and so was an application 46 362 for reference under section 66(1), but the High Court directed the Tribunal to state the case on the questions set out above.
For the two assessment years the question was the same excepting for the amounts claimed as allowable deductions.
In its order dated April 4, 1955, the Appellate Tribunal had found that the payments were not for the purpose of the business and that taking into account the nature of the accounts, the nature of the payments and the relationship between the parties, it could not be said that the amounts were wholly and exclusively laid out for the purpose of the business and therefore rejected the claim.
In the statement of the case the Tribunal has said that the average amount which had been advanced by the trust to the appellant in the first year was Rs. 18,100 and the payments made to the trust in the two years were therefore a share of profits and not expenditure laid out wholly and exclusively for the purposes of the business.
The High Court approached the question from the same angle.
It was of the opinion that the question should be determined on principles of ordinary commercial trading and because the Managing Trustee was in a dominating position and only a small sum of money i.e., Rs. 18,100 on an average had been advanced, the payment of Rs. 72,963 in addition to interest was an absurdly large sum which with the interest paid work ed) out at about 400% interest.
The High Court also took into consideration the fact that the appellant was an employee of Lala Karam Chand or his company.
Put in their own words the High Court observed "having regard to the relationship between the parties and having examined the clauses of the agreement of the 25th February, 1946, between the assessee and the board of trustees I am of the opinion that the real legal position in this case is that there is a joint adventure between the parties, a quasi partnership which falls something short of partnership and that the arrangement between the parties was that the amount of profits should be ascertained and then they shall divide it up in certain specified proportions".
363 The payments, therefore, did not fall within section 10(2) (xv).
The question was therefore answered in the negative and against the assessee.
The appellant has come in appeal to this Court by special leave.
As far as the record goes at the relevant time the appellant was a person of comparatively small means.
No doubt he was getting a salary of Rs. 10,572 a year and had about Rs. 500 from his share holdings but beyond that he does not seem to have had any other means.
There is nothing to show on the record that he had any security to offer or did offer for the money that he was borrowing.
Thus the trust was lending monies to the extent of Rs. 11/2 lakhs without security and upon a venture which might or might not have been successful.
The Tribunal and the High Court seem to have fallen into an error by taking a mean of the advances made by the Trust to the appellant during the first accounting year.
The record shows that the advances were very considerable in the first year ranging from Rs. 12,000 in January 1946 to Rs. 1,86,000 in July of that year and in the following months of that year they ranged from Rs. 59,000 to Rs. 7,000.
In the following years beginning from the end of 1946 to 1953 considerable sums of money had been advanced which ranged on an average from Rs. 1,97,000 in 1947 to Rs. 3,17,000 in 1953.
In regard to 1947, the Tribunal has found that the average amount of loan was Rs. 1,20,317 but according to the figures supplied by the appellant in his petition for special leave to appeal to this Court, the average comes to Rs. 1,97,919.
In any case very considerable sums of money had been advanced by the Trust and as we have said above to a person who was not a businessman, who neither gave nor is shown to have been able to give any security.
The agreement between the appellant and the trust has to be considered in the context of those circumstances and if taking all the surrounding circumstances into consideration the trust found it necessary to have control over the working and over the finances and had offered stringent conditions it is not a matter which can be considered to be abnormal.
364 Another matter which was taken into consideration by the Tribunal was that the amounts claimed as deductible items were shown as a share of profits of the trust which had been debited in the appellant 's profit and loss appropriation account or in other words the appellant as per his accounts admitted that it was an appropriation of the profits to the trust.
The Tribunal thus was of the opinion that the interest to be received by the Trust was 11/16 part of the profits of the appellant 's business and that the method of accounting clearly showed that the appellant was only parting with the share of profits.
This, in our opinion, is an erroneous approach to the question.
The case has to be decided according to the tenor of the document as it stands and the circumstances of the case.
The genuineness of the document has not been challenged though an effort was made by the Revenue to so construe the document and so read the facts as to make both the amounts liable to tax in the hands of the appellant.
As to what is a deductible expense has to be viewed in the circumstances of each case.
In Commissioner of Income tax vs Chandulal Keshavlal (1) this Court observed that in deciding whether a payment of money is a deductible expenditure, one has to take into consideration the question of commercial expediency and the principles of ordinary commercial trading.
If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may enure for the benefit of a third party.
Another test laid down in that case was whether the transaction is properly entered into as a part of the assessee 's legitimate commercial undertaking in order to facilitate the carrying out of its business and it is immaterial that a third party also benefits thereby.
Thus in cases like the present one, in order to justify the deduction the sum given up must be for reasons of commercial expediency.
It may be voluntary but so long as it is incurred for the assessee 's benefit e.g. the carrying on of his business, the deduction would be claimable.
In Commissioner of Income tax, (1) 365 Bombay vs Jaggannath Kissonlal (1) the assessee executed a promissory note jointly with another person in order to raise the money for himself and for the other.
The other person became insolvent and the assessee had to.
pay the whole amount and claimed that amount as an allowable deduction under section 10(2)(xv) and it was found that it was a practice in the Bombay market to borrow money on such promissory notes and there was an element of mutuality in the transaction.
The loss sustained by the assessee was allowed as a deductible item on the basis that a commercial practice of financing the business by borrowing money on joint and several liability was established.
In another case decided by this Court M/s. Haji Aziz & Abdul Shakoor Bros. vs The Commissioner of Income tax (2) it was held that the expenses which are permitted as deductible are such as are made for the purpose of carrying on the business i.e. to enable a person to carry on business and earn profits in that business and the disbursements must be such which are for the purpose of earning the profits of the business.
See also Strong and Company of Romsey Ltd. vs Woodifield (3).
These cases therefore show that if any amount is expended which is commercially expedient and is expended for the purpose of earning profits it is a deductible expenditure.
In support of their opinion the High Court relied upon the cases hereinafter mentioned but in our opinion they do not apply to the facts and circumstances of this case.
The first case referred to is Pondicherry Railway Company vs Commissioner of Income Tax, Madras (4).
In that case the assessee company, incorporated in the United Kingdom, obtained a concession of constructing a railway in the territories of Pondicherry.
The assessee company was to pay to the French Government 1/2 of its net profits.
The French Government on its part gave land on which the railway was to be built free of charge and also agreed to pay a subsidy.
The question for decision in that case was whether the monies paid by the (1) ; (3) ; (2) ; (4) [1931] L.R. 58 I.A. 239.
366 assessee company to the French Government i.e., of its net profits were allowable as a deduction under the provisions corresponding to section 10(2)(xv).
Lord Macmillan observed at p. 251: "A payment out of profits and conditions on profits being earned cannot accurately be described as a payment made to earn profits.
It assumes that profits have first come into existence.
But profits on their coming into existence attract tax at that point, and the revenue is not concerned with the subsequent application of the profits.
" But these observations have been later on explained in other cases to which reference will be made presently.
In Union Cold Storage Co. Ltd. vs Adamson (1) the assessee leased lands and premises abroad reserving a rent of pound 9,60,000.
It was also provided in the deed that if at the end of the financial year it was found that after providing for this rent the result of the company 's operations was insufficient to pay interest on charger, and debentures etc., the rent for the year was to be abated to the extent of the deficiency.
In computing its profits the assessee company claimed the sums of rent paid in two respective years.
They were held not payable out of the profits or.
gains and were allowable deductions.
At page 318 Rowlatt J. said that the sum which was to be paid by the company was a recompense in respect of possession and use of the premises abroad and the company had entered into some liabilities by way of payment for their premises and that payment was an outgoing of the business which was to be provided for and allowed before profits of the business could be ascertained.
In the House of Lords Lord Macmillan distinguished the Pondicherry case,(1) by saying that in that case the ascertainment of profits preceded the coming into operation of the obligation to pay and when profits had been ascertained the obligation was to make over thereof to the French Government.
Dealing with the passage above referred to Lord Macmillan said at p. 331: "I was dealing with a case in which the obligation was, first of all, to ascertain the profits in a (1) (2) (1931) L.R. 8 I.A. 239.
367 prescribed manner, after providing for all outlays incurred in earning them, and then to divide them.
Here the question is whether or not a deduction for rent has to be made in ascertaining the profits, and, the question is not one of the distribution of profits at all." In Tata Hydro Electric Agencies Limited, Bombay vs The Commissioner of Income tax, Bombay Presidency (1) the Tata Power Co. entered into an agency agreement with Tatasons Ltd. agreeing to pay to Tatasons Ltd. a commission of 10% on the annual net profits of Tata Power Co., subject to a minimum whether any profits were made or not.
Later on two persons D and S advanced funds to Tata Power Company on the condition that in addition to the interest payable to them by Tata Power Company they should each receive from Tatasons Ltd., 12 1.2% of the commission earned by Tatasons Ltd. Tatasons Ltd. assigned their entire right to the assessee company and the Tata Power Company entered into a new agency agreement with the assessee company and the assessee company received a commission and out of that paid 1/4 to D and section Relying on Pondicherry Railway case (2) the Bombay High Court held that that was not an allowable deduction as expenditure incurred solely for earning profits.
On appeal the Privy Council held that Pondicherry case did not govern the case.
The nature of the transaction was held to be this that the obligation to make the payments was undertaken by the assessee company in consideration of its acquisition of the right to property to earn profits i.e. of the right to conduct the business and not for the purpose of producing profits in the conduct of the business.
Dealing with Pondicherry Railway case (2) Lord Macmillan said: "In the Pondicherry case the assessees were under obligation to make over a share of their profits to the French Government.
Profits had first to be earned and ascertained before any sharing took place.
Here the obligation of the appellants to pay (1) [1937] L. R. 64 I.A. 215.
(2) (1931) L.R. 58 I.A. 239.
368 a quarter of the commission which they receive from the Tata Power Co. Ltd. to F. E. Dinshaw Ltd., and Richard.
Tilden Smith 's administrators is quite independent of whether the appellants make any profits or not." and at page 225 Lord Macmillan said: "In short, the obligation to make these payments was undertaken by the appellants in consideration of their acquisition of the right and opportunity to earn profits, that is, of the right to conduct the business, and not for the purpose of producing profits in the conduct of the business.
" At page 226 the Privy Council accepted the following test laid down by Lord President in Robert Addie & Sons ' Collieries, Ltd. vs Commissioners of Inland Revenue (1) where it is observed: "What is 'money wholly and exclusively laid out for the purposes of the trade ' is 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 oneself the question, Is it a part of the Com pany 's working expenses; is it expenditure laid out as part of the process of profit earning".
In Commissioner of Income tax, Bombay Presidency vs Tata Sons Ltd. (2) the company received a commission on the basis of profits.
The managed company was in urgent need of money and the assessee company found a financier a Mr. Dinshaw and an agreement was entered into with the managed company and Mr. Dinshaw by which the latter agreed to lend a crore of rupees on the condition that the assessee company assigned to him a share in the commission which the assessee company might receive from the managed company.
That was held to be an agreement on the part of the assessee company to share their commission with Mr. Dinshaw and it was a part of the arrangement on which the assessee company obtained finance and therefore the payment to Mr. Dinshaw was an expenditure solely for the purpose of earning profits or gains and it was not of a capital nature.
At (1) (2) 369 page 203 Beaumont C.J. said that the question whether the payment of a part of the commission to a third person can be regarded as expenditure incurred solely for the purpose of earning that commission is a question which must be answered on the facts of each case on a commercial basis.
In The Indian Radio and Cable Communications Company Ltd. vs The Commissioner of Income tax, Bombay (1) it was observed that it was not universally true to say that a payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for the purpose of earning such profits.
Lord Maugham in explaining the judgment in the Pondicherry Railway case (2) said at page 278: " To avoid misconception it is proper to say that in coming to this conclusion they have not taken the view that the case is governed by the decision in Pondicherry Railway Co. Ltd. vs Commissioner of Income tax, Madras, though that case no doubt shows light on the nature of the problem which has to be solved in the present case.
It should perhaps be added that a sentence in the judgment in that case has been explained, if explanation was necessary, by Lord Macmillan in the subsequent case of W. H. E. Adamson vs Union Cold Storage Company.
" As to when a deduction is claimable and when it is not, it was said at page 277 that if a company had made an apparent net profit and then had to pay to a director as a contractual recompense, the net profit would be the difference between the two but if there was a contract to pay a commission on the net profits of the year it must necessarily be held to mean as net profits before the deduction of the commission.
In British Sugar Manufacturers Ltd. vs Harris (3) the assessee company agreed to pay two other companies a certain percentage of its annual profits after deduction of expenses and debenture interest in consideration of their giving to the assessee company the full benefit of their technical and financial knowledge (1) (2) [1931] L.R. 58 I.A. 239.
(3) 47 370 and experience.
Certain payments were made in pursuance of that agreement and it was held that payments under the agreement were permissible deductions in computing the assessee company 's profits.
Dealing with the Pondicherry Railway case, (1) at page 548, the learned Master of the Rolls said: " It is to be observed that Lord Macmillan in that paragraph was quite clearly using the word I profit ' in one sense and one sense only; he was using it ' in the sense of the I real net profit ' to which Lord Maugham referred.
That he was doing that is, I think, abundantly clear when the nature of the contract there in question is considered, which was merely a contract under which a percentage of profits was payable by the railway company to the French Government.
There was no question of services or anything of that kind in the case; it was merely a sum payable out of profits.
I do not find myself constrained by that expression of opinion, because it must be read; as Lord Macmillan has said in a subsequent case Union Cold Storage Co. Ltd. vs Adamson (2 ) at pp.
331 2, in relation to the particular subject matter with which he was dealing.
" As has been said above the question to be considered in this case is governed by the observations of this Court in Commissioner of Income tax vs Chandulal Keshavlal & Co. (3) and the circumstances under which the trust agreed to lend the appellant such a large sum of money shows the true nature of the transaction.
On the facts proved in the present case the Trust agreed to finance the business of the appellant on the terms set out in the agreement and there is nothing to show that he could have made any better arrangements or would not have lost the contract if he had failed to enter into the agreement i.e. the agreement to pay the amounts in dispute.
Therefore in a commercial sense the payments were an expenditure wholly and exclusively laid out for the purpose of the business.
In our opinion, therefore, the High Court was in error and the question referred should have been (1) [1931] L.R. 58 I.A. 239.
(2) , 331 32.
(3) 371 answered in the affirmative in favour of the appellant.
The appeals are, therefore, allowed and the judgments, and orders of the High Court are set aside.
The appellant will have his costs in this Court and in the High Court.
One hearing fee.
Appeals allowed.
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The assessee entered into a contract for working certain collieries.
As he did not have the requisite funds, he entered into an agreement with M whereunder M was to advance a sum upto Rs. 11/2 lacs, but could withdraw the money at any time and stop further advances and was not liable for any losses; the assessee was to pay interest on the advances at 6% per annum in addition to a sum equivalent to 11/16th of the net profits of the business.
In pursuance of the agreement M made advances to the assessee and the assessee paid interest and 11/16th of his net profits to M.
The assessee claimed these amounts paid to M as allowable deductions under section 10(2)(iii) or under section 10(2)(xv) of the Income tax Act.
The amount paid as interest was allowed but the other sums paid were not allowed on the ground that these sums were not wholly and exclusively laid out for the purpose of the business.
Held, that the assessee was entitled to the deductions claimed.
The case had to be decided according to the tenor of the agreement and the circumstances of the case.
In order to justify the deduction of the sum given up had to be for reasons of commercial expediency; it may be voluntary but so long as it was incurred for the assessee 's benefit, e.g., the carrying on of his business, the deduction was claimable.
In the present case there was nothing to show that the assessee could have made any better arrangements or would not have lost the contract had he not entered into the agreement with M. Therefore in a commercial sense the payments were an expenditure wholly and exclusively laid out for the purpose of the business.
Commissioner of Income tax vs Chandulal Keshavlal, , followed.
Commissioner of Income tax, Bombay vs M/s. jaggannath Kissonlal; , , M/s. Haji Aziz & Abdul Shakoor Bros. vs The Commissioner of Income tax, ; , and Strong vs Woodifield, ; , relied on.
Pondicherry Railway Company vs Commissioner of Income tax, Madras, (1931) L.R. 58 I.A. 239, distinguished.
Union Cold Storage Co. Ltd. vs Adamson, , 360 Tata Hydro Electric Agencies Ltd., Bombay vs The Commissioner of Income tax, Bombay Presidency.
(1937) L.R. 64 I.A. 215, Robert Addie & Sons ' Colleries, Ltd, vs Commissioners of Inland Revenue, , Commissioner of Income tax, Bombay Presidency vs Tata Sons Ltd. , The Indian Radio and Cable Communications Company Ltd. vs The Commissioner of Income tax, Bombay, , British Sugar Manufacturers Ltd. vs Harris, , referred to.
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Petition (Civil No. 651 of 1986.
(Under Article 32 of the Constitution of India).
P.P. Rao, Ms. Bina Gupta, Ms. Vandana Saggar and Ms. Monika Mohil for the Petitioners.
V.C. Mahajan, K. Swamy, Ms. A. Subhashini and Ms. Niran jana Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
This petition under Article 32 of the Costitution has been filed by Prahalad Singh claiming that he and other similarly placed Compositors working in the Government of India Presses all over India are entitled to the status and salary of Compositors, Grade I in the "highly skilled" category with effect from January 1, 1966, The said relief is claimed on the sole ground that one T.R. Thakur has already been given Grade I in the "highly skilled" category as a result of the judgment in his favour given by the Himachal Pradesh High Court.
The writ petition (C.W. 61/69) filed by T.R. Thakur was allowed by the learned Single Judge of the High Court on May 21,1971 and Letters Patent Appeal against the said judgment was dismissed on May 9, 1979.
The High Court held that the categorisation as "highly skilled" and "skilled" on the basis of seniority alone was unreasonable and discriminatory.
No special leave 154 petition against the judgment of the High Court was brought to this Court and as such the judgment has become final.
Prahalad Singh and others have claimed that they are entitled to the benefit of the judgment given by the High Court in Thakur 's case.
According to them the said judgment is applicable in principle to all the Compositors whether they were parties before the High Court or not.
This peti tion came for hearing before a Bench of this Court consist ing of R.S. Pathak, CJI, M.N. Venkatachalia, J.
The Bench in its order dated April 28, 1989 observed as under : "The principal objection to the grant of relief to the Petitioner and those for whom he claims to act is the gross delay with which the writ petition appears to have been bought in this Court.
To surmount that difficulty the petitioner relies upon the plea that the judgment of the High Court in T.R. Thakur 's case is a judgment operative in principle in favour of all compositors situated in the circumstances in which T.R. Thakur found himself.
There are other pleas which have been taken by the petitioner, but the substantial one is whether he and the other compositors can enforce in their favour the benefit grant ed in T.R. Thakur 's case although they were not parties to that proceeding.
At first blush it would seem that the High Court considered the particular facts of T.R. Thakur, the petitioner before it, and while granting relief it appears, in terms, to have confined it to T.R. Thakur.
It is an important point whether, as the petitioner now contends before us, the direction issued by the High Court can be regarded as a direction operative in re spect of all compositors employed in the Government of India Presses all over India, The point is important since the objection on the plea of laches seems to be a substantial one in view of the several compositors who have over the years been promoted to the category of "highly skilled" compositors, and interfering with their status now could mate rially prejudice them.
At the same time, it cannot be doubted that there can be cases where although the facts of a particular petitioner have been taken into consideration what the Court indents, when it adjudicates on the claim, is to lay down the law to be ap plied by the respondents to all similar situa tions.
There are other cases where relief may be granted or refused upon the consideration of a question involved the question being one which affects several persons of the category to which the petitioner belongs and the grant or refusal of the relief may turn on 155 the particular facts of that case.
Various possible categories of cases can be conceived in this context.
We think it desirable that in cases such as this the Court should formulate a set of appropriate guidelines indicating when directions rendered by the Court in one particular case can be regarded as operative in other cases.
As the matter will be governed both by principle and by the practice of the Court, it is appropriate that this case be referred to a larger Bench for consideration on this and the other points arising in it.
" This is how the writ petition has come before us for final heating.
It is not necessary to go into the merits of the question posed by the Two Judges Bench of this court because we are of the view that the High Court judgment in Thakur 's case does not lay down the correct law.
The facts which led 'to the filing of the writ petition by Thakur are as under: Prior to January 1, 1966, there was one grade of Compos itors (Rs. 110 Rs.
180) in the Government of India Presses.
In the year 1963 a committee called "The Committee for Categorisation of the Government of India Press Workers" was constituted to review the classification of posts of indus trial workers in the Government of India printing presses.
The said Committee, inter alia, made the following recommen dations : "There was an equally persistent and wide spread demand from the workers that the cate gory of Compositors should be treated as highly skilled instead of skilled as at present.
We have very carefully examined this case as well and were unable to subscribe to this demand.
Hand composing in the Govt.
of India presses is essentially a skilled job.
The Managers were, however, of the opinion that 10 15% of the Compositors are frequently expected to handle composition work of mathe matical or scientific discourses.
For this, a knowledge application of diacritical marks superior and inferior letters/figures, scien tific signs/symbols etc.
are essential.
This work, admittedly, involved much higher skill than originally hand composition.
The Commit tee,therefore, recommend that a suitable percentage of compositors should be upgraded to the highly skilled category with pay scale of Rs. 175 205.
This category should be given an appropriate designation to distinguish it from the ordinary grade of Compositors who should still be in the skilled group.
" 156 Accepting the above recommendations, the Government of India, by an order dated March 14, 1966, divided the exist ing cadre of Compositors Compositors Grade I (Rs. 150 Rs. 206) and Compositors Grade II (Rs. 11 O 180).
It was further decided that the Compositors Grade I would be classified as "highly skilled" and Compositors Grade II as "skilled".
The ratio of Grade I to Grade II was fixed as 20: 80.
The initial constitution of the cadre of Compositors Grade I was done by appointing 20% of the Compositors on the basis of seniority cure fitness but trade test was made obligatory for future promotions to Grade I.
While implementing the above said decision of the Gov ernment of India, 18 Compositors who were senior to Thakur were given the pay scale of Compositor Grade I. Thakur challenged the denial of higher pay scale of Compositor Grade I to him on the ground that he and the 18 Compositors who were promoted were performing the same duties and were holding similar posts which were inter changeable.
According to him all of them were performing the duties of "highly skilled" Compositors and as such the higher grade could not have been denied to him.
The learned Single Judge allowed the writ petition and held that the categorisation of the senior most persons as "highly skilled" was arbitrary and discriminatory.
The learned Judge issued the following directions: "In the light of the above I am of the view that the petitioner is entitled to the relief prayed for and direction is issued to the respondents not to enforce the revised scale of pay in such a manner as to subject the petitioner to a lower scale of pay than the one allowed to the compositors who have been so fixed in the scale laid down for the highly skill compositors.
" The Letters Patent Appeal filed by the Union of India against the judgment of the learned Single Judge was dis missed by the Division Bench of the High Court on the fol lowing reasoning: "The contention of the appellants, as raised by them in paragraph 5 of their return.
that by length of service a person acquires more and more skill and, therefore, the test of seniority for the purpose of putting a person in the higher category of Grade I was justi fied, not acceptable because it is very well known that a mere length of service does not always result in more skill in the working of the person concerned.
Seniority would have of course relevance in a situation where two persons having equal skill are to be consid ered.
But unless such a situation arose it is very much evident that initial placing of the 157 present incumbents on the post of Compositor in the higher category of Grade I could not have been done in total disregard of the degree of skill which each of these incumbents possessed.
" Academic pursuit and experience are two primary sources of learning.
A Compositor 's job in a printing press is a skilled job requiring special technique.
In such a job it would be reasonable to measure the standards of skill by length of experience.
The High Court, in our view, fell into error in quash ing the classification based on experience arising out of length of service.
It is obvious from the recommendations of the Committee quoted above that "highly skilled" category was created to handle the nature of work which involved higher skill than the original hand composition.
The Com positors with longer service and who were found fit for promotion were appointed to Grade I and were categorised as "highly skilled".
Experience itself is merit and can be a valid basis for classification.
This Court in State of U. P. vs j.
P. Chaurasaia; , has upheld the classifica tion based on experience as reasonable classi fication.
Jagannatha Shetty, J. speaking for this Court observed: "Article 14 permits reasonable classification founded on different bases.
It is now well established that the classification can be based on some qualities or characteristics of persons grouped together and not in others who are left out.
Those qualities or characteris tics must, of course, have a reasonable rela tion to the object sought to be achieved.
In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration.
He or she learns also by experience as much as by other means.
It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of newcomers.
Even in Randhir Singh case, this principle has been recognised.
O. Chinnappa Reddy, J. observed that the classification of officers into two grades with different scales of pay based either on academic qualification or experience or length of service is sustainable.
Apart from that, higher pay scale to avoid stagna tion or resultant frustration for lack of promotional avenues is very common in career service.
There is selection grade for District Judges. 'there is senior time scale in Indian Administrative Service.
There is supertime scale in other like services.
The entitlement to these higher pay scales depends upon sen iority 158 cure merit or merit cure seniority.
The dif ferentiation so made in the same cadre will not amount to discrimination.
The classifica tion based on experience is a reasonable classification.
It has a rational nexus with the object thereof.
To hold otherwise, it would be detrimental to the interest of the service itself.
" We, therefore, hold that the judgment of the Himachal Pradesh High Court in T.R. Thakur 's case does not lay down correct law and is overruled.
The only ground on which this petition is based, having become non existent, the petition ers are not entitled to the relief claimed by them and the writ petition is liable to be dismissed.
We are, however, of the view that the cadre of Composi tors Grade I 'highly skilled ' should be enlarged.
The Com positors are persistently demanding the upgrading of the whole of the cadre.
The "Committee" also recommended that suitable percentage be upgraded.
The Government created the higher grade for 20% of them.
Keeping in view the large number of Compositors all over the country and to remove stagnation we are of the opinion that the ratio between the two cadres should be 33 1/3: 66 2/3%.
We, therefore, commend to the respondents to increase the strength of the cadre of Compositor Grade I 'highly skilled ' to 33 1/3 per cent with effect from April 1, 1992.
The writ petitions is disposed of in the above terms with no order as 0 costs.
V.P.R. Petition dismissed.
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Petitioner claiming that he and other similarly placed Compositors working in the Government of India presses all over India were entitled to the status and salary of Compos itors, Grade I in the "highly skilled" category with effect from January 1, 1966 on the ground that the decision of the Himachal Pradesh High Court in Thakurs case was applicable in principle to all the Compositors, filed the present petition under Article 32 of the Constitution.
The High Court in Thakur 's case held that the categori sation as "highly skilled" and "skilled" on the basis of seniority alone was unreasonable and discriminatory.
As no special leave petition against the judgment of the High Court was brought to this Court the judgment became final.
Over ruling Thakur 's case and dismissing the petitions this Court, HELD: I.Academic pursuit and experience are two primary sources of learning.
A Compositor 's job in a printing press is a skilled job requiring special technique.
In such a job it would be reasonable to measure the standards of skill by length of experience.
The High Court fell into error in quashing the classification based on experience arising out of length of service.
[157 B] 2.
"Highly skilled" category was created to handle the nature work which involved higher skill than the original hand composition.
The Compositors with longer service and who were found fit 153 for promotion were appointed to Grade I and were categorised as "highly skilled".
Experience itself is merit and can be a valid basis for classification.
[157 C D] 3.
Keeping in view the large number of Compositors all over the country and to remove stagnation the ratio between the two cadres should be 33 1/3: 66 2/3 %.
[158 D] 4.
The respondents are directed to increase the strength of the cadre of Compositor Grade I 'highly skilled ' to 33 1/3 percent with effect from April 1, 1992.
[158 D] Thakur 's Case (Writ petition C.W. No. 61/69) dated 21.5.1971; overruled.
State of U.P.v.
J.P. Chaurasia; , ; re ferred to.
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tition No.369 of 1989.
(Under Article 32 of the Constitution of India).
K. Madhava Reddy, B. Rajeswar Mehta Dave and Ms. Neelam for the Petitioners.
M.K. Ramamurthi, M.A. Krishnamurthy, Mrs. C. Ramamurthy, GVS Surayanarayana Raju in person TVSN Chari, Jagan Rao, DRK.
Reddy, GVS Surayanarayana for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Promotee Engineers of the Roads & Buildings Wing of the Andhra Pradesh Engineering Service are the petitioners in this application under article 32 of the Constitution and challenge is to the Government circular of 12.8.1988 (Annexure A) fixing the guideline for the drawing up of the seniority list pursuant to a direction issued by this Court in a batch of writ petitions, decision whereof is reported in Siva Reddy & Ors.
vs State of Andhra Pradesh & Ors.
While petitioners are promotees, the respondents are direct recruits.
Petitioners allege that they had put in continuous service of 6 7 years by 1982 and their services having been regularised in the post of Deputy Executive Engineer in the year 1974 75, direct recruits appointed in the year 1982 cannot under any law be placed above them.
As noticed in Siva Reddy 's case (supra), substantive vacancies in the category of Assistant Engineers had to be filled up from two sources 37 1/2% by direct recruitment and the remaining 62 1/2% by transfer of Supervisors and Draughtsmen and by promotion of Junior Engineers.
Direct recruits had complained that notwithstanding this prescrip tion, there had been no recruitment of Assistant Engineers and the promotees from the other two modes had come into the cadre far in excess of the limit provided by the Rules.
The Chief Engineer by his order dated June 8, 1984 regularised the temporary service of promotees of the years 1972 73, 1973 74 and 1974 75 in the cadre of 142 Assistant Engineers (later designated as Deputy Executive Engineers).
They had, therefore, asked the quashing of the regularisation and drawing up of a seniority list on the basis of the ratio fixed under r. 3(1) of the Special Rules.
This Court in paragraph 5 of the judgment stated: "Reopening of the question of inter se senior ity on the basis of non enforcement of the rules from the very beginning may create hardship and that would be difficult to miti gate but we see no justification as to why the benefit of the scheme under the rules should not be made available to direct recruits at least from 1982.
When the State Government by rules duly framed prescribed the method of re cruitment and put the scheme into operation it had the obligation to comply with it.
The explanation offered by the State Government for non compliance of the 'requirements of the rules does not at all impress us.
We there fore, direct that as on December 31, 1982, the State Government must ascertain the exact substantive vacancies in the category of Assistant Engineers in the service.
On the basis that 37 1/2 per cent of such vacancies were to be filled up by direct recruitment, the position should be worked out.
Promotees should be confined to 62 1/2 per cent of the substantive vacancies and in regard to 37 1/2 per cent of the vacancies the shortfall should be filled up by direct recruitment.
General Rules shall not be applied to the posts within the limits of 37 1/2 per cent of the substan tive vacancies and even if promotees are placed in those posts, no seniority shall be counted.
The State Government shall take steps to make recruitment of the shortfall in the direct recruitment vacancies within the limit of 37 1/2 per cent of the total substantive vacancies up to December 31, 1987 within four months from today by following the normal method of recruitment for direct recruits.
The seniority list in the cadre of Assistant Engineers shall be redrawn up, as directed by the Tribunal by the end of September 1988, keeping the directions referred to above in view . " With a view to implementing this direction the State Govern ment came out with the impugned order dated 12.8.1988 marked Annexure 'A '.
In Siva Reddy 's case this Court found that promotees had exceeded the quota and even got regularised in respect of the posts in 143 excess of the limit.
Taking into consideration the fact that regularisation had been done after the promotees had put in some years of service and disturbing regularisation would considerably affect the officers concerned, regularisation was not interfered with.
This Court 's intention obviously was not to take away the benefit of regularisation in re spect of the officers belonging to the promotee group in excess of their quota but the Court did not intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of seniority.
A reading of the judgment in Siva Reddy 's case clearly indicates that this Court intended what the Government have laid down by way of guideline.
We see no justification to interfere with the Government direction.
A draft seniority list on the basis of such direction has already been drawn up and has been circulated.
We are told that objections have been received and would be dealt with in usual course by the appropriate authorities.
This writ petition had been enter tained in view of the allegation that the Government direc tion was on a misconception of what was indicated in the judgment and in case there was any such mistake the same should be rectified at the earliest.
Now that we have found that the Government order is in accord with the Court direc tion, this writ petition must be dismissed and individual grievances, if any, against the draft seniority list would, we hope, be considered on the basis of objections filed by the competent authority.
There shall be no order as to costs.
N.P.V. Petition dismissed.
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Pursuant to this Court 's direction in K. Siva Reddy & Ors.
vs State of Andhra Pradesh & Ors.
, ; , the State Government issued Circular dated 12.8.1988, fixing the guideline for drawing up of inter se seniority list of direct recruit and promotee Deputy Executive Engi neers in Andhra Pradesh Engineering Service.
This Circular was challenged by the petitioners.
Promotee Engineers, in a Writ Petition filed in this Court, contending that since they had put in continuous service of 6 to 7 years by 1982 and their services had been regularised in the post of Deputy Executive Engineer in the year 1974 75, direct re cruits appointed in the year 1982 could not, under any law, be placed above them.
Dismissing the writ petition, this Court, HELD: Promotees had exceeded the quota and even got regularised in respect of the posts in excess of the limit.
Taking into consideration the fact that regularisation had been done after the promotees had put in some years of service and disturbing regularisation would considerably affect the officers concerned, regularisation was not inter fered with.
This Court 's intention was not to take away the benefit of regularisation in respect of the officers belong ing to the promotee group in excess of their quota but the Court did not intend to allow such regularised officers in excess of the quota to also have the benefit of such service for purposes of seniority.
[142 H; 143A B] A reading of the judgment in Siva Reddy 's case clearly indicates that this Court intended what the Government have laid down by way of guideline.
Therefore, there is no justi fication to interfere with the Government direction. [143B] 141 K. Siva Reddy & Ors.
vs State of Andhra Pradesh & Ors.
, ; , referred to.
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Civil Appeal No. 5313 of 1983.
Appeal by Special leave from the Judgment and Order dated the 17th January, 1983 in CMWP.
No. 8397 of 1982.
Shanti Bhushan and section Markandeya for the Appellant.
Gopal Subramaniam and Mrs. section Dikshit for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
About 45 plots of land of Kheragarh village and about 15 adjoining plots of land of Nagala Udaiya village situated in the district of Agra were notified under section 4 (1) of the Land Acquisition Act, 1894 (Act No. 1 of 1894) (hereinafter referred to as 'the Act ') for acquisition for a public purpose, namely, for the construction of the Market Yard of the Krishi Utpadan Mandi Samiti, Kheragarh under a notification dated January 8, 1980 issued by the Government of the State of Uttar Pradesh.
As the plots of land in question which 419 were agricultural lands were urgently required for the aforesaid purpose and the Government was of the view that it was necessary to direct that section 5 A of the Act should not apply to the said acquisition proceedings, it simultaneously made an order under section 17 (4) of the Act directing that section 5 A would not apply to the said proceedings and incorporated the said order also in the notification issued.
under section 4 (1) of the Act.
The notification was published in the Official Gazette dated January 9, 1980.
This was followed by a notification dated January 9, 1980 under section 6 of the Act published in the Official Gazette dated January 10, 1980.
That notification contained an order made under section 17 (1) of the Act authorising the Collector to take possession of the plots on the expiration of fifteen days from the publication of the notice under section 9 (1) of the Act though no award under section 11 of the Act had been made.
The above said plots of land which were in all about 60 in number belonged to a number of persons.
The total extent of land proposed to be acquired was about 41.46 acres.
The possession of all the plots of land was also taken in the course of the said acquisition proceedings.
In or about June 1982, notices were issued by the Collector to various persons having interest in the said plots under section 9 (3) of the Act for the purpose of determining the compensation payable to them.
After the issue of the said notices, three persons Hari Singh (appellant No. 1), Pooran Chand (appellant No. 2) and Munna Lal (appellant No. 3) filed a writ petition in Civil Misc.
Writ Petition No. 8397 of 1982 on the file of the High Court of Allahabad questioning the validity of the acquisition proceedings as regards 6 plots of land in Kheragarh village out of the total of about 60 plots of land which had been acquired by the State Government in the above said proceedings.
Appellant No. 1 claimed to be the owner of plots Nos 249, 250 and 252.
Appellant No 2 claimed to be the owner of plot No. 261 and appellant No 3 claimed to be the owner of plots Nos. 133 and 134.
Appellant No. 1 pleaded that there was a house situated on plot No. 249 and that he had also installed a flour mill on it.
They all pleaded that they had no knowledge of the acquisition proceedings and were prejudiced by the order made under section 17 (4) of the Act exempting the operation of section 5 A of the Act in the case of these proceedings.
They further pleaded that there was no urgency sufficient in law to sustain the order made under section 17 (4) of the Act as nothing had been done on the lands for nearly two years.
Appellant No. 1 also pleaded that 420 section 17 (4) of the Act would not be applicable because on a part of his land there was a house.
They also applied for an interim order restraining the Collector from dispossessing them from the plots in question.
On September 9, 1982 the High Court made an interim order restraining the respondents from dispossessing the appellants from the plots until further orders, unless they had already been dispossessed.
But on January 17, 1983, the High Court rejected the writ petition at the stage of admission after hearing the advocates for both the parties.
This appeal by special leave is filed by the appellants under Article 136 of the Constitution on against the order of the High Court.
The High Court has not given any reasons for its order dismissing the writ petition.
The order reads: 'Rejected '.
We have been taken through the writ petition, counter affidavits and other papers filed in the High Court and in this Court.
At the out set we are of the view that the writ petition filed in July, 1982 questioning the notification issued in January, 1980 after a delay of nearly two and a half years is liable to be dismissed on the ground of laches only.
It is no doubt true that the appellant have pleaded that they did not know anything about the notifications which had been published in the Gazette till they came to know of the notices issued under section 9 (3) of the Act but they have not pleaded that there was no publication in the locality of the public notice of the substance of the notification as required by section 4 (1) of the Act.
It should be presumed that official acts would have been performed duly as required by law.
It is significant that a large number of persons who own the remaining plots have not challenged the acquisition proceedings.
The only other petition in which these proceedings.
are challenged is Civil Misc.
Writ Petition No. 11476 of 1982 on the file of the High Court filed subsequently by Amar Singh and four others.
Moreover in a small place like Kheragarh where these plots are situate, the acquisition of these lands would be the talk of the town in a shortwhile and it is difficult to believe that the appellant who are residents of that place would not have known till July, 1982 that the impugned notification had been published in 1980.
Any interference in this case filed after two and a half years with the acquisition proceedings is likely to cause serious public prejudice.
This appeal should, therefore, fail on the ground of delay alone.
421 Now even on merits there appears to be no substance in the case of the appellants.
At the hearing of this appeal, the appellants have confined their case to plots Nos. 249, 261 and 133 and have given up their case in regard to plots Nos. 250, 252 and 134.
Appellant No. 1 claims to be the owner of plot No. 249.
On behalf of the respondents it is urged that appellant No. 1 is recorded only as a co tenure holder alongwith five others and they have not impeached the notifications.
With regard to the allegation about the existence of a house on this plot, it is seen that the said fact is denied.
The respondents rely upon some statements recorded by the revenue authorities suggesting that there was no house on this plot on the date of the notification.
This is a disputed question of fact.
Appellant No. 2 who claims to be the owner of plot No. 261 is stated to have purchased it on November 17, 1980 after the impugned notifications were published.
The title of appellant No. 3 to plot No. 133 is denied by R. K Kannaujia, Secretary, Krishi Utpadan Mandi Samiti, Kheragarh.
In this state of affairs where there are disputed questions of fact it cannot be said that the appellants have made out any case for interference under Article 226 of the Constitution.
On behalf of the appellants reliance is, however, placed on a decision of this Court in State of Punjab vs Gurdial Singh & Ors.(I) In that decision the main point made out was that the acquisition proceedings had been engineered mala fide by a State Minister.
We do not have any such allegation in the present case.
In the circumstances of this case we do not find that there is any ground to hold that the order made under section 17 (4) of the Act exempting the operation of section 5 A of the Act is bad in law even though there appears to be some administrative delay in commencing the construction of the Market Yard.
Some photographs of the land produced before us, however, show that the work of construction has already been commenced.
We do not, therefore, find that there is any ground to interfere with the order of the High Court dismissing the writ petition.
The appeal fails and it is dismissed with costs.
H.S.K. Appeal dismissed.
|
On January 8, 1980 the respondent State issued a notification under Sec. 4 (1) of the Land Acquisition Act of 1894 for acquisition of 60 adjoining plots of land of two small villages for construction of a market yard.
The notification also contained an order of the Government made under Sec.
17(4) of the Act directing that Sec.
5A would not apply to the said proceedings.
The notification was published in the Official Gazette dated January 9, 1980.
That notification was followed by another notification dated January 9, 1980 issued under Sec. 6 of the Act.
This notification contained an order made under Sec.
17 (1) of the Act authorising the Collector to take possession of the plots.
The notification was published in the official Gazette dated January 10, 1980.
The possession of the plots was taken in course of the acquisition proceedings.
In or about June 1982 notices were issued by the Collector to the interested persons for determining the compensation payable to them.
By filing a writ petition in the High Court the appellants questioned the validity of the acquisition proceedings in regard to certain plots on the grounds that: (1) they had no knowledge of the acquisition proceedings and were prejudiced by the order made under sec.
17 (4); (2) there was no urgency sufficient in law to sustain the order made under Sec.
17 (4); and (3) Sec.
17 (4) would not be applicable because on a part of a plot of land there was a house.
The High Court dismissed the writ petition.
Hence this appeal.
Dismissing the appeal, ^ HELD: In a small place where these plots are situate, the acquisition of these lands would be the talk of the town in a shortwhile and it is difficult to believe that the appellants who are residents of that place would not have known till July 1982 that the impugned notification had 418 been published in 1980.
Any interference in this case filed after two and a half years with the acquisition proceedings is likely to cause serious public prejudice.
This appeal should, therefore, fail on the ground of delay alone.
[420G H] Appellant No. 1 claims to be the owner of plot No. 249.
On behalf of the respondents it is urged that appellant No. 1 is recorded only as a co tenure holder alongwith five others and they have not impeached the notifications.
With regard to the allegations about the existence of a house on this plot, it is seen that the said fact is denied.
The respondents rely upon some statements recorded by the revenue authorities suggesting that there was no house on this plot on the date of the notification.
This is a disputed question of fact.
Appellant No. 2 who claims to be the owner of plot No. 261 is stated to have purchased it on November 17, 1980 after the impugned notifications were published.
The title of appellant No. 3 to plot No. 133 is denied by R.K. Kannaujia, Secretary, Krishi Utpadan Mandi Samiti, Kheragarh.
In this State of affairs where there are disputed questions of facts it cannot be said that the appellants have made out any case for interference under Article 226 of the Constitution.
[421B D] There is no ground to held that the order made under section 17 (4) of the Act exempting the operation of section 5 A of the Act is bad in law even though there appears to be some administrative delay in commencing the construction of the Market Yard.
[421F G] State of Punjab vs Gurdial Singh & Ors., ; , referred to.
|
Appeal No. 873 of 1966.
Appeal by special leave from the judgment and order dated March 26, 1965 of the Calcutta High Court in I.T. Ref.
No. 107 of 1960.
Sukumr Mitra and D. N. Mukherjee, for the appellant.
Niren De, Attorney General, section C. Manchanda and R. N. Sachthey, for the respondent.
It was stipulated internal that the lessee could assign the lease with the consent of the lessor.
He could after the structures on the premises so as, to convert them into a cinema if necessary.
After expending Rs. 35,000/ on some alterations to the premises the assessee felt the necessity of having some more money in order to convert the building into a cinema.
He entered into a lease on February 23, 1946 with three persons, namely, Nani.
Gopal Dutt, Makhan Lal Dutt and Shiv Kumar Khanna.
By this lease, the building which was called 'Khanna Cinema house ' at 157, Upper Circular Road, Calcutta was demised to the lessees for a period of 30 years.
The lessees agreed to pay under the indenture of lease Rs. 55 200/ to the lessor towards the cost of erecting the said cinema.
The rent which was agreed to be paid was Rs. 2,100/ per month.
It was payable with effect from June 1, 1946.
It is necessary to set out the relevant portion of the lease "And whereas the lessor obtained sanction from the Corporation of Calcutta and other necessary authorities and commenced the erection of a Cinema House the estimated total cost of which is about Rs. 1,00,000/(Rupees one lac).
And whereas the lessees agreed to pay to the lessor a sum of Rs. 55,200/ (Rupees Fifty five thousand and two hundred) towards the cost of the erection of the said cinema house according to their suggestion and other charges and expenses 464 incurred therefore by the lessor.
And whereas the construction of the said Cinema House is almost complete and is expected to be completed by the end of March, One Thousand Nine Hundred and Forty six and whereas the lessee have called upon the lessor to grant to them a lease of the said Cinema House which the lessor has agreed to do upon payment by the lessees of the said agreed sum of Rs. 55,2,00/ (Rupees fifty five thousand and two hundred), towards the costs of building the said Cinema House and whereas the lessees have paid to the lessor the said sum of Rs. 55,200 (Rupees Fifty five thousand and two hundred) for which separate receipt has been granted by the lessor." After the Cinema House had been completed the lessees entered into possession and started exhibiting shows there.
For the assessment year 1947 48 the corresponding account ing year being the financial year ending March 31, 1947, the Income tax Officer sought to treat the sum of Rs. 55,200/ received by the assessee as his income.
The contention of the assessee was that the aforesaid amount should be treated as capital receipt.
Alternatively if it was to be treated as salami (premium) and was to be taxed as a revenue receipt it should be distributed evenly over the entire term of the lease i.e. 30 years.
The Income tax Officer did not 'accept either of the contentions of the assessee.
It was held by him that the lease was pot permanent but was temporary and that the salami had been fixed as an advance payment of rent and not as payment for transfer of the lease hold interest.
According to him the system of accountancy for this source of income being on, cash basis the whole of the receipt of salami was liable to be taxed as one year 's income in the year of the receipt.
The assessee appealed to the Appellate Assistant Commissioner who agreed with the Income tax Officer.
In his view the lessees were under no legal obligation to contribute towards the cost of construction of the cinema house and the sum of Rs. 55,200/ constituted payment of advance rent.
The assessee appealed to the Tribunal which held that the receipt of the aforesaid amount was in the nature of advance payment of rent since the assessee was short of funds at the time the lease was entered into and that the lease was for a short term and that the amount in question represented consolidated rent for thirty years paid in advance.
The High Court answered the question which was refer red in the affirmative and against the assessee.
According to the High Court the only object of the payment of the sum of Rs. 55,200 could be to advance the cost of construction or to meet the existing liabi lities of the assessee for completing the cinema house.
It was observed: 465 "Further it should be noted that the period of lease is only for 30 years and the assessee 's investment on the Cinema is about Rs. 60,000/ , Rs. 35,000/ being the costs of construction and Rs. 25,000/ being costs of machinery with a liability to pay Rs. 750/ rent to the owner of the plot.
As a result of this lease he has got a rent of Rs. 2,100/ for a term of 30 years.
Thus there is no question of payment of any salami as no further inducement for grant of the lease was necessary.
It is obvious that if the cost of construction of the Cinema House would have been met in its entirely by the assessee and thereafter if the assessee would have granted the lease to the lessee, the rent would certainly have been much higher.
Thus, the said sum of Rs. 55,200/ in the absence of a different recital can only be deemed to have been paid as an advance rent in respect of the said Cinema House.
" On behalf of the appellant assessee it has been urged that he sum of Rs. 55,200/ was paid to the lessor in lump for completing the cinema house without which the lessee could not have used the building for the purpose of exhibiting cinematograph films.
According to the recitals in the deed which must be given due effect the lessees agreed to give this amount towards the cost ,if erection of the cinema house according to their suggestion and 'or defraying other charges and expenses.
The payment of rent was expressly stipulated at the rate of Rs. 2,100/ per month and there was no indication whatsoever that any different or higher rate of rent was agreed to.
It is further submitted that there was no material or evidence on which it could be found that the cinema would have fetched, any higher rent, the admitted cost of construction being about Rs. 1,00,000/ .
Alternatively the sum of Rs. 55,200/ could be regarded only as payment of salami (premium) and could not be treated as revenue receipt, the payment being of a non recurring nature.
It seems to us that the departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200/as advance payment of rent.
The lease by which the cinema house was demised did not contain any condition or stipulation from which it could be inferred that the aforesaid amount had been paid by way of advance rent.
The transaction embodied in the indenture of lease was clearly business like.
The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and requirement of the lessees.
The lessees agreed to pay him the aforesaid amount by way of a lump sum without 466 making any provision for its adjustment towards the rent or repayment by the lessor.
The essential question, however, is whether on the terms of the lease and in the absence of any other material or evidence could it be hold that the sum of Rs. 55,200/was paid by way of advance rental ? The view which has been expressed by the Tribunal as also the High Court that the lease was for a comparatively short period of thirty years and that the aforesaid amount had to be spread over that period by way of rent in 'addition to a rental of Rs. 2,100/ per month cannot be sustained as no foundation was laid for it by any cogent evidence The departmental authorities can well be said to have based their decision on mere conjectures as there was nothing whatsoever to substantiate the suggestion that the real rental value of the cinema house was in the region of Rs., 2,250/ per month and not Rs, 2,100/ which was the agreed rent.
It can equally well be said that the payment of the amount in question to the appellant was in the nature of a premium (salami).
In the words of Lord Greene M. R. in Henriksen V. Grafton Hotel Ltd.(") "A payment of this character appears to me to fall into the same class as the payment of a premium of a lease, which is admittedly not deductible.
In the case of such, a premium it is nothing to the point to say that the parties if they had chosen, might have suppressed the premium and made a corresponding increase in the rent.
No doubt they might have.
done so, but they did not do so in fact.
" Fazl Ali J.,(as he then was in Commissioner of Income tax, Bihar & Orissa vs Viswesh war.
Singh(2) referred to the distinction between a single payment made at the time of the settlement of the demised property and recurring payments made during the period of its enjoyment by the lessee .
This distinction, according to the learned Judge, is clearly recognised in section 105 of the Transfer of Property Act which defines both premium and rent.
This is what was observed at page 545 "It is obvious that if the premium represents the whole or part of the price of the land it cannot be income.
As pointed out by Sir George Lowndes in the Commissioner of Income tax, Bengal vs Messrs. Shaw Wallace & Company,: income in the Indian Income tax Act 'connotes a periodical monetary return, coming in 'with some sort of regularity or expected regularity from definite sources.
The premium of salami which is paid once for.
all 'and is not recurring payment, hardly satisfies this test.
I concede that in some cases ' where the rent is ridiculously low and the premium abnormally high, it may be possible to argue that the premium includes advance rent. . (1) 24 T. 453.
(2) 467 It has not beep even remotely suggested in the present case that the rent of Rs. 2100 per month was ridiculously low as compared with the, amount of Rs. 55,200 paid in lump sum.
It is true that the question whether premium is a capital, or a revenue receipt cannot be decided as a pure question of law.
Its decision necessarily depends upon the facts and circumstances of each case.
It would not, however, be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt.
There is another factor which is of substantial importance in the present case.
According to the terms of the lease the payment of rent was to commence not from the date of the lease which was February 23, 1946, but with effect from June 1, 1946.
It is also not disputed that the lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease.
these facts coupled with the payment of a lump sum which was of a non recurring nature showed that the amount in question had all the characteristics of a capital payment and was not revenue.
This would be.
in accord with the principles laid down by this Court in Member for the Board of Agricultural Income tax vs Sindhurani Chaudhu.
rani & Others(1) which was a case of settlement of agricultural land but in which the principles governing the payment of premium or salami have been fully discussed.
For the reasons given above we hold that the question which was referred to the High Court ought to have been answered in the negative and in favour of the assessee.
The appeal is accordingly allowed.
with costs in this Court and the High Court and the answer returned by the High Court is hereby discharged.
G.C. Appeal allowed.
|
On July 19, 1945 the assessee took an lease certain premises in Calcutta on a monthly rental.
He made some alterations in the premises so as to convert it into a cinema house but found himself short of money.
As permitted by the terms of his lease he leased the premises on February 23, 1946 to certain parties.
According to the terms of the indenture the lessees agreed to pay him Rs. 55,2GO towards construction of the cinema house which would on completion be let to them at a monthly rental of Rs. 2,100 payable with effect from June 1, 1946.
The Income tax authorities treated the sum of Rs. 55,200 thus received as taxable ;and the High Court on reference held the same.
in appeal by the assessee this Court had to consider whether the receipt was taxable.
HELD : (i) The departmental authorities as well as the High Court were in error in treating the amount of Rs. 55,200 as advance payment of rent.
The lease by which the cinema house was demised did not contain any condition or stipulation from which it could be inferred that the aforesaid amount had been paid by way of advance rent.
The transaction embodied in the indenture of lease was clearly business like.
The lessees wanted the building for running it as a cinema house and the lessor agreed to give it to them but apparently represented that he did not have enough money to complete it in accordance with the suggestions and requirement of the lessees.
The lessees agreed to pay him the aforesaid amount by way of a lump sum without making any provision for its adjustment towards the rent or repayment by the lessor.
On the terms of the lease and in the absence of any other material or evidence it could not be held that the sum of Rs. 55,200 was paid by way of advance rental.[465 G 466 B] (ii) The question whether premium is a capital or a revenue receipt cannot be decided as a pure question of law.
Its decision necessarily depends upon the facts and circumstances of each case.
It would not however be wrong to say that prima facie premium or salami is not income and it would be for the income tax authorities to show that facts exist which would make it a revenue receipt.
[467 B] According to the terms of the lease, in the present case ' the payment of rent was to commence not from the date of the lease which was February 23, 1946 but with effect from June 1, 1946.
The lessees entered into possession after the cinema house had been completed which was subsequent to the date of the lease.
These facts coupled with the payment of a lump sum which was of a non recurring nature showed that the amount in question had all the characteristics of a capital payment and was not revenue.
[467 C D] Henriksen vs Grafton Hotel Ltd., , Commissioner of Income tax, Bihar & Orissa vs Visweshwar, [1939] 7 I.T.R. 536 and 463 Member for the Board of Agricultural Income tax vs Sindhurani Chaudhurani & Ors., , applied.
|
n No. 340 of 1972.
(Under article 32 of the Constitution of India).
P.H. Parekh and Miss Manju Jetlcy, for the petitioners in W.P. 340/72 excepting petitioner No. 59 and for petition ers in W.P. 1526/ 73.
Petitioner No. 59 in W.P. No. 340/72 in person.
Yogeshwar Prasad, S.K. Bagga, Mrs. section Bagga and Miss Yesh Bagga for the petitioner in W.P. No. 286/74.
Niren De, Attorney General in writ petition 340, Sardar Bahadur Saharya and Vishnu Bahadur Saharya, for respondents Nos. 1, 3, 4, 5 and 15 in W.P. 340/72 and respondents in all the W.Ps.
K.J. John for M/s. J. B. Dadachanji & Co. for R.R. 2, 6, 8, 10, and 12 in W.P. 340 & 1526 and R.R. 6, 8, 9, 11 and 12 in W,P. 286/74.
S.K. Mehta, K.R. Nagaraja and P.N. Puri for R.R. 13 178 in W.P. 1526/73.
The Judgment of the Court was delivered by RAY, C.J.
This Court on 29 August, 1974 appointed Shri Debabrata Mookerjee Chairman to convene, fix the date and hold the meeting of New Friends Cooperative House Build ing Society Ltd. referred to as the Society in accordance with the provisions of the Delhi Co operative Societies Act, 1972.
This meeting was direct 374 ed to be held for the purpose of electing the members of the New Managing Committee The Chairman was directed to look into each and every disputed question of membership.
The Chairman was further directed to decide whether the persons had been rightly or wrongly declared to be defaulters.
The order further directed that if the Chairman came to the conclusion that the person had been wrongly declared to be a defaulter, the Chairman would include him or her in the list of members.
The Chairman was also asked to give effect to all orders of this Court already made in regard to persons who were declared defaulters and who according to orders of this Court on payment of moneys are not and cannot be treat ed defaulters.
The Chairman was asked to go into cases where money had been sent and not accepted.
If the Chairman came to the conclusion that money had been wrongly not accepted, the Chairman would decide the same in accordance with Rules and Bye laws of the Society.
There are further details in the order dated 29 August, 1974.
In the order dated 29 August, 1974 Brij Mohan Malhotra was given liberty to adduce proof before the Chairman that the money was tendered Within time.
If the Chairman came to the conclusion that it was tendered in time, he would decide in accordance with Rules and Bye laws of the Society.
The Chairman was entitled to scrutinise whether any person had been either illegally brought in as a member or illegally removed, having regard to the rules, bye laws and regulations of the Society.
Inder Bir Kaur alleged that she had been illegally removed from membership.
The Chairman was directed to go into the question.
The order was made in two writ petitions No. 340 of 1972 and 1526 of 1973 and in a number of miscellaneous applica tions.
On 6 July, 1971 the Lt. Governor passed an award direct ing the Society to pay Rs.22 lakhs to the Delhi Administra tion.
On 9 July, 1971 the Lt Governor by a notification removed the elected Managing Committee and appointed a nominated ' Managing Committee under Rule 56 of the Rules made under the Bombay Cooperative Societies Act, 1925 here inafter referred to as the Bombay Act which applied to Delhi.
The term of the Managing Committee was for one year.
On 23 October, 1971 the nominated Managing Committee passed a resolution to make the award rule of the Court.
On 18 December, 1971 the nominated Managing Committee passed a resolution for having direct sub leases.
On 22 January, 1972 the nominated Managing Committee called for more funds.
On 5 July, 1972 the Lt. Governor issued second notification extending the term of the nominated Managing Committee by two years.
The Society was the subject matter of two writ peti tions.
287 members of the Society filed writ petition No. 340 of 1972 hereinafter referred to Raj Rani 's petition.
The members challenged 375 the vires of Rule 56 of the Society on the ground that the rule.was ultra rites section 71 of the Bombay Act and fur ther that the rule was bad on account of excessive delega tion.
The petitioners contended that action under Rule 56 could not.
be taken without complying with the provisions of section 46A of the Bombay Act which was applicable to.
Delhi at the relevant time.
The petitioners also challenged some notifications on the ground that the Lt. Governor having exercised his powers once could not extend the term, In short, it was said that the power of the Lt. Governor was exhausted.
The other challenges were that the notifications were not speaking order and were made malafide.
The broad challenge in the petition was against the extension of term of the Managing Committee.
On 29 August, 1972 Rule Nisi was issued.
On 30 April, 1973 the nominated Chairman of the Managing Committee issued a circular asking the members of the Socie ty to pay certain amount.
On 6 July, 1973 this Court restrained the Society and its Chairman from declaring any member a defaulter. 'On 13 August, 1973 this Court directed that all the interim orders passed in the writ petition should be confined to the petitioners in Raj Rani 's peti tion.
On 16 August, 1973 K.V. Johar filed a writ petition in a representative capacity under Order I Rule 8 of the Code of Civil Procedure.
This is writ petition No.
1526 of 1973 hereinafter referred to as Johar 's petition.
On 20 August, 1973 this Court issued Rule Nisi in Johar 's petition.
On 17 August, 1973 the nominated Managing Committee declared 321 members as defaulters.
This Court on 21 Sep tember, 1973 restrained the Society from taking any steps in pursuance of the resolution dated 17 August, 1973 against the petitioners and all other members of the Society.
On 29 November, 1973 respondent No. 6 filed an applica tion in Johar 's petition for vacating the stay order granted on 21 September, 1973.
An application for vacating the stay order granted on 6 July, 1973 in Raj Rani 's petition was not pursued.
This Court vacated the stay granted on 21 Septem ber, 1973 in Johar 's petition and granted a fortnight 's time to make the requisite payment.
On 6 January, 1974 the nominated Managing Committee declared 39 members as defaulters for non payment of dues, 42 members as defaulters for not submitting the affidavits.
This was one of the controversies which formed the subject mattter of the enquiry made by the Chairman.
On 25 January, 1974 the nominated Managing Committee decided to enrol 60 new members.
On 26 January, 1974 a confidential letter was addressed by respondent No. 6 to the Lt. Governor seeking his approval to the enrolment of 60 new members and allotment of plots to them.
On the same day, the Lt. Governor addressed a letter to respondent No. 6 giving his approval.
The enrolment of 8 1546SCI/76 376 new members on 25 January, 1974, the approval of the Lt. Governor on 26 January, 1974 and the allotment of plots to those 60 new members formed a big controversy which was also enquired into by the Chairman.
Two Civil Miscellaneous Petitions No. 1683 and 1072 of 1974 challenging the declaration of defaulters and the enrolment of new members were filed in this Court in February, 1974.
C.M.P.No.1683 of 1974 is in Raj Rani 's petition and C.M.P.No.
1072 of 1974 is in Johar 's petition.
This Court on 29 March, 1974 directed that all the papers including resolutions, original applications, original allotments should be produced in this Court on 4 April, 1974.
This Court also restrained the Managing Committee by an injunc tion from talking any steps in any manner.
On 4 April, 197 4 this Court passed directions in respect of persons who had made part payments within the time prescribed or even beyond the time prescribed not to be treated as defaulters.
This Court mentioned in its order that the allotment of plots to 60 new members who were characterised by the petitioners as very important persons appeared to have been made in undue haste and the persons in the Waiting list were not considered and that no notice was given to persons inviting application.
This Court directed that the said list of 60 new members had to await final adjudication by.
this Court.
This Court also directed that in case of 60 allot tees no further steps should be taken.
This Court directed that the case of 24 defaulters would be considered if it came to the conclusion that the allotment in favour of 60 new members would be treated as defaulters.
In the order dated 4 April, 1974 petitioners No. 60, 46, 216, 171 and 165 in Raj Rani 's petition who paid in part after due date were not to be treated as defaulters and they were given four weeks time to pay the balance.
It was said that if they failed to pay the balance within the time granted they would be treated as defaulters.
Petitioners No. 1,118, 43 and 287 in Raj Rani 's petition were stated to have paid in full but after the due date.
They were not to be treated as defaulters.
It was also said that if they had not paid the full amount, they were also given four weeks time for paying the balance,if any.
If they did not pay the balance within the time granted they would be treated as defaulters.
In Johar 's petition section Diwan, Virendra Singh, Dalip Singh and Hari Singh were stated to have made payments in part beyond time.
Iqbal Khanna and H. Bhatia were stated to have made payments in part within time.
They were all given four weeks time from the date of the order and in default of payment within the time they would be treated so defaulters.
Ten other persons in Raj Rani 's petition and 14 persons in Johar 's petition were said not to have paid within time.
A list of 31 sons was handed up to this Court by the petitioners.
These 31 persons were alleged to have been admitted as members and to have been allotted plots.
It was contended that this allotment is irregular.
These allotments were made on 26 January, 1974 to which reference has already been made.
It was 377 said that the list of 31 persons would await final adjudica tion.
Ten defaulters in Raj Rani 's petition and 14 de faulters in Johar 's petition aggregating 24 defaulters were to be considered at the time of final adjudication.
It was said that if the allotment in respect of 31 per , sons could not be allowed to stand then the cases of these 24 persons would be considered.
In this back ground on 29 August, 1974 when the two writ petitions filed by Raj Rani and K.V. Johar came up for heating this Court appointed Shri Debabrata Mookerjee as Chairman of the Society.
It may be stated here that some time in 1975 some one started a suit against the Chairman to stop the enquiry by him.
The matter was brought to the notice of this Court.
Some malicious and baseless allegations were made against the Chairman.
Under these circumstances this Court direct ed notice to the respondent who filed the suit to show cause why he should not be committed for contempt.
The Chairman was in the meantime asked to continue and he was directed to look into each and every matter as mentioned in the earlier orders.
The Chairman between 17 March, 1975 and 5 August, 1975 restored the membership of the alleged defaulters.
On 26 April, 1976 tentative voters list was published.
On 14 May, 1976 the Chairman informed the parties that election would be held on 29 August, 1976.
On 12 July, 1976 the Chairman informed the parties that the election would be held on 29 August, 1976 at Mavalankar Hall.
On 27 July, 1976 the Chairman declared that of the 60 new members who had been described as very important persons 21 did not have applications for membership and 38 were not legally admitted members and could not be included in the list.
The Chair man said that the allotment of plots in their favour could not be upheld.
On 28 July, 1976 the list of members was published.
On 17 August, 1976 there was scrutiny of the ballot papers.
On 24 August, 1976 11 persons out of the 60 persons who were enrolled members on 25 January, 1974 and allotted plots on 26 January, 1974 filed two Civil Miscellaneous praying for an order restraining the Chairman from holding the election on 29 August, 1976 These applications were held without serving any party to the proceedings contrary to the rules and practice of this Court.
On 25 August, 1976 coun sel for those petitioners mentioned the applications before the Court presided over by Khanna, J. asking that the applications filed might be heard.
It was also mentioned without informing the parties.
On 27 August, 1976 this Court further adjourned the applications.
On 29 August 1976 the meeting was held and voting took place at Mavalankar Hall.
On 23 September, 1976 the Chairman submitted his report and give copies to the parties.
On 15 October, 1976 11 persons who 378 had made the two applications for restraining of holding of the election filed an application for adjournment of the case for two months.
This Court cannot help observing two features.
One is that an attempt was made some time in the year 1975 to restrain the Chairman from proceeding with the enquiry by filing a suit against him and making baseless allegations.
It is only because this Court took immediate notice of the matter that the frivolous suit which had been filed in abuse of process of court was put an end to.
The second is that on the eve of the election another attempt was made to.
restrain the Chairman from holding the election.
These facts.
along with the attempt on the part of those 11 peti tioners to keep the matter adjourned for two months indicate the persistent attitude on the part of some of those persons to mark time for some oblique purposes.
In view of the importance of issues involved and the gravity of the situation where interest of ordinary citizens was sacrificed to meet the interest of persons of importance and influence that this Court took the aforesaid steps, in order to put an end to the litigation and the controversies, It was to be kept in the forefront that the Society is not yet the lessee of the Government in respect of the land which is to be allotted to the members.
In Volume II in Raj Rani 's petition No. 340 of 1972 appears the printed memorandum agreement to be entered into between the Society and the President of India in respect of land which will be allotted to the members of the Society, On 3 August, 1967 the Deputy Secretary, Delhi Administration wrote to the Secretary of the Society, inter alia, as follows: "I am desired to make it clear that the list of members submitted with your letter ' has been treated as final and no change in that list can be made without prior written permission of the Delhi Administration." The printed memorandum of agreement has three recitals.
One of the racitals is that whereas the Society has depos ited with the Chief Commissioner the sum of Rs.41, 62, 456.61 and has further agreed to deposit with the Chief Commissioner the additional sum or sums as hereinafter provided, being the amounts agreed to be paid by the Society to the President by way of premium for the grant to the Society of the lease hereinafter mentioned which amounts, pending the grant of the said lease, are to be a security to the President for due performance by the Society of the terms of the Agreement.
It is agreed between the parties, inter alia, as follows: 1.
The President hereby grants f0r a period of three years commencing from 13 February, 1973 a licence to the Society to enter upon the said land only for the purposes of making surveys and taking measurements and levels for preparing a lay out plan.
Upon the completion of the development of the land in accordance with the provisions contained herein and to the satisfaction of the Chief Commissioner and issue by him of a certificate to that effect 379 and provided that the other conditions of the Agreement have been duly observed, the President will, in .considera tion of the expenses incurred by the Society on the develop ment of the land and the payment of the premium and of the yearly rent as herein provided and of the covenants on the part of the Society to be;contained in the lease, grant to the Society and the Society ,shall accept a lease of such of the residential plots as may be determined by the Chief Commissioner in ,his absolute discretion.
XV(a).
After the execution and registration of the lease, the Society shall sub lease, within such time and on such premium and yearly rent as may be fixed by the President, one residential plot to each of its members who or whose wife/husband or any of his/her dependent relatives including unmarried children does not own, in full or in part, on the free hold or lease hold basis, ,any residential plot or house in the urban areas of Delhi, New Delhi or Delhi Can tonment and who may be approved by the Chief Commissioner.
Reference to the Agreement is necessary to show that the Society is not yet lessee of the Government in respect of the land.
This is a mere agreement for the grant to the Society of the lease.
The Government refused to grant lease.
Thereafter the matter was referred to the arbi tration of the Lt. Governor.
The Lt. Governor made an award directing the Society to pay Rs.22,45,742/ as the balance amount representing the cost of land.
In 1972 a supplementary agreement was made between the President of India and the Society.
One of the recitals in that agreement mentions that the Society has not completed the development of the land and the members of the Managing Committee resolved that the Lt. Governor of Delhi be re quested to allow the members to pay their individual dues to the Administration to evacute their sub teases.
This recital indicates that there was an attempt on the part of individual members to pay dues to the Society as well as to the Government.
It can, therefore, be seen that membership of the Society and the allotment of lands are different matters.
One of the main contentions before the Chairman was in regard to membership of 60 persons.
These 60 persons were admitted to membership on 25 January, 1974.
The Lt, Governor approved of their membership on 26 January, 1974.
The Chairman found that of these 60 persons 21 had at one time or another withdrawn their membership.
10 out of those 21 had either never applied or never paid the requi site membership fee.
The result, according to the Chair man, was that the cases of 39 persons were to be consid ered.
The Chairman noticed that "many of these 60 persons were highly placed Government officials and friends and relations of persons prominent in public life." Another allegation was that many of them happened "to be close relations or friends and members of the nominated Managing Committee.
" At the meeting held on 27 July, 1976 the Chairman re ferred to Rules 24 and 30 of the 1973 Delhi Cooperative Societies Rules.
These 380 rules were under the Delhi Co operative Societies Rules 1972 which replaced the Bombay Act 1925 in relation to the Union Territory.
These rules relate to conditions to be complied with for admission to membership.
Bye law 5 of the Society Bye laws was also referred to by the Chairman.
Broadly stated, Rule 24 requires a person to apply in writing in the form laid down by the Society for membership.
His application is to be approved by the Committee of the Society.
He has to fulfil other conditions laid down in the Act, the Rules and the Bye laws.
Rule 25 of the Delhi Co operative Societies Rules, 1973 provides toter alia that no person shall be eligible for admission as member of a co operative society, if in the case of membership of a housing society (1 ) he owns a residential house or a plot of land for the construction of a residential house in any of the approved or up approved colonies or other localities in the Union Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children on lease hold or free hold basis; (2) he deals in purchase or sale of immovable property either as principal or as agent in the Union Territory of Delhi; or (3) he or his spouse or any of his dependent children is a member of any other housing society except otherwise permitted by the Registrar.
Rule 25(2) provides that if a member becomes or has already become subject to any disqualifications specified in sub rule (1), he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred.
Rule 30 deals with the disposal of application for admission of members.
The rule provides that on receipt of an application for membership, the co operative society shall enter particulars of the application in the register of applications in the form mentioned therein.
The co opera tive society shall dispose of an application received for admission as member as early as possible and in no case later than the expiration of a period of one month from the date of receipt of the application by the Society.
In case of refusal to admit, such society shall communicate its decision together with reasons thereof.
The appeal to the Registrar lies against the order for refusal to admit a member.
An important feature in rule 30 is the date of receipt of application for membership because the applica tion is to be dealt with within one month.
Rule 30(4) provides that the person whose membership has been approved by the Managing Committee of a co operative society shall deposit the membership fee, and the amount of the qualify ing shares necessary to become a member, within 14 days of the passing of the resolution of the Managing Committee approving the membership of the person concerned.
Bye law 5, inter alia, provides that every person seek ing membership of the Society shah sign a declaration to the effect that he or his wife (she or her husband) or any of his/her dependents does not own a dwelling house or plot in Delhi and that he/she is not a member of any other coopera tive house building society.
381 Judged by these rules and considering the rival conten tions of the parties the Chairman found that of the 39 cases there was only one case of N.K. Mukherjee M. No. 1526 which fulfilled the requirements of the rules and the bye laws and the Chairman in his report declared him as having been validly accepted as member.
Out of those 39 persons 20 applications did not bear any date.
The date of an applica tion, the prescription of time for deposit of the membership fee and the amount of qualifying share and the filing of the requisite declaration arc formalities which could not be disregarded.
The Chairman rightly came to the conclusion that out of 39 persons except N.K. Mukherjee the other 38 were not legally admitted to the membership and, therefore, they could not be treated as members.
The Chairman in paragraphs 9 to 16 of the Report consid ered the cases of several persons who. had been declared defaulters.
He rightly came to the conclusion that 108 persons mentioned in Annexure 'C ' should be restored to membership.
The Chairman next considered whether there should be a waiting list.
A list of 102 persons described as the wait ing list was forwarded and endorsed by the officers of the Delhi Administration.
The Chairman came to the conclusion that of the 102 persons on the list, only a few prosecuted their claims before the Chairman and the rest appeared to him to be no more interested in the membership of the Socie ty.
In an annexure marked 'G ' the Chairman rightly included in the waiting list the names of such persons who could be considered.
The Chairman said that 38 persons whose membership was cancelled by him at the meeting held on 27 July, 1976 could apply afresh so that their applications could be considered.
The Chairman said that 24 persons made applications for membership.
The Chairman rightly said that it would be fair to leave the consideration of the applications of these 24 persons to the new Managing Committee and that their names should be kept in a waiting list.
The Chairman next found that the Society had received from 4 persons deposits towards the price of the land more than a decade ago but took no steps to return the moneys or to admit them to the benefit of membership.
Again, there were 4 other persons whose land had been acquired by the Delhi Administration.
There was an agreement which required the Society to offer membership to these persons upon their fulfilling the conditions of membership.
The Chairman found that those 4 persons whose land had been acquired had made applications.
The Chairman tightly came to the conclu sion that these 8 persons, namely 4 from whom moneys had been received and the other 4 whose land had been acquired should be accepted as members.
Out of 38 persons whose membership was cancelled by the Chairman on 27 July 11 applied to this Court in C.M.P. No. 2065 of 1976 for an order that admission of 124 members mentioned in 382 Annexure 'C ' to the petition is illegal and for further declaration of revocation of membership of 38 members as mentioned in Annexure 'B ' to the said petition.
These petitioners also asked for an order directing the Chairman not to proceed with the meeting of the Society and the holding of elections on 29 August, 1976.
These 11 persons also made applications C.M.Ps.
No. 8485 and 8486 for filing objections to the report of the Chair man.
They wanted two months to file objections.
It should be stated here that 11 applicants wanted to prevent the holding of the meeting and the election for the purpose of prolonging litigation.
This Court rightly did not prevent the holding of the meeting and the election.
The report of the Chairman shows that the meeting as well as the election was lawfully and validly held.
These 11 persons were given full opportunity to make their submissions by way of objection to the report.
Coun sel appeared and made their submissions.
These 11 persons submitted that no relief can be sought by the petitioners in the writ petitions against the Society and that Article 19 cannot now be invoked for the enforce ment of rights.
Their further submissions were these.
On 6 January, 1974 39 persons were declared defaulters by the Managing Committee for non compliance with the order of this Court passed on 11 December, 1973.
One of those 39 defaulters made an application to this Court on 9 February, 1974 for condonation of delay and for restoration of his membership.
The application was dismissed on 25 February, 1974.
On 4 April, 1974 this Court granted four weeks time to 15 persons out of the 39 declared defaulters and there fore the default of 24 persons was confirmed.
The Chairman re considered the cases of 24 defaulters including the one whose application was dismissed.
These 11 persons submitted that their membership and allotment should have been restored.
The Chairman was also in error in considering the cases of 8 persons because records were not available.
It is significant that out of 1100 members and the several parties to the writ petitions none has taken objec tion to the report of the Chairman.
The only persons who objected are out of the 24 persons those membership and allotment on 26 January, 1974 was cancelled.
These 24 per sons have however been put by the Chairman in a waiting list.
The membership as well as the allotment of plots to these 38 persons is rightly rejected by the Chairman.
The Chairman based his finding on facts of tabulated statements prepared in the presence of counsel and parties in open public hearings.
No challenge can be taken to the dates and facts.
The Chairman rightly found that even if the date of the eligibility certificate is taken as the effective date of application the position cannot be otherwise.
The Chairman rightly found that the records do not indicate that the payment was 383 made within 14 days of the date of resolution.
The Chairman rightly found that the requirement of payment is not proved and there has not been substantial compliance.
The conclu sion is correct and inescapable that the enrolment of 38 persons was not only rushed but was done with unseemly haste.
It also appears from the report of the Chairman that persons the waiting list were not considered before these 38 persons were enrolled as members.
Reference may be made to clause (7) of the Award of the Lt. Governor which was made the rule of Court.
The award is dated 6 July, 1971.
Clause (7) made it encumbent on the Society to act in ac cordance with the award.
There were some persons who were treated by the new Managing Committee as defaulters and these 38 persons were taken by the new Managing Committee unlawfully as members.
The Chairman in Annexure 'C ' restored 108 persons to membership.
These 108 persons had been declared defaulters by the nominated Managing Committee.
This Court by order dated 29 August, 1974 required the Chairman to look into each and every disputed question of membership and to decide as to whether a member has been rightly or wrongly declared a defaulter.
The nominated Managing Committee on 6 January, 1974 declared a number of persons to be defaulters.
The declara tion of defaulters could not have been made except by the General Body with a special majority and with the approval of the Registrar.
The nominated Managing Committee could not have functioned after 1 April, 1973 in view of the provisions of section 92 read with section 32 of the Delhi Co operative Societies Act, 1972.
In view of the award of the Lt. Governor dated 6 July, 1971 the Committee had there after no jurisdiction to declare any member a defaulter.
This Court by order dated 4 April, 1974 observed that the case of 24 defaulters would be considered if it transpired that the list of new allottees could not be allowed to stand.
The act of declaration of defaulters on 6 January, 1974 cannot be dissociated from the enrolment of new allottees on 25 and 26 January, 1974.
The report of the Chairman in restoring 108 alleged defaulters to membership is just and correct.
This Court by Order dated 29 August, 1974 required the Chairman to look into each and every disputed question of membership and to decide whether a person has been tightly or wrongly declared a defaulter.
The order further stated that if the Chairman came to the conclusion that the person has been declared to be a defaulter the Chairman will include him or her in the list of members.
The report of the Chairman is lucid and direct to the point.
The report noticed that there was widespread discontent as to the way in which the affairs of the Society were conducted.
The report said "Allegations of favouritism want of fairplay, mal administration, deliberate suppression of the rights of members were freely made against the nominated Managing Committee in 1971".
The Chairman noticed that there was "nothing to 384 choose between the old elected Committee which was super seded and the nominated Managing Committee which came to take its place".
Letters were hardly replied to.
En quiries were rarely attempted to.
Cheques were hardly ever cashed in time.
Sudden declarations of default were made without following the prescribed procedure laid down in the Act and the Rules.
The nominated Managing Committee issued a circular dated 30 April, 1973 demanding Rs.6 per sq. yard and threatened the members that in case they did not pay the said amount they would be declared defaulters.
This circular is not a notice within the meaning of the bye laws of the Society and declaration of defaulters on the basis of the circular is illegal and contrary to bye laws of the Society.
Further the said circular was despatched after the time for payment mentioned therein was over.
No opportunity was given tog member as required by the mended bye laws to show cause why his right to a plot would not be forefeited for non payment of deposit.
Figures of alleged dues were not mentioned in the circular in most of the case.
In view of the award of the Lt. Governor dated 6 July, 1971 the nominated Managing Committee could not declare, any member to be a defaulter.
Further the order of this Court dated 6 July, 1973 continued to be in force, in so far as the petitioners in Raj Rani 's petition are concerned.
The declaration of defaulters from amongst the petitioners in Raj Rani 's petition was unjustified.
The action of the Managing Committee declaring defaulters was in bad faith because they wanted to confer benefits on other persons under the guise of declaration of defaulters.
This Court in the order dated 4 April, 1974, observed that the cases of 24 defaulters would be considered if it transpired that the list of allottees on 26 January, 1974 could not be allowed to stand.
The Chairman has rightly dealt with the cases of 24 defaulters in view of his right conclusion that the allotments on 26 January; 1974 were bad.
The Chairman considered the cases of 42 persons who had been declared defaulters.
The Chairman rightly came to the conclusion that 30 persons had genuine grievances and he accepted them as members on their submitting fresh affida vits with a view to putting an end to all controversies whether they filed affidavits of not.
R was admitted before the Chairman that all these persons had field their affidavits originally while seeking membership.
The ques tion was whether they filed any fresh affidavits as required by the subsequent direction of the Delhi Development Author ity.
Some of the members contended before the Chairman that they filed amended affidavits.
Some members contended that in spite of their request to give the proforma of the amend ed affidavit the nominated Managing Committee did not give the proforma of the affidavit.
Under these circumstances the Chairman rightly accepted the contentions of 30 out of the 42 persons.
385 The Chairman rightly held that 4 persons whose money was lying with the Society should be made members.
The Chairman also rightly held that 4 persons whose lands had been ac quired by the Society should be accepted as members.
The Chairman in paragraph 37 of the report has indicated that the new Managing Committee should fix priorities in the order mentioned in sub paragraph (a) to (e).
These in sub paragraphs (a) to (b) belong to classes of members in whose favour there was specific allotment as early as the year 1957.
Due communication was made to them about the specific allotment of plots.
They were persons who had paid more than Rs.17,000.
They were declared defaulters for non payment of Rs.3000 or less by the nominated Managing Com mittee as late as the year 1974.
The Chairman rightly put persons in sub paragraphs (a) and (b) in order of priority.
Persons in sub paragraph (c) in paragraph 37 of the Chairman 's report comprise those who were declared default ers round about the year 1962 63.
The amounts paid by persons in sub paragraph (c) are less than the amounts paid by persons in sub paragraphs (a) and '(b).
There was no specific allotment of plots in favour of persons mentioned in sub paragraph (c).
Persons in sub paragraph (c) there fore cannot claim priority over persons in sub paragraphs (a) and (b).
In sub paragraph (c) only one person objected regarding priority.
The other 47 persons accepted their places in sub paragraph (c).
This also shows the justness of the report,.
Subject to the following directions, the report of Mr. D. Mookerjee dated 23 September, 1976 is accepted and con firmed.
The Managing Committee of the New Friends Co opera tive Society Ltd. (hereinafter called "the new Managing Committee") elected at the meeting held on 29 August, 1976 shall assume charge with effect from the date of this order.
The new Managing Committee shall send to all persons referred to in sub paragraphs (a) to (e)of paragraph 37 of Mr. Mookerjee 's report, through Mr. Mookerjee, a letter stating that membership fee and the amount of qualifying share necessary to become a member of the Society and also copies of this order as well as the appropriate forms of application for membership of the Society and of the affida vits to be sent by the applicants to the new Managing Com mittee within one month from the date of this order.
Each person referred to in sub paragraphs (a) to (e) of paragraph 37 shall, if he desires to have any plot allot ted to him, apply for membership of the Society.
All such applications for membership of the Society shall be sent to Mr. Mookerjee within 30 days.
from the date of receipt of the documents referred to in the next preceding paragraph hereof.
If any application is not received by Mr. Mooker jee within the said period, or if the affidavit referred to in the next preceding paragraph is not enclosed with the application, or if any application or affidavit be found by Mr. Mookerjee to be 386 not in compliance with the form of the application and the affidavit sent to the applicant, Mr. Mookerjee shah reject such application.
Such rejection by Mr. Mookerjee shall be final.
All applications for membership along with affida vits, found by Mr. Mookerjee to be in order, will be for warded by Mr. Mookerjee to the new Managing Committee upon the expiry of the said period of 30 days.
Mr. Mookerjee will make a list of the persons whose applications are so forwarded by him to the new Managing Committee.
The new Managing Committee shall convene a meeting of the Committee within 30 days from the receipt of the appli cations along with the affidavits sent by Mr. Mookerjee to the new Managing Committee as aforesaid and pass a resolu tion accepting all such applicants for membership as members of the Society.
The new Managing Committee shall convey to Mr. Moo kerjee its said resolution within 14 days of the passing of such resolution and shall send to Mr. Mookerjee at least as many copies of the resolution as the number of persons who are admitted as members of the Society by virtue of that resolution.
Mr. Mookerjee will thereafter send a copy of the said resolution to each of the applicants Who is admit ted as a member of the Society by virtue of the said resolu tion.
On receipt of the said communication from.
Mr. Mookerjee each person who has been admitted as member of the Society by virtue of the said resolution shall, within 14 days from the receipt of the communication from Mr. Mooker jee, pay to Mr. Mookerjee by Bank Draft (drawn in favour of "New Friends Co operative House Building Society Ltd.") an amount including the membership fee and the amount of quali fying share necessary to become a member of the Society.
Mr. Mookerjee will thereafter forward the Bank Drafts to the new Managing Committee.
Regarding the allotment of plots, the suggestions of Mr. Mookerjee contained in sub paragraphs (a) and (b) of paragraph 37 of his report will be given effect to by the new Managing Committee, subject to the availability of plots and subject also to each person referred to in the said two sub paragraphs and to whom any plot is allotted complying with the direction contained in the preceding paragraph 7 hereof and further subject to each such person paying his full share of the money payable to the Delhi Development Authority under the Supplementary Agreement entered into between the President of India and the Society on 1 Febru ary, 1972 by a Bank Draft drawn in favour of the Delhi Development Authority".
The allotment of plots among persons referred to in sub paragraphs (a)and (b) of paragraph 37 of Mr. Mookerjee 's report shall be in the order of priority mentioned there and already earmarked for them.
If plots which are already earmarked for persons in subparagraphs (a) and (b) are not available then there will be allotments to those persons by draw of lots first among those in sub 387 paragraph (c): and thereafter among those in sub pargraph (b).
Mr. Mookerjee will prepare a list of persons to whom plots are so allotted and send copies of,the list of the new.
Managing Committee and,the Delhi Development Authority and inform the persons to Whom, such allotments are made.
Each person referred to in the said.
sub paragraphs.
(a) and (b) of paragraph 37 and to whom any plot is allotted shall, within (b) days from the receipt of the communication from Mr. Mookerjee as referred to reparagraph 6 hereof, enquire from the Delhi Development Authority as to the sum payable by him to the Delhi Development Authority as afore said and upon receipt of the reply from the Delhi Develop ment Authority pay the sum to the latter by a Bank Draft within 15 days from the date of the receipt of the reply.
In default of such payment the allotment to him will stand cancelled.
In the event of any such cancellation allotment may be made to the next person if any, in this sub para graph.
Thereafter, if any plot or plots remain to be allotted the allotment or allotments shall strictly be in accordance with the order of priority laid down in paragraph 37 of Mr. Mookerjee 's report.
Such allotments shall be made by Mr. Mookerjee by means of draw of lots first among the persons referred to in sub paragraph (c) thereafter among those in sub paragraph (d) and thereafter among those in sub paragraph (e) of paragraph 37 of his report.
Mr. Moo kerjee will prepare a list of persons to whom the plots are so allotted and send copies of the list to the new Managing Committee and the Delhi Development Authority and inform the persons to whom such allotments are made.
Any person referred to in sub paragraphs (c), (d) and (e) of Mr. Moo kerjee 's report who is allotted any plot shall within 14 days from the receipt of the communication from Mr. Moo kerjee to the effect that a particular plot has been allot ted to him enquire from the Delhi Development Authority as to the sum payable by him to the Delhi Development Authority as aforesaid and upon receipt of the reply from the Delhi Development Authority pay the sum to the latter by a Bank Draft within 15 days from the date of the receipt of the reply.
In default of such payment the allotment to him will stand cancelled.
In the event of any such cancellation, allotment may be made to next person, if any, in that subparagraph.
Each allotment of plot, referred to in this order, shall be in accordance with the application of each appli cant for membership referred to in paragraph 3 hereof, that is to say, will not be entitled to any allotment of any land, the area whereof is different from the area mentioned in his application form.
If any person referred to in any of the sub para graphs of paragraph 37 of Mr. Mookerjee 's report has al ready paid any money to the Society and proves such payment to Mr. Mookerjee, the money so paid and proved shall be appropriated towards payment of the amounts mentioned in paragraphs No. 7, 8 mad 11 hereof.
388 14.
Upon allotment of land to any person mentioned in this Report each allottee shall pay to the Society a sum of Rs.1,000/ within one month from the date of such allotment as and by way of costs relating to these proceedings.
In default of payment of such sum, the allotment to such person shall stand cancelled.
In the event of any such default, the procedure laid down in paragraph 10 and 11 hereof shall be followed.
To sum up.
In the event of any lucia default the allotment may be made to the next person, if any, in the sub paragraph group of the defaulting persons and thereafter to next sub paragraph group of persons.
No lease shall be granted to any allottee until and unless all directions contained in this order are fully complied with by him.
The Society shall pay to Mr. Mookerjee a further sum of Rs.45,000/ as his remuneration for the work done by him so far.
The Society shall also pay Mr. Mookerjee a further stun of Rs.5,000/for the work to be done by him under this order and also such further sum or sums as he may intimate to the new Managing Committee as extra expenses, including remuneration for his staff, postage etc.
for the work to be done under this order.
Mr. Mookerjee 's Personal Assistant Mr. Jain will be paid Rs.300/ per month.
This order shall not apply to such members of the Socie ty who have already obtained leases from the President of India.
This order will govern only the affairs of this Society and will not be a precedent for the affairs of any other co operative society.
Some persons have deposited monies with the Registrar of this Court.
The Registrar may hand over the money to the Society.
Writ Petition No. 340 of 1972, 1526 of 1973 and 286 of 1974 and all proceedings in these writ petitions are dis posed of accordingly.
All parties will pay and bear their own costs.
P.H.P. Petitions allowed.
|
On 6 7 1971 the Lt. Governor of Delhi passed an award directing the New Friends Co operative House Building Socie ty Limited to pay Rs.22 lacs to the Delhi Administration.
On 9 7 1971 the Lt. Governor by a notification removed the elected Managing Committee and appointed a nominated Manag ing Commitee under rule 56 of the Delhi Cooperative Socie ties Rules, 1950 framed under the Bombay Cooperative Socie ties Act 1925 as applied to Delhi.
The term of the Manag ing Committee was for one year.
On 23 10 1971 the nominated Managing Committee passed a resolution to make the award of the Lt. Governor a rule of the court.
In December, 1971, the nominated Managing Committee passed a resolution for having direct sub leases and in January 1972 called for more funds.
In July, 1972, the Lt. Governor issued a second notification extending the term of the nominated Managing Committee by further two years.
287 members of the Society filed writ petition No. 340 of 1972, challenging the rites of rule 56 and challenging the action of the Lt. Governor in superseding the elected Managing Committee and in extending the term of the nominat ed Managing Committee by a further period of 2 years.
On 30 4 1973, the nominated Managing Committee issued a circu lar asking the members of the Society to pay certain amounts.
On 6 7 1973, this Court restrained the Society and its Chairman from declaring any member a defaulter.
On 13 8 1973, this Court directed that all the interim orders passed in the writ petition should be confined to the 287 petitioners.
On 16 8 1973, K.V. Johar filed a writ petition in a representative capacity under Order 1 rule 8 of the C.P.C. on behalf of all the members of the Society.
On 17 8 1973, the nominated Managing Committee declared 321 members as defaulters.
On 21 9 1973 this Court restrained the Society from taking any steps in pursuance of the said resolution.
On an application made by respondent No. 6 the stay granted in K.V. Johar 's petition was vacated.
However, application for vacating the stay order in Raj Rani 's petition was not pursued.
On 6 1 1974 the nominated Managing Committee declared 39 members as defaulters for non payment of dues and 42 members as defaulters for not submitting the affidavits.
On 25 1 1974 the nominated Managing Committee decided to enrol 60 new members.
On 26 1 1974 a confidential letter was ad dressed by respondent No. 6 to the Lt. Governor seeking his approval to the enrolment of 60 new members and allotment of plots to them.
On the same day the Lt. Governor gave his approval.
Two C.M. Ps. were filed by the writ petitioners challenging the declaration of the members as defaulters and enrolment of 60 new member`.
This Court on 29 3 1971 di rected that all the papers including resolutions, original applications and original allotments should be produced in the Court.
This Court also restrained the nominated Manag ing Committee by an injunction from taking any steps in any manner.
On 4 4 1974.
this Court passed direction in respect of some members who were declared defaulters and who had made part payments either within the time prescribed or even beyond the time prescribed.
This Court also mentioned that the allotment of plota to 60 new metal:era who were cha racterised as very important persons appeared 372 to have been made in undue haste and the persons on the waiting list were not considered and that no notice was given to persons inviting applications.
This Court directed that the list of 60 new members had to await final adjudica tionand also directed that no further steps should be taken in the case of those 60 allottees.
The Court also directed that the cases of remaining 24 defaulters would be consid ered if it came to the conclusion that the allotment in favour of 60 new members could not be allowed to stand.
Rule 24 of the Delhi Cooperative Societies Rules 1973, requires a person to apply for membership in writing in the form prescribed by the Society.
His application is to be ap proved by the Managing Committee of the Society.
He has to fulfil other conditions laid down in the Act, the Rules and the Bye laws.
Rule 25 provides that a person shall not be eligible for admission as a member if he owns a residential house or a plot of land for the construction of a residen tial house in Delhi.
Rule 30 provides that on receipt of an application for membership the Cooperative Society shall enter particulars of the application in the register of applications in the form mentioned therein.
It also re quires the Society to dispose of the application received as early as possible and in no case later than the expiration of a period of one month from the date of receipt of the application.
Rule 30 further provides that the person whose membership has been approved by the Managing Committee of a Cooperative Society shall deposit the membership fee and the amount of qualifying shares necessary to become a member within 14 days of the passing of the resolution of the Managing Committee approving the membership of the person concerned.
Bye law 5 provides that every person seeking membership of the Society shall sign a declaration to the effect that he or his wife or any of his dependants does not own a dwelling house or a plot in Delhi.
When the writ petitions came up for final hearing along with the C.M.Ps.
on 29 8 1974 this Court appointed Shri Deb Brat Mukherjee as Chairman of the Society.
The Chairman was asked to scrutinise whether any person had been either illegally brought in as a member or illegally removed having regard to the rules, the bye laws and the regulations of the Society.
The Chairman restored the membership of the alleged default ers and published a tentative voters ' list.
The Chairman declared that out of the 60 new allottees 21 did not have applications for membership and 38 were illegally admitted and could not be included in the voters ' list.
The chairman said that the allotment of plots in their favour could not be upheld.
11 persons out of the 60 new allottees filed two C.M.Ps.
in August 1976 praying for an injunction restraining the chairman from holding elections.
These applications were filed without serving any party to the proceedings contrary to the rules and practice of the court.
On 23 9 1976, the Chairman submitted his report.
Allowing the writ petitions, HELD: 1.
The date of the application, prescription of time for deposit of membership fee and the amount of qualifying shares, and the filing of the requisite declaration are formalities which cannot be disregarded.
The Chairman rightly came to the conclusion that the new allottees could not be treated as members.
The new allottees were taken in without considering the persons on the waiting list.
It was incumbent on the Society to act in accordance with clause 7 of the Lt. Governor 's award.
The Managing Committee took 38 persons as members unlawfully.
The declaration of default ers could not have been made except by the General Body with a special majority and with the approval of the Regis trar.
The nominated Managing Committee could not have functioned after 1st April 1973 in view of the provisions of section 92 read with section 32 of the Delhi Cooperative Societies Act 1972.
In view of the award of the Lt. Governor dated 6 7 1971 the Committee had no jurisdiction to declare any member a defaulter.
The act of declaration of defaulters of 6 1 1974 cannot be dis associated from the enrolment of new allottees on 25th and 26th January 1974.
The report of the chairman in restoring membership to the 108 alleged defaulters is just and correct.
The circular dated 30 4 1973 issued by the nominated Managing Committee is not a notice within the meaning of 373 the bye laws of the Society and the declaration of default ers on the basis of the circular is illegal and contrary to the bye laws of the Society.
The circular was despatched after the time for payment mentioned therein was over.
No opportunity was given to a member as required by the amended bye laws to show cause why his right to a plot would not be forfeited.
The order of this court dated 6 7 1973 continued to be in force in so far as the petitionrs in Raj Rani 's petition are concerned.
Therefore, the declaration of defaulters from amongst the petitioners in Raj Rani 's peti tion was unjustified.
The action of the nominated Managing Committee declaring defaulters was in bad faith because they wanted to confer benefits on other persons in the guise of declaration of defaulters.
[381 A B, D, E, H, The Chairman rightly came to the conclusion that out of the 42 declarations of defaulters for not submitting affidavit 30 members had genuine grievances.
[384 F] The Chairman rightly held that the 4 persons whose money was lying with the Society should be made members.
The Chairman also rightly held that the 4 persons whose lands had been acquired by the Society should be accepted as members [385A B] The priority fixed by the Chairmaan about allotment of plots is just.
[385 C] [The Court with a view to ensuring that the persons mentioned in the Chairman 's report should get the reliefs mentioned in the report held that those persons should make fresh applications with affidavits through the Chairman 'and the allotment of plots should be made in accordance with the priority laid down by the Chairman.]
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Civil Appeal No. 2456 of 1987.
From the Order dated 27.5.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E 2312/85 C. K.K. Venugopal, R. Narain, section Ganesh, R. Shah, R.K. Ram and D.N. Mishra for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
In this appeal under section 35L of the Central Excise and Salt Act, 1944 (hereinafter called 'the Act '), the question involved is whether "Decoplast" manufactured by the Asian Paints India Ltd., the appellant herein, is plastic emulsion paint 341 and, therefore, classifiable under Tariff Item 14(I)(3)(iv) of the First Schedule of the Act as plastic emulsion paint or it should be classifiable under Tariff Item No. 14(I)(v) that is as "paints not otherwise specified".
The Customs Excise and Gold (Control) Appellate Tribunal (hereinafter called 'the CEGAT '), by the impugned order challenged in this appeal held that Decoplast is plastic emulsion paint.
The appellant felt aggrieved thereby.
In so holding the Technical Member of the Tribunal observed that in view of its composition, characteristics and uses, Decoplast should be considered as emulsion paint.
The Judicial Member of the Tribunal was of the view that the Revenue had not adduced any evidence of rebuttal of the evidence adduced by the appellant as the commercial understanding but the evidence adduced by the appellant was intrinsically untrustworthy.
Therefore, inspite of the affidavits and absence of evidence in rebuttal, he agreed with the other member that Decoplast is plastic emulsion paint and the appeal before the Tribunal should be dismissed.
It appears that the appellants had filed revision application before the Government of India against the order of the Revenue authorities.
Ultimately, the same was rejected by the Government of India.
It is not necessary to set out in detail all the events.
The appellant had moved the High Court of Bombay against the order of the Government of India and the High Court by its order directed as follows: "The order dated 17th December, 1979 passed by the Govt.
Of India in revision in the Petitioners ' case is set aside inasmuch as the Revision Authorities have not controverted or rebutted the evidence in the form of affidavits relied on by the Petitioners to show that their product could not be regarded as a plastic emulsion paint amongst persons dealing in such products.
The Revision order thus failed to follow the well established rule of interpreting entries in the Excise Tariff namely to classify products by their common parlance and trade understanding and not by their scientific or technical meaning.
It is necessary that the matter be remanded to the Revision Authorities to decide the same afresh according to law.
However, as the Revision Authority under the demanded Central Excise and Salt Act has been replaced by the Customs Excise and Gold (Control) Appellate Tribunal, the said Tribunal is directed to 342 hear the Petitioners ' Revision Petition and to determine the same as an appeal before it.
The Tribunal shall give an opportunity to both the petitioners and the Excise Authorities to rely on any evidence and material either on record or otherwise which they may lead or produce in support of their case.
The parties will be given full opportunity of affidavits if any during the hearing".
In pursuance to the said order, the matter came before the Tribunal.
Before the Tribunal it was contended on behalf of the appellant that the manufacture was water thinable paint but the same could not be held to be plastic emulsion paint for the product was not known in the trade as plastic emulsion paint nor was it bought and sold so.
According to the appellant, the paint essentially comprised of pigment and a binder or a vehicle and that while the binder and the vehicle were interchangeable, it was stated that the binder generally referred to solid part which in this case was synthetic resin and the solvent could be water or some other diluent.
There was elaborate evidence adduced before the Tribunal on behalf of the appellant.
Reference was made to the specifications of plastic emulsion paint as given by ISI.
It was contended on behalf of the appellant that Decoplast could not be considered as plastic emulsion paint for reasons, inter alia, as follow: i) Plastic emulsion paint comprises of one emulsion as against two contained in Decoplast; ii) In the case of plastic emulsion drying takes place by evap oration of water whereas in the case of decoplast by oxidation of alkyd; iii) Trade did not recognise decoplast as plastic emulsion paint; iv) In the literature published by them, decoplast was not described as plastic emulsion paint; v) Decoplast was substitute for cement paint; vi) Even though decoplast could be used both for interior and exterior use, it was a product inferior to plastic emulsion paint; vii) In case of plastic emulsion paint, primer had to be applied to The surface to be pained while in the case of Decoplast on 343 coating on Decoplast itself serves as a primer.
A In support of appellant 's contention, affidavits had been filed by them and the same were considered in extenso by the Tribunal.
Reference has also been made to the Book "Outlines of Paint Technology" by W.M. Morgan.
On the other hand, on behalf of the Revenue, it was stated that it was not disputed that Decoplast is a water soluble paint and that it had got two resins in emulsion form, namely, Polymer Vinyle Acetate and copolymer alkyds.
Attention was drawn to the Indian Standard Specification for plastic emulsion paint, which is as follow: "The material shall consist of pigments with suitable extenders in suitable proportions, in a medium consisting of any state synthetic polymer emulsion in water with other suitable ingredients as may be necessary to produce a material so also satisfy the requirements of this standard.
" Our attention was also drawn to the definition given by ISI, which is as under: "Generally, a paint in which the medium is an 'emulsion ' or an emulsion like dispersion of an organic binder in water.
Industrially the same is mainly restricted to those paints in which the medium is an 'emulsion ' of a synthetic resin.
The medium may also be called a latex by analogy with a natural rubber latex, polyvinyl acetat emulsion paint is a typical example".
The Tribunal addressed itself to the question whether Decoplast could be considered as plastic emulsion paint in view of (i) its composition; (ii) its characteristics; (iii) its uses; and (iv) its reputation in trade parlance.
It is well settled that the commercial meaning has to be given to the expressions in Tariff items.
Where definition of a word has not been given, it must be construed in its popular sense.
Popular sense means that sense which people conversant with the subject matter with which the Statute is dealing, would attribute to it.
See C.I.T., Andhra Pradesh vs M/s. Taj Mahal Hotel, Secunderabad, This Court observed in Indo International Industries vs Commissioner of Sales Tax, U.P., ; that in interpreting items in statutes like the Excise Act or Sales Tax Acts, whose primary object 344 was to raise revenue and for which purpose to classify diverse products, articles and substances, resort should be had, not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.
Justice Cameron of the Canadian Exchequer Court in King vs Planter 's Co., [1951] CLR (exhibit) 122 and the decision of the United States Supreme Court in 'Two Hundred Chests of Tea '; , emphasised that commercial understanding in respect of the tariff items should be preferred.
It was observed that the legislature does not suppose our merchants to be naturalists or geologists, or botanists.
In this case the use of these two items and their composition when analysed, revealed that in essence they performed the same functions as plastic emulsion paint does, though there was some difference in them.
Affidavits of traders and others had been filed.
These were examined and accepted by the Technical Member and these were not rejected by the Judicial Member.
The Revenue did not adduce any evidence in rebuttal.
Therefore, in view of the composition, characteristics, user and how it is known in the trade, the Tribunal came to the conclusion that Decoplast was plastic emulsion paint.
This is a finding of fact arrived at on relevant and valid materials.
There was no misdirection in law.
Therefore, there is no ground for interference with the said order.
In the aforesaid view of the matter, we decline to entertain the appeal under section 35L of the Act.
The appeal is, therefore, dismissed.
G.N. Appeal dismissed.
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% The question as to whether "Decoplast" manufactured by the appellant is plastic emulsion paint or not had been determined in the affirmative by the Revenue, and revision application before the Government of India was rejected.
Thereafter the appellant moved the Bombay High Court, which directed the Customs Excise and Gold (Control) Appellate Tribunal to hear the petition and to decide the same as an appeal before it.
On behalf of the appellant, elaborate evidence had been adduced before the Tribunal.
Reference was made to the specifications of plastic emulsion paint and the definition as given by ISI.
The Tribunal addressed itself to the question whether "Decoplast" could be considered as plastic emulsion paint having regard to (i) its composition; (ii) its characteristics; (iii) its uses and (iv) its reputation in trade parlance, and held that "Decoplast" is a plastic emulsion paint.
Aggrieved by the order the appellant appealed under Section 35L of the Central Excise and Salt Act, 1944 to this Court, which.
Dismissing the appeal, ^ HELD: 1.1 The commercial meaning has to be given to the expressions in Tariff items.
Where definition of a word has not been given, it 340 must be construed in its popular sense.
Popular sense means that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it.
[343G] 1.2 In the instant case the use of these two items and their composition, when analysed, revealed that in essence they performed the same functions as plastic emulsion paint does, though there was some difference in them.
The affidavits of traders and others were examined by the Tribunal.
The Revenue did not adduce evidence in rebuttal.
Therefore, in view of the composition, characteristics, uses and how it is known in the trade, the Tribunal came to the conclusion that "Decoplast" was plastic emulsion paint.
This is a finding of fact arrived at on relevant and valid materials.
There was no misdirection in law.
[344C E] 2.
In interpreting items in statutes like the Excise Act or Sales Tax Act, resort should be had, not to the scientific and technical meaning of the terms or expressions used, but to the popular meaning, that is to say, the meaning attached to them by those dealing in them.
[343H; 344A B] C.l. T., Andhra Pradesh vs M/s. Taj Mahal Hotel, Secunderabad and Indo International Industries vs Commissioner of Sales Tax, U.P., ; ,referred to.
King vs Planter 's Co. [1951] CLR (exhibit) 122 and 'Two Hundred Chests of Tea ', [1824]6 L.Ed. 128, referred to.
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Civil Appeal Nos.
1768 1769/ 72.
Appeals by Special Leave from the Judgment and order dated 15 7 1971 of the Delhi High Court in Sales Tax Reference No. 8 of 1969.
F. section Nariman, (In CA 1768/72), V. section Desai (in C.A. 1769).
M. C. Bhandare (C.A. 1768/72) and Mrs. section Bhandare and Miss M. Poduval for the Appellants.
P. A. Francis, R. N. Sachthey and Miss A. Subhashini for the Respondent.
Y. section Chitale, Vinay.
Bhasin, A. K. Srivastava and Vineet Kumar for the Interveners.
The Judgment of the Court was delivered by PATHAK, J.
This and the connected appeal are directed against the judgment of the High Court of Delhi disposing of a reference made to it under section 21(3) of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi on the following question: "Whether the service of meals to casual visitors in the Restaurant is taxable as a sale: (i) when charges are lumpsum per meal or (ii) when they are calculated per dish ?" The High Court has answered the question in the affirmative.
The appellant runs a hotel in which lodging and meals are provided on "inclusive terms" to residents.
Meals are served to non residents also in the restaurant located in the hotel.
In the assessment proceedings for the assessment years 1957 58 and 1958 59 under the Bengal Finance (Sales Tax) Act, 1941, the appellant contended that the service of meals to residents and non residents could not be regarded as a sale and therefore sales tax could not be levied in respect thereof.
The contention was rejected by the Sales Tax authorities, who treated a portion of the receipts from the residents and nonresidents as representing the price of the foodstuffs served.
At the instance of the appellant, the High Court called for a statement of the case on two questions.
One was whether the supply of meals to residents, who paid a single all inclusive charge for all services in the 559 hotel, including board, was exigible to sales tax.
The second was the A question set forth above.
The High Court answered the first question in favour of the appellant and the second against it.
And now these appeals by special leave.
Tax is payable by a dealer under section 4 of the Bengal Finance (Sales Tax) Act, 1941 on sales effected by him, and the expression "sale ' has been defined by section 2 (g) of the Act to mean "any transfer of property in goods for cash or deferred payment or other valuable consideration including a transfer of property in goods involved in the execution of a contract. ".
The question is whether in the case of non residents the service of meals by the appellant in the restaurant constitutes a sale of foodstuffs.
It appears to us that after the view taken by this Court in State of Punjab vs M/s Associated Hotels of India Ltd.,(1) the approach to the question before us is clearly indicated.
This is a case where the origin and historical development of an institution as profoundly influenced the nature and incidents it possesses in law.
In the case of an hotelier this Court proceeded on the footing that his position in law was assimilable to that of an inn keeper.
At common law an innkeeper was a person who received travellers and provided lodging and necessaries for them and their attendants and employed servants for this purpose and for the protection of travellers lodging in his inn and of their goods(2).
It was hospitality that he offered, and the many facilities that constituted the components of that hospitality determined the legal character of the transactions flowing from them.
Long ago, in Crisp vs Pratt(3) it was pointed out that innkeepers do not get their living by buying and selling and that although they buy provisions to be spent in their house, they do not sell them but what they do is to "utter" them.
"Their gain", it was added, "is not only by uttering of their commodities, but for the attendance of their servants, and for the furniture of their house, rooms, lodgings, for their guests. '`.
This test went to the root and we find it repeated in Parker vs Flint.(4) In Newton vs Trigg(5) Holt, C.J., defined the true status of an inn keeper by reference to the services afforded by him? that he was an "hospitator", and was "not paid upon the account of the intrinsic value of his provisions, but for other reasons: the recompence he receives, is for care and pains and for protection and security. . but the end of an inn keeper in (1) ; (2) Halsbury 's Laws of England, 3rd Edn.
21 p. 442 paras 932.
(3) [1639] Cro. Car. 549.
(4) [1699] 12 Mod 254.
(5) 3 Mod .
2 549SCI/78 560 his buying, is not to sell, but only a part of the accommodation he is bound to prepare for his guests.
" And for the purpose of the question before us is would be relevant to quote Professor Beale(1): As an inn keeper does not lease his rooms, so he does not sell the food he supplies to the guest.
It is his duty to supply such food as the guest needs, and the corresponding right of the guest is to consume the food he needs, and to take no more.
Having finished his meal, he has no right to take food from the table, even the uneaten portion of food supplied to him, nor can he claim a certain portion of good as his own to be handed over to another in case he chooses not to consume it himself.
The title to food never passes as a result of an ordinary transaction of supplying food to a guest." Having proper regard to those particular considerations, it is not surprising that the principle was extended in England to the service OF food at eating places or restaurants.
The keeper of an eating house, or victualler, was regarded fundamentally as providing sustenance to those who ordered food to eat in the premises.
That eminent and learned Judge, Lord Mansfield, saw no distinction, in Saunderson vs Rowles(2), between an innkeeper and a victualler.
He observed: '.
The analogy between the two cases of an inn keeper and a victualler is so strong that it cannot be got over.
And we are all clear that this man (victualler) is not within these laws; upon the authority of a determined case of an inn keeper, and also upon the reason of the thing.
He buys only to spend in his house, and when he utters it again it is attended with many circumstances additional to the mere selling price.
" Like the hotelier, a restaurateur provides many services in addition to the supply of food.
He provides furniture and furnishings, linen, crockery and cutlery, and in the eating places of today he may add music and a specially provided area for floor dancing and in some cases a floor show.
The view taken by the English law found acceptance on American soil, and after some desultory dissent initially in certain states it very soon became firmly established as the general view of the law.
The first edition of American Jurisprudence sets(3) forth the statement of the law in that regard, but we may go to the case itself, Electa B. Merrill vs James W. Hodson(4), from which the (1) Innkeepers & Hotels, para 169.
(2) (3) Vol.
46 p. 207 para 13.
(4) 561 statement has been derived.
Holding that the supply of food or drink A to customers did not partake of the character of a sale of goods, the Court commented: "The essence of it is not an agreement for the transfer of the general property of the food or drink placed at the com command of the customer for the satisfaction of his desires, or actually appropriated by him in the process of appeasing his appetite or thirst.
The customer does not become the owner of the food set before him, or of that portion which is carved for his use, or of that which finds a place upon his plate, or in side dishes set about it.
No designated portion becomes his.
He is privileged to eat, and that is all.
The uneaten food is not his.
He cannot do what he pleases with it.
That which is set before him or placed at his command is provided tc enable him to satisfy his immediate wants, and for no other purpose.
He may satisfy those wants; but there he must stop.
He may not turn over unconsumed portions to others at his pleasure, or carry away such portions.
The true essence of the transaction is service in the satisfaction of a human need or desire, ministry to a bodily want.
A necessary incident of this service or ministry is the consumption of the food required.
This consumption involves destruction, and nothing remains of what is consumed to which the right of property can be said to attach.
Before consumption title does not pass; after consumption there remains nothing to become the subject of title.
What the customer pays for is a right to satisfy his appetite by the process of destruction.
What he thus pays for includes more than the price of the food as such.
It includes all that enters into the conception of service, and with it no small factor of direct personal service.
It does not contemplate the transfer of the general property in the food supplied as a factor in the service rendered.
" Subsequent cases drew on these observations, notably Mary Nisky vs Childs Company.
(1) The position was radically altered in the United States by the enactment of the Uniform Commercial Code, which provides in effect that the serving for value of food or drink to be consumed either on the premises or elsewhere constitutes a sale.
Nonetheless it is affirmed in the second edition of American Jurisprudence(2) that where the Code does not operate, "in general the pre Code distinction between a contract for sale and one for the giving of services should continue.
" (l) (2) Vol.
67 p. 142 para 33.
562 It has already been noticed that in regard to hotels this Court has in M/s. Associated Hotels of India Limited (supra) adopted the concept of the English law that there is no sale when food and drink are supplied to guests residing in the hotel.
The Court pointed out that the supply of meals was essentially in the nature of a service provided to them and could not be identified as a transaction of sale.
The Court declined to accept the proposition that the Revenue was entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs.
If that be true in respect of hotels, a similar approach seems to be called for on principle in the case of restaurants.
No reason has been shown to us for preferring any other.
The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need.
What has been said in Electa B. Merrill (supra) appears to be as much applicable to restaurants in India as it does elsewhere.
It has not been proved that any different view should be taken, either at common law, in usage or under statute.
It was urged for the respondent that in Associated Hotels of India Ltd. (supra) this Court drew a distinction between the case of meals supplied to a resident in a hotel and those served to a customer in a restaurant.
We are unable to find any proposition of law laid down by the court there which could lead to that inference.
We may point 13 out that in the view which appeals to us we find ourselves unable to agree with the observations to the contrary made by the Punjab High Court in M/s. Associated Hotels of India Ltd., Simla vs Excise and Taxation officer, Simla(1) and by the Delhi High Court in Municipal Corporation of Delhi vs Laxmi Narain Tandon and another.
(2), In the result, we hold that the service of meals to visitors in the restaurant of the appellant is not taxable under the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi, and this is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered.
In the circumstances of the case, we make no order as to costs.
N.V.K. Appeals allowed (1) A. I. R. 1966 Punjab 449.
(2) A, I. R. 1970 Delhi 244.
|
The appellant runs a hotel in which meals are served to non residents also in the restaurant located in the hotel.
The sales tax authorities treated a portion of the receipts as representing the price of foodstuffs served and levied tax.
The High Court affirmed the view of the sales tax authorities.
On the question whether the transaction constituted sale of foodstuffs.
Allowing the appeals ^ HELD. 1.
Service of meals to non residents in the restaurant of 'the appellant is not taxable under the Bengal Finance (Sales Ta%) Act 1941, as extended to the Union Territory of Delhi.
This is so whether a charge is imposed for the meal as a whole or according to the dishes separately ordered.
[562 F; 2.
In State of Punjab vs M/s. Associated Hotels of India ; this Court held that there was no sale when food and drink were supplied to guests residing in the hotel.
The Court pointed out that the supply of meals was essentially in the nature of a service provided to the guests and could not be identified as a transaction of sale.
This Court declined to accept the position that the Revenue was entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs.
If that be true in respect of hotels, a, similar approach seems to be called for on principle in the case of restaurants.
Like the hotelier, a restaurateur provides many services in addition to the supply of food.
He provides furniture and furnishings, linen, crockery and cutlery, and he may add music, an area for floor dancing and in some cases a floor show.
The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meals must be regarded as ministering to a bodily want or to the satisfaction of a human need.
No reason has been shown for preferring any other view.
[562 B, 560 F G, 562 C] State of Punjab vs M/s. Associated Hotels of India Ltd. ; applied.
M/s. Associated Hotels of India Ltd., Simla vs Excise and Taxation Officer Simla not approved.
Municipal Corporation of Delhi vs Laxmi Narain Tandon and Another not approved.
Crisp vs Pratt [1639] Cro.
Car 549, Parker vs Flint [1699] 12 Mod.
254 Newton v .
Trigg 3 Mod.
327, Saunderson vs Rowles Electa B. 558 Merrill vs James W. Hodson , and Mary Nisky vs Child Company SO A.L.R. 227 referred.
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Mr. A.H.M. Vakil, Advocate for the Applicants.
Mr. A.R. Kale, APP, for the Respondent – State.
Mr. W.A. Shaikh, Advocate for the Respondent No. 2.
1. With consent, heard finally at the stage of
2. By this Application under Section 482 of the
Code of Criminal Procedure, the Applicants have sought
to quash the criminal proceedings bearing R.C.C. No.
50/2021 emanating from the first information report
bearing C.R. No. 280/2017, dated 07.11.2017 registered
at Phulambri Police Station for the offences punishable
under Sections 498-A, 323, 504, 506 read with 34 of the
3. The aforesaid crime was registered pursuant to
the first information report lodged by the Respondent
Malani Page 1 of 7
No. 2 against her husband and his parents being the
Applicant Nos. 1 to 3 respectively. The marriage of the
Applicant no.1 and the Respondent no. 2 was solemnized
on 31.05.2014. There was rift in the matrimonial ties
between the Respondent No. 2 and the Applicant No.1,
which led to filing of the first information report. In
the FIR, the Respondent No. 2 has alleged that the
Applicants demanded dowry of Rs. 5,00,000/- and that
they subjected her to physical and mental cruelty for
not meeting the unlawful demand. She claims that she
left her matrimonial home due to the ill-treatment
meted out to her. Based on these allegations, the
aforesaid crime came to be registered.
4. The crime was investigated and the charge-
sheet came to be filed. The charge was framed and the
applicants herein pleaded not guilty and claimed to be
tried. Upon considering the evidence adduced by the
prosecution, by judgement dated 01.03.2021, learned
Magistrate held the Applicants guilty of offences
punishable under Sections 498-A, 323 read with Section
34 of the Indian Penal Code and sentenced them to
undergo simple imprisonment of 6 month and fine of Rs.
Malani Page 2 of 7
2,000/- each, in default to sufffer one month simple
imprisonment for offences punishable under Section 498-
A read with 34 of IPC and to suffer simple imprisonment
of 3 month each and fine of Rs. 500/- each, in default
to suffer fifteen days simple imprisonment for offence
under Section 323 read with 34 IPC. Being aggrieved by
the said conviction and sentence, the Applicants
preferred Criminal Appeal No. 20/2021 before learned
District and Sessions Judge, Aurangabad, which is
pending hearing.
5. Learned Counsel for the Applicants and learned
Counsel for Respondent No. 2 state that during the
pendency of the Appeal, the parties have settled the
dispute amicably. It is stated that by way of Khula the
Applicant No. 1 and Respondent No. 2 have separated. As
per consent terms, the Respondent No. 2 has been paid
Rs. 3,25,000/- along with Meher amount.
6. The parties have invoked the jurisdiction of
this Court under Section 482 Cr.P.C post-conviction and
during the pendency of the appeal. It may be mention
that in the case of Ramawatar Vs. State of Madhya
Pradesh reported in 2021 SCC OnLine SC 966, one of the
Malani Page 3 of 7
questions before the Hon’ble Supreme Court was wehther
the jurisdiction of Supreme Court under Article 142 of
the Constitution of India can be invoked for quashing
the criminal proceedings arising out of a ‘non-
compoundable offence’. While answering the said
question, the Hon’ble the Supreme Court has observed
10. So far as the first question is
concerned, it would be ad rem to outrightly
refer to the recent decision of this Court
in the case of Ramgopal & Anr v. The State
of Madhya Pradesh5, wherein, a two Judge
Bench of this Court consisting of two of us
(N.V. Ramana, CJI & Surya Kant, J) was
confronted with an identical question.
Answering in the affirmative, it has been
clarified that the jurisdiction of a Court
under Section 320 Cr.P.C cannot be
construed as a proscription against the
invocation of inherent powers vested in
this Court under Article 142 of the
Constitution nor on the powers of the High
Courts under Section 482 Cr.P.C. It was
further held that the touchstone for
exercising the extra-ordinary powers under
Article 142 or Section 482 Cr.P.C., would
be to do complete justice. Therefore, this
Court or the High Court, as the case may
be, after having given due regard to the
nature of the offence and the fact that the
victim/complainant has willingly entered
into a settlement/compromise, can quash
proceedings in exercise of their respective
constitutional/inherent powers.
11. The Court in Ramgopal (Supra) further
postulated that criminal proceedings
Malani Page 4 of 7
involving non-heinous offences or offences
which are predominantly of a private
nature, could be set aside at any stage of
the proceedings, including at the appellate
level. The Court, however, being conscious
of the fact that unscrupulous offenders may
attempt to escape their criminal
liabilities by securing a compromise
through brute force, threats, bribes, or
other such unethical and illegal means,
cautioned that in cases where a settlement
is struck post-conviction, the Courts
should, inter-alia, carefully examine the
fashion in which the compromise has been
arrived at, as well as, the conduct of the
accused before and after the incident in
question. While concluding, the Court also
formulated certain guidelines and held:
“19… Nonetheless, we reiterate that
such powers of wide amplitude ought to
be exercised carefully in the context
of quashing criminal proceedings,
bearing in mind: (i) Nature and effect
of the offence on the conscious of the
society; (ii) Seriousness of the
injury, if any; (iii) Voluntary nature
of compromise between the accused and
the victim; & (iv) Conduct of the
accused persons, prior to and after the
occurrence of the purported offence
and/or other relevant considerations.”
13. We, however, put a further caveat
that the powers under Article 142 or under
Section 482 Cr.P.C., are exercisable in
post-conviction matters only where an
appeal is pending before one or the other
Judicial forum. This is on the premise that
an order of conviction does not attain
finality till the accused has exhausted
his/her legal remedies and the finality is
sub-judice before an appellate court. The
pendency of legal proceedings, be that may
before the final Court, is sine-qua-non to
Malani Page 5 of 7
involve the superior court’s plenary powers
to do complete justice. Conversely, where a
settlement has ensued post the attainment
of all legal remedies, the annulment of
proceedings on the basis of a compromise
would be impermissible. Such an embargo is
necessitated to prevent the accused from
gaining an indefinite leverage, for such a
settlement/compromise will always be loaded
with lurking suspicion about its bona fide.
We have already clarified that the purpose
of these extra-ordinary powers is not to
incentivise any hollow-hearted agreements
between the accused and the victim but to
do complete justice by effecting genuine
settlement(s).
7. From a plain reading of this judgement, it is
clear that powers under Section 482 of Cr.P.C can be
exercised in post conviction matters when an appeal is
pending before one or the other judicial forum. In the
instant case, as noted above, it is stated that the
appeal filed by the Applicants is pending before the
Sessions Court, Aurangabad. Hence, there is no embargo
in exercising power under Section 482 of Cr.P.C to
quash present proceedings at post conviction stage,
particularly considering the fact that the proceedings
are emanating from the matrimonial dispute.
8. The Respondent No. 2 is present before the
Court. She confirms that she and the Applicant No. 1
have separated by way of Khula. She has further
Malani Page 6 of 7
admitted having received Rs. 3,25,000/- along with
Meher from the Applicant No. 1. She has given no
objection to quash the proceedings. It is stated that
the Applicants have no other criminal antecedents. We
are satisfied that the settlement is voluntary and
9. Considering the nature of accusations and
particularly that the parties have now decided to put
an end to their strained relationship and move on with
life, we are of the view that this is a fit case to
exercise inherent power of this Court under Section 482
of Cr.P.C. to secure the ends of justice. Under the
circumstances, the Application is allowed in terms of
prayer clause ‘B’. Consequently, the criminal
proceedings bearing R.C.C. No. 50/2021 & the first
information report bearing C.R. No. 280/2017, dated
07.11.2017 registered with Phulambri Police Station for
the offences punishable under Sections 498-A, 323, 504,
506 read with 34 of the Indian Penal Code, are hereby
quashed and set aside qua the present Applicants.
Malani Page 7 of 7
|
There is no embargo on quashing a case emanating from a matrimonial dispute even after conviction when an appeal is pending, the Bombay High Court said while quashing a domestic violence case filed by the wife against her husband and in-laws. The accused in the case had been convicted by the trial court in March 2021.
A division bench of Justices Anuja Prabhudessai and RM Joshi observed that the high court's powers under Section 482 of CrPC can be exercised in post-conviction matters when an appeal is pending before a judicial forum.
The court noted that the parties had settled the matter and the wife had voluntarily accepted the settlement. “Considering the nature of accusations and particularly that the parties have now decided to put an end to their strained relationship and move on with life, we are of the view that this is a fit case to exercise inherent power of this Court under Section 482 of Cr.P.C. to secure the ends of justice,” it observed.
The husband and his family approached the court last year for quashing the 2017 case registered under Sections 498A, 323, 504, 506 of the IPC. The couple had married in 2014. The woman alleged ill-treatment and dowry demand of Rs. 5 lakh. Following a trial, the court convicted the accused and sentenced them to six months in prison in March 2021.
Before the high court, it was argued that the parties have amicably settled the dispute and the couple have separated by way of a Khula. According to the consent terms, the husband paid the wife Rs. 3.25 lakhs along with the meher amount.
The court was told that an appeal against the conviction is pending. Reliance was placed on the Supreme Court's decision in Ramawatar Vs. State of Madhya Pradesh reported in 2021 SCC OnLine SC 966.
In the ruling, the Supreme Court noted that in Ramgopal & Anr v. The State of Madhya Pradesh, it has been held criminal proceedings involving non-heinous offences or offences which are predominantly of a private nature, could be set aside at any stage of the proceedings, including at the appellate level.
In Ramawatar, the apex court put a further caveat that the powers under Article 142 or under Section 482 Cr.P.C., be exercised in post-conviction matters only where an appeal is pending before one or the other Judicial forum.
"From a plain reading of this judgement, it is clear that powers under Section 482 of Cr.P.C can be exercised in post conviction matters when an appeal is pending before one or the other judicial forum. In the instant case, as noted above, it is stated that the appeal filed by the Applicants is pending before the Sessions Court, Aurangabad. Hence, there is no embargo in exercising power under Section 482 of Cr.P.C to quash present proceedings at post conviction stage, particularly considering the fact that the proceedings are emanating from the matrimonial dispute," the division bench said.
The court said the woman has given no objection for quashing of the proceedings and it is stated that applicants have no other criminal antecedents. "We are satisfied that the settlement is voluntary and genuine," it said, while quashing the case.
Case Title: Shaikh Shaukat S/O Majit @ Majid Patel and Ors. v. State of Maharashtra and Anr.
|
ivil Appeal No. 1643 of 1984.
From the Judgment and Order dated 6.7.
1982 of the Allahabad High Court in Writ Petition No. 1499 of 1974 G.L. Sanghi, Mrs. section Dixit and Pradeep Misra for the Appel lants.
Kuldip Singh, Additional Solicitor General, Ashok K. Srivastava, C.V. Subba Rao, Mrs. Sushma Suri and A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the writ petition of the appellants whereby they challenged inter alia the validity of rule 328(2) of the Railway Estab lishment Code as amended by the Railway 82 Board by Advance Correction Slip No. 70.
The appellants were appointed Trade Apprentices in Locomotive Component Works (for short 'LCW ') in or about January, 1959.
There was a merger of LCW with Diesel Locomo tive Works, Varanasi, (for short 'DLW ') on August 1, 196 1, as a result of which, all the members of the staff of LCW were taken over by DLW.
On July 19, 1962, the appellants were appointed Skilled Artisans after successfully complet ing a training for three years and a half.
The regular channel of promotion to higher posts from the post of Skilled Artisan is in the following order: 1.
Skilled Artisan.
Highly Skilled Grade II.
Highly Skilled Grade I. 4.
Chargeman C. 5.
Chargeman B. 6.
Chargeman A. 7.
Assistant Foreman.
Foreman.
It is apparent from the above channel of promotion that the next higher post to which the appellants could be pro moted was the post of Highly Skilled Grade II.
In September, 1963, the appellants were, however, promoted to the post of Instructor C which is equivalent to the post of Chargeman C.
There is a controversy between the parties as to whether the post of Instructor C was an ex cadre post or not.
According to the appellants, it was an interchangeable post with Chargeman C.
We shall have occasion to consider the question later in this judgment.
It may be stated, however, that there is no dispute that the post of Instructor C is a selection post and the appellants were selected and promoted to existing vacancies in that post.
The next post to which the appellants were promoted on September 22, 1964 is the post of Chargeman B upon their selection by a constituted Selection Board on a regular basis.
Some of the respondents, who are direct recruits, also competed with the appellants for the post of Chargeman 83 B, but they could not qualify themselves in the written test.
To complete the narrative, it may be stated that the appellants have now been promoted to the post of Chargeman A.
On August 11, 1966, the General Manager of DLW prepared certain seniority lists including a seniority list of Chargeman B on the basis of the rules or guidelines framed by him.
The said seniority list was challenged by certain direct recruits by filing writ petitions before a learned Single Judge of the Allahabad High Court.
The learned Single Judge quashed the seniority list and also the guidelines or rules framed by the General Manager, DLW, on the basis of which the seniority list was prepared.
The principal ground on which the seniority list and the rules or guidelines framed by the General Meeting, DLW, were quashed by the learned Single Judge was that the General Manager, DLW, was not the General Manager of the Railway and, as such, he had no authority to frame rules or guidelines for the purpose of preparation of the seniority list.
Further, the learned Judge held that the said rules or guidelines dated August 11, 1966 were violative of Articles 14 and 16 of the Consti tution of India.
Several appeals were preferred against the judgment of the learned Single Judge including one preferred by the Railway Administration before the Division Bench of the High Court.
While upholding the finding of the learned Single Judge that the General Manager, DLW, was not competent to frame rules or guidelines, the Division Bench could not agree with the finding of the learned Single Judge that the said rules or guidelines were violative of Articles 14 and 16 of the Constitution.
It was observed that there would have been no objection if the General Manager, DLW, had utilised the relevant statutory rules in drawing up the seniority list but, admittedly, the rules in question were ignored.
Further, the Division Bench pointed out that all the concerned employees in the writ petition agreed before the learned Single Judge that the seniority list might be prepared on the basis of the relevant rules contained in the Railway Establishment Code and the Railway Establishment Manual.
The Division Bench also found that the DLW project was not a temporary project, but appeared to be a permanent project.
Upon the above findings, the Division Bench upheld the quashing of the seniority list and directed the General Manager, DLW, to prepare a fresh seniority list in the tight of the statutory provisions contained in the Railway Estab lishment Code and the Railway Establishment Manual.
After the aforesaid judgment of the Division Bench of the High 84 Court, what the Railway Board did before preparation of any seniority list by the General Manager, DLW, was to issue Advance Correction Slip No. 70 inserting rules 324 to 328 in the Railway Establishment Manual after rule 323 in Chapter III.
Of the rules, so inserted, that which vitally affected the appellants is rule 328(2) which provides as follows: "328(2).
Selection and promotions made in the Diesel Locomotive works from 1.8.1961 up to the date of notification of these rules shall not be valid.
" The Rules were amended by the Board by virtue of its power under rule 157 which provides that the Railway Board have full powers to make rules of general application to non gazetted railway servants under their control.
The date of notification of the amended Rules is March 11, 1973.
In view of rule 328(2), the promotions which were granted to the appellants from August 1, 1961 up to March 11, 1973 shall not be valid.
Needless to say, rule 328(2) has vitally affected the appellants by making invalid all the promotions given to them between the said period.
As a result, the appellants were reverted back to the position of Skilled Artisans.
The General Manager, DLW, by his circular dated December 7/8, 1973 directed the appellants to appear at the trade test.
it was further directed that if the staff concerned would fail to appear in the trade test, they would be passed over for fixation of seniority in the Highly Skilled Grade Il, although the appellants had in 1962 crossed the position of Highly Skilled Grade Il.
The appellants made a represen tation against the said circular to the General Manager, DLW, on December 12, 1973.
That representation was turned down by the General Manager on the ground that in view of the said rule 328(2), the claim for either higher positions or exemption from passing any trade test was not tenable.
It was also stated that if the appellants would fail to appear in the trade test, they would be passed over for fixation of seniority in the Highly Skilled Grade Il.
Being aggrieved by the introduction of the said rule 328(2) directly affecting the appellants and also the said circular of the General Manager, DLW, requiting the appel lants to appear at the trade test for the purpose of prepa ration of the seniority list in Highly Skilled Grade II, the appellants filed a writ petition before the High Court.
The High Court overruled the contention of the appellants that the new rules, which have been inserted in the Railway Establish 85 ment Manual including rule 328(2) by the Advance Correction Slip No. 70 by the Railway Board by virtue of its power under rule 157 of the Railway Establishment Code, were invalid.
The High Court held that the said rules were quite valid and were not arbitrary or discriminatory as contended on behalf of the appellants.
In regard to the promotions of the appellants.
The High Court took the view that they were only interim and provisional and not regular promotions under the normal rules, and that such provisional selection and promotions conferred no rights on the appellants to hold the posts to which they were promoted.
Upon the above find ings, the High Court dismissed the writ petition.
Hence this appeal by special leave.
Mr. Sanghi, learned Counsel appearing on behalf of the appellants, has challenged before us the validity of rule 328(2) as inserted in the Railway Establishment Manual by the Advance Correction Slip No. 70.
It has been already noticed that in view of the said rules, the promotions of the appellants up to the position of Chargeman A stand set aside and the appellants are reverted back to their original position of Skilled Artisan.
In other words, the length of service of the appellants for a period of about nine years has been completely wiped out by rule 328(2).
The High Court took the view that the promotions which were granted to the appellants were by way of interim meas ure and did not confer on them any title to the posts to which they were promoted.
In support of that view, the High Court has referred to the order of the General Manager, DLW, dated May 14/16, 1962 which reads as follows: "As an interim measure, all supervisory tech nical posts in the Mechanical Department will be treated as ex cadre posts and promotions will be regulated by selection.
" Before considering the question of the validity of rule 328(2), we may first of all examine whether the promotions of the appellants up to the post of Chargeman B were by way of interim measures, as found by the High Court, and/or whether such promotions are permissible by the Rules or not.
In this connection, we may refer to the circular of the Railway Board dated May 27, 1963 regarding the procedure to be followed for filling up selection posts (non gazetted).
The Board directed that if the requisite number of staff was not available in the grade next to the grade for which the selection was being held, the administration could go to the .lower grade in order to make up four 86 times the number required to be called up for selection but, in no case, can the eligibility be extended to staff in the grade lower than three times.
This circular of the Board is quite consistent with rule 2 16 of the Railway Establishment Manual.
Rule 216 also provides for a similar procedure.
The direction of the Board read with the provision of rule 2 16 clearly empowers the administration to select persons from two grades lower than the post to which promotion was to be made.
The next circular dated November 2, 1963 of the General Manager, DLW, regarding the formation of panel for promotion of mechanical supervisors and instructors is significant.
The said circular clearly provided that all staff in Mechan ical Department including instructoral staff under the Principal Technical Training School in two grades below the grade for which selection was going to be held, were eligi ble.
The Skilled Artisans having not less than one year 's service were permitted to apply for the post of Instructor in the grade of Rs.205 280 (AS) which is equivalent to that of Chargeman C.
In the channel of promotion, which has already been noticed above, the feeder post for promotion to the post of Chargeman C is Highly Skilled Grade I but, in view of the said circular dated May 27, 1963 of the Board read with rule 2 16 of the Railway Establishment Manual, persons holding posts two grades below the post to which the promotion was to be made, that is, the post of Instructor which is equivalent to the post of Chargeman C, were allowed to apply for the same.
The reason for the said circular or the said rule is that at all times suitable candidates might not be available and just to avoid administrative inconven ience, the promotions are given from posts below the feeder post.
The said circular of the General Manager, DLW, dated November 2, 1963 does not show that the promotion to the posts of selection and/or promotion to the posts of Instruc tors would be by way of interim measure or ad hoc arrange ment.
In the absence of any such indication, it will not be unreasonable to presume that such promotions were anything other than by way of interim measure or ad hoc arrangement, as contended on behalf of the respondents.
In view of the said circular dated November 2, 1963, the appellants applied for the posts of Instructors and they were selected after the requisite tests.
In the office order No. 3421 dated December 30, 1963, appointing the appellants to the post of Instructor (Machinist Gr.
C), it is clearly stated that they are appointed to the post of Instructor (Machinist Gr.
C) against existing vacancies.
Again, a similar circular dated July 18, 1964 was issued from the office of the General Manager, DLW, with regard to the filling up of 87 the posts of Chargeman B in the scale of Rs.250 380 (AS).
It was clearly stated in the circular that the staff in the Mechanical Department in two grades below the grades for which the selections would be held, were eligible to apply.
The appellants applied for the post and had to appear at the written and viva voce examinations.
Some of the private respondents also appeared in the said examinations along with the appellants but they failed, while the appellants succeeded and were empanelled for appointment to the post of Chargeman (Machinist) B.
In view of such an empanelment, the appellants were appointed Chargemen B in the grade of Rs. 250 380 against existing vacancies sometime in February, 1965.
We may now refer to a very significant document which is office order No. 25 dated January 22, 1966.
In that order, it is stated that the staff mentioned therein will have their paper lien maintained in the Shops/Division as men tioned against each and will seek their promotions in their respective Division/Shops.
In the list annexed to the said order, the present designation of the first appellant has been mentioned as "Instructor B ' ' and his revised position or designation as "Chargeman B".
In the last column under the heading "placed where lien is kept", it is stated that his lien is kept under the production Engineer (PE).
The present and revised designation of the appellant Nos. 2 and 3 have been shown as Chargeman B. The place of lien of the appellant No. 2 has been stated to be under the Production Engineer, while that of the third appellant has been stated to be under the Works Manager (B).
It is urged on behalf of the respondents that the said officer order No. 25 does not show that the appellants have any lien on the posts of Chargeman B. It only mentions that they have a lien on certain places.
We are unable to accept this contention.
A person may have lien on a post and not a lien on a place.
And all that the said order means that they have lien on the post of Chargman B, but in certain places under either the Production Engineer or the Works Manager.
There can be no doubt that a person appointed to a post on an ad hoc basis cannot have any lien on the post.
It is only when a person appointed on a permanent basis, he can claim lien on the post to which he is so appointed.
It is, therefore, not correct to say that the appellants were appointed or promot ed to the post of Instructor C or Chargeman C on an ad hoc basis or by way of an interim measure, as held by the High Court in the impugned judgment.
If they were appointed on ad hoc or purely temporary basis, they could not have been promoted to the post of Chargeman B and the said order No. 25 dated January 22, 1966 would have been quite inconsistent with such ad hoc or temporary appointments.
88 At this stage, it will be pertinent to refer to the counter affidavit of the Railway Administration in the previous writ proceedings.
In paragraph 15 of the counter affidavit, it has been stated inter alia that the post of Junior Instructor carries the same scale of pay as Charge man 'C ' and that the two posts being of the same rank and scale, staff of the one post could be transferred to the other post and vice versa.
This statement in the counter affidavit of the Railway Administration clearly indicates that the post of Instructor C and Chargeman C are inter changeable posts.
Further, it is stated as follows: "Respondent Nos. 8 to 11 (which include the three appellants herein) in the first instance offered for the post of Instructors in grade Rs.205 280 (equivalent to Chargeman 'C ' grade) and they were selected by duly constituted Selection Board.
Subsequently they offered for the post of Chargeman B grade Rs.250 280 (AS) and were promoted as such after having been selected by a Selection Committee.
Respondents Nos.
8 to 11 were appointed to grade Rs.205 280 and subsequently to grade Rs.250 280 after having been selected by a duly constituted Selection Board ' . . . ." In the circumstances, we are of the view that the appel lants were not appointed on an ad hoc or a purely temporary basis by way of interim measure as held by the High Court, but they were appointed on a permanent basis in the post of Instructor or Chargeman Grade C, which are interchangeable posts and, thereafter, promoted to the post of Chargeman Grade B.
The appointment or promotion of the appellants to the post of Chargeman C from the post of Skilled Artisan or to Chargeman B were made in accordance with the circular of the Railway Board and/or in accordance with rules 216 of the Railway Establishment Manual.
It cannot, therefore, be said that the appellants were promoted to the post of Chargeman C illegally or in violation of any rule.
There is a controver sy between the parties as to whether the post of Instructor C is an ex cadre post or not.
It is submitted on behalf of the respondents that the post of Instructor C being an ex cadre post, the appellants could not be appoint ed or promoted to the post of Chargeman C.
This contention is unsound and is fit to be rejected.
It is the clear case of the Railway Administration, as pointed out above, that the posts of Instructor C and Chargeman C are interchange able posts.
Even assuming that the post of Instructor C is an ex cadre post, nothing turns out on that inasmuch as according to 89 the Railway Administration itself, the two posts being of the same rank and scale, the staff of one post could be transferred to the other post and vice versa.
The appellants might have been appointed to the post of Instructor C, but they were transferred to the post of Chargeman C and, there fore, there was no difficulty in promoting them to the post of Chargeman B.
Now, we may consider the question as to the propriety otherwise of rule 328(2) as inserted in the Railway Estab lishment Manual by the Railway Board in exercise of its power under rule 157 of the Railway Establishment Code.
It has already been noticed that in the previous writ proceed ings the Division Bench of the High Court quashed the sen iority list and directed the General Manager, DLW, to pre pare a fresh seniority list in the light of statutory provi sions contained in the Railway Establishment Code and the Railway Establishment Manual.
The Principal ground for quashing the seniority list was that the General Manager, DLW, had no authority to frame guidelines or rules for the purpose of preparing the seniority list.
It has also been noticed that while the learned Single Judge took the view that the guidelines or rules framed by the General Manager were violative of Articles 14 and 16 of the Constitution, the Division Bench took a contrary view and after consider ing the rules or guidelines in detail came to the finding that none of the guidelines or rules framed by the General Manager was contrary to the provisions of Articles 14 and 16 of the Constitution.
Indeed, the Division Bench was of the view that no objection could be taken to the said rules or guidelines, but it had to quash the seniority list framed on the basis of such guidelines or rules inasmuch as the Gener al Manager had no authority to frame such rules or guide lines.
Accordingly, the Division Bench directed the General Manager to prepare the seniority list in accordance with the existing statutory rules.
It is curious that instead of preparing the seniority list in accordance with the existing statutory rules, as directed by the High Court, the Railway Board amended the rules and inserted by the Advance Correction Slip No. 70, among others, rule 328(2) which has been extracted above.
That rule wipes out not only the promotion granted to the appellants up to the post of Chargeman Grade B, but also the length of service of the appellants for about nine years.
The appellants have been directed by the order dated decem ber 7/8, 1973 of the General Manager to appear in a trade test in respect of the post of Highly Skilled Artisan Grade Il, otherwise their seniority in the said post will be passed over.
In other words, the appellants are in a way 90 reverted to the post of Skilled Artisan which they were holding before their promotion to the post of Instructor/Chargeman C.
No reason appears to have been given for the introduction of rule 328(2) by the Advance Correc tion Slip No. 70.
It was not the case of the Railway Admin istration in the previous writ proceedings that the promo tions that were given to the appellants were purely on an ad hoc basis.
The High Court in the previous writ proceedings did not also find that the appellants ' promotion to the post of Instructor/Chargeman C or to the post of Chargeman B were on ad hoc basic.
We have, after considering the relevant facts, come to the finding that the appellants were regular ly promoted to the post of Chargeman C and, thereafter, to Chargeman B.
In the circumstances, we do not find any justi fication for the Railway Board to incorporate a new rule, that is, rule 328(2) to the serious prejudice of the appel lants.
The Railway Administration was to comply with the order of the High Court and in compliance with the order, it should have prepared the seniority lists in accordance with the existing rules.
It is not the case of the Railway Admin istration that under the existing rules the seniority list could not be prepared.
There is, therefore, no reasonable justification for the Railway Board to insert in the Railway Establishment Manual rule 328(2).
There can be no doubt that by virtue of rule 157 of the Railway Establishment Code, the Railway Board has the power to frame rules, but such rules must be framed with certain objects in view and must not be arbitrary.
The Court is always entitled to examine whether a particular rule which takes away the vested fight of a railway employee or seriously affects him with retrospective effect, has been made to meet the exigencies of circum stances or has been made arbitrarily without any real objec tive behind it.
In the instant case, we do not find any objective or purpose behind the framing of rule 328(2) to the serious prejudice of the appellants.
In other words, rule 328(2) is arbitrary and, therefore, cannot be allowed to be operative to the detriment of the appellants.
The only justification for rule 328(2) as advanced by the learned Counsel for the respondents is that as the appellants we.re promoted on ad hoc basis to the posts of Chargeman C and Chargeman B, they had no fight to hold these posts and, accordingly, they were to be reverted to the post of Skilled Artisan.
This contention of the respondents does not find support from the counter affidavit filed by the Railway Administration in the previous writ petition nor does it appear from any order or circular of the Railway Board or the Railway Administration in support of the same.
Moreover, we have on a conspectus of the facts and circumstances and the circulars of the Railway Administration come to the finding that the appellants were not promoted on an ad hoc basis.
For the reasons aforesaid, the appeal is allowed and the judgment of the High Court is set aside.
It is directed that the respondents Nos. 1 and 2 shall not give effect to rule 328(2) as inserted in the Railway Establishment Manual by the Advance Correction Slip No. 70 in the cases of the appellants and the respondents Nos.
3 to 6.
The impugned orders dated December 7/8, 1973 and January 7, 1974 are quashed.
The respondents Nos. 1 and 2 are further directed to fix the seniority of the appellants and the said respond ents Nos.
3 to 6 on the basis of their promotions to the posts of Instructor/Chargeman C and Chargeman B.
There will be no order as to costs.
N.V.K. Appeal allowed.
|
The appellants in the appeal were appointed in or about January, 1959 as Trade Apprentices in Locomotive Component Works.
In August, 1961 there was a merger of Locomotive Component Works with Diesel Locomotive Works, as a result of which all the members of the staff of LCW were taken over by DLW.
The appellants were appointed skilled artisans on July 19, 1962 after successfully completing the training period of 3 1/2 years.
The channel for promotion to higher posts was: (1) Skilled Artisan, (2) Highly Skilled Grade II, (3) Highly Skilled Grade I, (4) Chargeman C, (5) Chargeman B, (6) Chargeman A, (7) Assistant Foreman and (8) Foreman.
In September, 1963, the appellants were promoted to the post of Instructor C which was equivalent to the post of Charegman C.
The posts were inter changeable.
The appellants were further promoted on September 22, 1964 to the post of Chargeman B. Some of the respondents in the appeal who were direct Recruits also competed with the appellants for the post of Chargeman B, but could not qualify in the written test.
On August 11, 1966, the Genera1 Manager, DLW pre pared and issued a seniority list of Chargeman B.
This list was challenged by I certain direct recruits in a writ petition to the High Court.
A Single 79 Judge quashed the seniority list and also the guidelines/rules framed by the General Manager, DLW on the basis of which the seniority list was prepared, on the ground that the General Manager, DLW was not the General manager of the Railway, and as such he had no authority to frame the rules or the guidelines for the purpose of prepa ration of the seniority list.
It was further held that the guidelines/rules were violative of Articles 14 and 16 of the Constitution.
Several appeals were preferred, one of them being by the Railway Administration.
The Division Bench while upholding the finding of the Single Judge that the General Manager DLW was not competent to frame the rules/guidelines, disagreed with the finding that the rules/ guidelines were violative of Articles 14 and 16 of the Constitution.
Pursuant to the aforesaid judgment, the Railway Board issued an Advance Correction Slip No. 70 inserting Rules 324 to 328 in the Railway Establishment Manual after rule 323 in Chapter III.
Rule 328(2) provided that: 'selections and promotions made in the Diesel Locomotive Works from August 1, 1961 upto the date of the notification of the rules shall not be invalid '.
The amended rules came into effect from March 11, 1973.
The resultant situation was that Rule 328(2) vitally affected the appellants by making invalid all the promotions given to them during the period August 1, 1961 to March 11, 1973 and the appellants were reverted back as Skilled Arti sans.
The General Manager, DLW a Circular dated 7/8th Decem ber, 1973 directed appellants to appear at the Trade test and further informed that failure to do so would result in being passed over for fixation of seniority in the Highly Skilled Grade II.
The representation against this Circular was turned down.
Aggrieved by the introduction of Rule 328(2) and also the issuance of Circular by the General Manager DLW the appellants filed a writ petition in the High Court The High Court overruled the contention that the new rules inserted in the Railway Establishment Manual by the Advance Correc tion Slip No. 70, were invalid, and held that the rules were quite valied and were not arbitriary or discriminatory.
As regards promotion of the appellants,the High court took the view that they were only interim and professional and not regular and as such no right was confirmed on appellants to hold the posts to which they were promoted.
The high court accordingly dismissed the writ petition.
80 On behalf of the appellants in the appeal by special leave it was contended that Rule 328(2) as inserted in the Railway Establishment Manual by the Advance Correction Slip No. 70 was invalid, that the promotions of appellants up to the position of Chargeman A could not be set aside and appellants reverted back to their original position of Skilled Artisans, and that the length of service of the appellants for a period of about 9 years has been completely wiped out by the said Rule 328(2).
Allowing the appeal and setting aside the judgment of the High Court, HELD:1.
By virtue of Rule 157 of the Railway Establish ment Code, the Railway Board has the power to frame rules, but such rules must be framed with certain objects in view and must not be arbitrary.
[90E] 2.
The Court is always entitled to examine whether a particular rule which takes away the vested right of a railway employee or seriously affects him with retrospective effect, has been made to meet the exigencies of circum stances or has been made arbitrarily without any real objec tive behind it.
[90E F] 3.
The Railway Administration was to comply with the order of the High Court and in compliance with the order, it should have prepared the seniority lists in accordance with the existing rules.
[90C D] 4.
It is curious, that instead of preparing the seniori ty list in accordance with the existing statutory rules, as directed by the High Court, the Railway Board amended the rules and inserted by the Advance Correction Slip No. 70, among others, Rule 328(2).
That rule wipes out not only the promotions granted to the appellants up to the post of Chargeman Grade B, but also the length of service of the appellants for about nine years.
[89F G] 5.
This Court does not find any objective or purpose behind the framing of Rule 328(2) to the serious prejudice of the appellants.
The said Rule is arbitrary and therefore, cannot be allowed to be operative to the detriment of the appellants.
[90F] 6.
The appellants were regularly promoted to the post of Chargeman C and thereafter to Chargeman B.
In these circum stances, no justification is found for the Railway Board to incor 81 porate a new rule viz., Rule 328(2) to the serious prejudice of the appellants.
[90C] 7.
A person can have lien on a post and not a lien on a place.
There can be no doubt that a person appointed to a post on ad hoc basis cannot have any lien on the post.
It is only when a person is appointed on a permanent basis, he can claim lien on the post to which he is so appointed.
[87F G] 8.
It is not correct to say that the appellants were appointed or promoted to the post of Instructor C or Charge man C on an ad hoc basis or by way of an interim measure, as held by the High Court.
If they were appointed on ad hoc or purely temporary basis they could not have been promoted to the post of Chargeman B and Office Order No. 25 dated Janu ary 22, 1966 would have been quite inconsistent with such ad hoc or temporary appointments.
[87G H] 9.
Directed that Respondent Nos. 1 and 2 shall not give effect to Rule 328(2) as inserted in the Railway Establish ment Manual by the Advance Correction Slip No. 70 in the case of appellants and Respondent Nos.
3 to 6.
Orders dated December 7/8th, 1973 and January 7, 1974 are quashed.
Fur ther directed that Respondent Nos. 1 and 2 fix the seniority of appellants and respondents 3 to 6 on the basis of their promotions to posts of Instructor/Chargeman C and Chargeman B. [91B C]
|
ivil Appeal No. 1349(NT) of 1974.
From the Judgment and Order dated 20th June, 1973 of the Gujarat High Court in Estate Duty Ref.
No. 3 of 1970.
S.C. Manchanda, K.P. Bhatnagar and Miss A. Subhashini for the Appellant.
48 S.T. Desai and S.C. Patel for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by certificate granted by the High Court of Gujarat by its order dated 2nd May, 1974 from the judgment and order dated 28th June, 1973 in Estate Duty Reference No. 3 of 1970 under section 65(1) of the (hereinafter called the 'Act ').
One Nareshchandra Kantilal died on 13th September, 1962.
He was a partner in the firm of Messrs G. Bhagwatiprasad & Co. having 28% share in the partnership.
The partnership was by the document of partnership which is dated 6th June, 1957.
On the death of the deceased, the accountable person filed necessary return under the Act.
The Assistant Controller of Estate Duty while valuing the estate of the deceased, came to the conclusion that the share of the deceased in the goodwill of the firm in which he was a partner was liable to be included in the principal value of his property.
This inclusion was resisted by the accountable person on the ground that the question of adding the value of the share of the deceased in the goodwill of the firm did not arise in view of clause (10) of the partnership deed.
Clause (10) was as follows: "The firm shall not stand dissolved on death of any of the partners and the partner dying shall have no right whatever in the goodwill of the firm".
The accountable person contended on the basis of this clause that on the death of the deceased, his heirs had no right in the goodwill of the firm, and as such the value of the said goodwill did not pass under the provisions of the Act and was, therefore, not liable to any estate duty.
The Assistant Controller, however, negatived the said contention.
He valued the goodwill at Rs.2,16,900.
The share of the deceased in the goodwill was worked out from this value at Rs.60,732.
The Assistant Controller also worked out the value of the interest which the deceased had in the partnership assets and added to the above referred amount of Rs.60,732 as the value of his share in the goodwill.
The accountable person, being aggrieved, preferred an appeal before the Appellate Controller of Estate Duty, Bombay.
He by and 49 large confirmed the order of the Assistant Controller and made only a slight reduction in the value of the goodwill.
The accountable person thereafter went up in appeal before the Appellate Tribunal.
She raised before the Tribunal two principal contentions, namely, (1) that the deceased had no interest in the assets of the firm and hence his share in the goodwill did not pass at all, and (2) as, according to the partnership agreement, the partnership was to continue on the death of any of the partners and as it was further stipulated that the deceased would have no interest in the goodwill of the firm on his death, his share in the goodwill did not pass and as such was not liable to the charge of estate duty.
The Tribunal rejected both these contentions.
It was contended on behalf of the accountable person before the Tribunal that when a partnership was a going concern there could not be any separate valuation of the goodwill which went with the running business.
The Tribunal noted that there was no question of valuing the goodwill separately because what was to be valued was the totality of interest of a partner in partnership assets including the value of the goodwill.
The Tribunal eventually decided the matter relying upon the decision of the Privy Council in Perpetual Executors and Trustees Association of Australia Ltd. vs Commissioner of Taxes, = 25 I.T.R. (ED) 47.
The Tribunal held that in spite of clause (10) of the partnership agreement, the value of the goodwill to the extent of the share of the deceased passed on the death of Nareshchandra Kantilal and it was liable to be charged estate duty.
Three questions of law were referred to the High Court.
These were: "1.
Whether, on the facts and in the circumstances of the case, the interest of the deceased in the firm of Messrs. G. Bhagwatiprasad & Co. of Ahmedabad was property within the meaning of the provisions of the ? 2.
If the answer to the above question is in the affirmative, whether, on the facts and in the circumstances of the case, having regard to the terms of the partnership deed dated June 6, 1957, the value of the interest of the deceased in the said partnership would include the goodwill of the partnership firm? 3.
Whether, on the facts and in the circumstances of the case, the value of the goodwill, if any, would be exempt under the provisions of section 26(1) of the Act?" 50 The last question was not pressed before the High Court.
The High Court, therefore, did not give any answer.
The first question, the High Court, answered in favour of the revenue and in the affirmative and the second question was answered in the negative.
As the first question was in favour of the revenue and there was no appeal by the accountable person this appeal is concerned only with the second question namely 'whether the value of the interest of the deceased in the said partnership would include the goodwill of the partnership firm '.
The High Court answered the question in the negative and in favour of the accountable person as mentioned hereinbefore.
The High Court noted that the primary object of every taxing statute was to recover a tax or duty in cash on the happening of a particular taxable event.
This event under the Act, is the actual or deemed passing of property on the death of a person.
Every taxing statute, according to the High Court, contemplated the levy of a tax or duty on the valuation date which has to be arrived at on the principles stated in the statute itself.
If the valuation principles stipulated in the Act could not be worked out with any precision in respect of any property it would follow as a necessary corollary that that property was not one which was intended to be subject to tax or duty contemplated by the statute.
This basic principle, according to the High Court, should be applied while construing sections 7 and 40 of the Act.
Section 7 of the Act, according to the High Court would apply only if two conditions were satisfied, namely (1) that there was a cesser of interest in the property on the death of a person, and (2) an accrual or arising of benefit to another as a result of the said cesser.
In order to assess the tax liability the value of the benefit had to be worked out and section 40 of the Act provides the basis for the valuation.
Section 40 clearly postulates that the property in which interest had ceased must be capable of yielding income.
If the 'benefit ' arising under section 7 on the cesser of an 'interest ' could not be measured under section 40, the cesser of such interest, according to the High Court did not attract payment of estate duty under section 7 of the Act.
A partner in a firm has a marketable interest in all the capital assets of the firm including the goodwill even during the subsistence of the partnership.
Interest in goodwill was property within the meaning of section 2(15) of the Act, according to the High Court.
But the goodwill of a firm, in the opinion of the High Court, standing by itself could not earn any income.
In a case where it was specially stipulated 51 that on the death of any of the partners, the partnership shall not stand dissolved and that the heirs of the deceased partner shall have no right whatsoever to claim any share in the goodwill of the firm, the benefit arising to the other partners on the cesser of interest in the goodwill, on the death of the partner could not be measured in terms of section 40.
The High Court, therefore, was of the view that such a benefit was not liable to estate duty under section 7 of the Act.
The High Court was, therefore, of the view that the facts of this case were not covered by either section 5 or section 7 and answered the question No. 2 in the negative.
In order to appreciate this controversy, it is necessary to refer first to section 2(15) of the .
Section 2(15) deals with 'property '.
It provides as follows: " 'property ' includes any interest in property, movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property converted from one species into another by any method.
" There are two explanations with which we are not presently concerned.
Section 2(16) deals with 'property passing on the death ' and is as follows: " 'Property passing on the death ' includes property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and "on the death" includes "at a period ascertainable only by reference to the death" .
The imposition of estate duty is by sub section (1) of section 5.
It stipulates that in case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as provided in the Act, all property, settled or not settled including agricultural land. ., which passes on the death of such person, a duty called 'estate duty ' at the rates fixed in accordance with section 35.
Section 6 of the Act deals with property which is deemed to pass 52 and provides that property which the deceased was at the time of his death competent to dispose of shall be deemed to pass on his death.
Section 7(1) deals with interest ceasing on death and is as folllows: "(1) Subject to the provisions of this section, property in which the deceased or any other person had an interest ceasing on the death of the deceased shall be deemed to pass on the deceased 's death to the extent to which a benefit accrues or arises by the cesser of such interest, including, in particular, a coparcenary interest in the joint family property of a Hindu family governed by the Mitakshara, Marumakattayam or Allyasantana law.
The other sub sections of the section deal with special cases of different communities, the details of which need not be considered.
The other relevant provisions which need be considered deal with the value which is chargeable.
Sub section (1) of section 36 of the Act stipulates that the principal value of any property shall be estimated to be the price which, in the opinion of the Controller, it would fetch if sold in open market at the time of the deceased 's death.
Sub section (2) of the section stipulates that in estimating the principal value under this section the Controller shall fix the price of the property according to the market price at the time of the deceased 's death and shall not make any reduction in the estimate on account of the estimate being made on the assumption that the whole property is to be placed on the market at one and the same time, provided that where it is proved to the satisfaction of the Controller that the value of the property has depreciated by reason of the death of the deceased, the depreciation shall be taken into account in fixing the price.
Sections 37, 38 and 39 are provisions with which the present controversy is not directly concerned.
Section 40 deals with the valuation of benefits from interests ceasing on death.
This is relevant and is as follows: "The value of the benefit accruing or arising from the cesser of an interest ceasing on the death of the deceased shall (a) if the interest extended to the whole income of the property, be the principal value of that property; and 53 (b) if the interest extended to less than the whole income of the property, be the principal value of an addition to the property equal to the income to which the interest extended.
" The other provisions of the Act need not be considered for the present controversy.
Section 14 of The recognises that subject to contract between the partners, the property of the firm would include all the property and rights and interests in property originally brought into the stock of the firm or acquired by purchase or otherwise, by the firm or for the purpose or in the course of business of the firm and includes the goodwill of the business.
It further provides that unless contrary intention appears property and rights in the property acquired with money belonging to the firm are deemed to have been acquired for the firm.
Section 15 of the said Act provides that the property of the firm shall be held and used exclusively for the purpose of the firm.
In a partnership there is a community of interest in which all the partners take in the property of the firm.
But that does not mean that during the subsistence of the partnership a particular partner has any proprietary interest in the assets of the firm.
Every partner of the firm has right to get his share of profits till the firm subsists and he has also a right to see that all the assets of the partnership are applied to and used for the purpose of partnership business.
Section 29 of the said Act also shows that he can transfer his interest in the firm either absolutely or partially.
He has also the right to get the value of his share in the net asset of the firm after the accounts are settled on dissolution.
All these rights of a partner show that he has got a marketable interest in all the capital assets of the firm including the goodwill asset even during the subsistence of the partnership.
This interest is property within the meaning of section 2(15) of the Act as mentioned hereinbefore.
Our attention was drawn to the decision of the King 's Bench Division in the case of Attorney General vs Boden and Another, , in support of the contention on behalf of the revenue.
There the Court was concerned with section 1 of the Finance Act, 1894 of United Kingdom.
By the said provision, estate duty was, except as in the Act provided, payable upon the principal value of all property which passes on the death of every person dying after the 54 date therein mentioned.
By seation 2, sub section (1), property passing on the death of the deceased was deemed to include. .(b) property in which the deceased had an interest ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest;. (c) property which would be required on the death of the deceased to be included in an account under section 38 of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889.
There, a father and his two sons carried on the business of lace or plain net manufacturers under a deed of partnership which included covenants (among others) to the following effect: Neither of the sons was, without the consent of the father, to be directly or indirectly engaged in any trade or business except on account and for the benefit of the partnership; both the sons were bound to give so much time and attention to the business as the proper conduct of its affairs required; the father was not bound to give more time or attention to the business then he should think fit; if the father should die his share was to accrue to the sons in equal shares subject only to their paying out to his representatives the value of his share and interest at his death as ascertained by an account to be made as on the day of his death with all proper valuations, but without any valuation of or allowance for goodwill, which goodwill was to accrue to the sons in equal shares.
The father died, the value of his share and interest at his death was ascertained by an account taken as directed by the deed of partnership without any valuation of or allowance for goodwill.
The share and interest so ascertained amounted to a large sum, and estate duty was paid on that sum.
The Crown claimed estate duty on the value of the father 's share in the goodwill on the ground that it was (1) property which passed on the death of the father within section 1 of the Finance Act, 1894, or (2) property in which the deceased had an interest ceasing on his death in which a benefit accrued or arose to the sons by the cesser of that interest within section 2, sub section 1(b) of the Act, or (3) property passing under a settlement by deed whereby an interest for life was reserved to the father, and therefore property which would be required on the death of the father to be included in an account under section 38 of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889, as further amended by and within the provision of section 2, sub section 1(c), of the Finance Act, 1894, or (4) an interest provided by the father in which a beneficial interest accrued or arose by survivorship on his death within section 2, sub section 1(d) of the Act.
55 The Court deciding on the evidence that the goodwill of the business was of small value held that, having regard to the obligation of the sons under the partnership deed, the share and interest of the father in the goodwill of the busines passed on the death of the father to the sons by reason only of a bona fide purchase for full consideration in money 's worth paid to the father for his own use and benefit, within the meaning of section 3, sub section(1) of the Act.
It was further held that the share and interest of the father in the goodwill of the business was not (1) property which passed on the death of the father within the meaning of section 1 of the Act, nor (2) an interest for life reserved to the father within the meaning of section 38, subsection 2(c) of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889.
It was further held that it was a benefit accruing or arising to the sons by the cesser of an interest which the father had in property and which ceased on his death within section 2 sub section 1(b) of the Act.
The High Court, on the analysis of this case which was placed before it, came to the conclusion that clause 10 of the present partnership deed with which we are concerned is entirely different.
In the partnership agreement in Boden 's case, the interest of the deceased passed to his legal representatives immediately after his death because his share was to accrue to his partnership who were his sons subject only to their paying to his legal representatives the value of their share as on the date of death ascertained by proper valuation.
This decision, in our opinion, must be understood in the light of the facts of that case and though there is a ring of similarity with the facts of the present case.
Though clause 10 of the present agreement is different on the aspect of section 7 of the Act, this decision certainly supports the revenue 's contentions.
In Perpetual Executors and Trustees Association of Australia Ltd. vs Commissioner of Taxes of the Commonwealth of Australia (supra) (E.D) the Privy Council had to deal with a case where the principal asset of a testator was his interest in a partnership pursuant to a deed of partnership which, inter alia, conferred option on the surviving partners to purchase the testator 's share in the capital on his death and further provide that "in computing the amount of purchase money payable on account of the exercise of any option, no sum shall be added or taken into account for the goodwill.
" It was held by the Privy Council that the whole of the testator 's interest including goodwill was assessable to duty.
In so far as the Boden 's case decided that the 56 goodwill did not pass was dissented from.
But the moot question is, what happens to the share of the partner in the goodwill of the firm.
Clause 10 of the partnership deed in the instant case states as indicated before that the firm shall not stand dissolved on the death of any of the partners.
Therefore death of any of the partners will not dissolve the partnership firm and so long as partnership firm exists, goodwill as an intangible asset will belong to all the partners.
What the clause says that on the death of the partner, the partner dying shall have no right whatsoever in the goodwill of the firm.
It is clear, there fore, that goodwill exists up to the death among the partners.
If it does, then the property in the goodwill will also exist in the partners.
After his death, the partner shall have no right.
It means to convey that as a result of inheritance, the heirs of the partners will not get any share but it cannot evaporate nor can the parties by agreement defeat the rights of the revenue.
The very moment life ceases, the right of the deceased in the asset ceases and at that moment the property shall pass and/or shall be deemed to pass on.
Jawaharlal Nehru in 'The Discovery of India ' quotes Aurobindo Ghose thus: "Aurobindo Ghosh writes comewhere of the present as 'the pure and virgin moment ' that razor 's edge of time and existence which divides the past from the future, and is, and yet, instantaneously is not.
The phrase is attractive and yet what does it mean? The virgin moment emerging from the veil of the future in all its naked purity, coming into contact with us, and immediately becoming the soiled and stale past.
Is it we that soil it and violate it? Or is the moment not so virgin after all, for it is bound up with all the harlotry of the past?" (1983 Impression p. 21) So therefore in that razor 's edge of time and existence which divides the past from the future, and is, and yet, instantaneously is not, the property indubitably passes on, to whom depends upon the facts and circumstances of a particular case.
If property exists, as it must as the clause does not and indeed cannot say that goodwill vanishes, then share of the partner exists.
If that is so then the title to that property cannot be in the vacuum.
The High Court at page 309 of the report has observed that interest of a dying partner automatically comes to an end on his death.
The High Court further stated that if an interest in any property came 57 to an end at a particular point of time, nothing survived which could be inherited by the heirs.
We are unable to accept this position.
The moment the life comes to an end, 'the razor ' edge of time and existence which divides the past from the future, and is, and yet, instantaneously is not, ' at that time property passes or is deemed to pass.
The goodwill of the firm after the death of the dying partner does not get diminished or extinguished.
Whoever has the benefit of that firm has the benefit of the value of that goodwill.
Therefore if by any arrangement, for instance, clause (10) of the partnership agreement in the instant case, the heirs do not get any share in the goodwill, the surviving partners who will have the benefit of the partnership will certainly have that benefit.
The High Court was right in observing at page 312 of the report that section 7 of the Act might apply to the facts of a given case if it could be shown that there was a cesser of any interest resulting in some form of benefit.
Indeed in this case whoever gets the partnership firm is the gainer.
Therefore, as a result of the death of the dying partner, there is cesser of interest as well as accrual or arising of benefit of the said cesser.
It is well settled that during the subsistence of the partnership, no partner can claim any specific share in any particular items of the partnership assets.
A partner 's interest in running partnership is not specific and is not confined to any specific item of partnership property but that does not mean that the partner has no interest in any individual asset of the firm.
His interest obviously extends to each and every item of firm 's asset.
See the observations in the case of Addanki Narayanappa & Anr.
vs Bhaskara Krishnappa and 13 Ors.; , 3 S.C.R. 400.
So the goodwill of the firm was an asset in which dying partner had a share.
It passed from the death of the dying partner and the beneficiary of such passing would be one who by virtue of the partnership agreement would be entitled to the value of that asset.
The question is how should such asset be valued? Under the Act, the levy of the estate duty is on every asset that will pass on the death of the deceased.
Part V of the Act deals with the valuation of assets that is chargeable to tax under the Act.
Sub section (1) of section 36 provides that the principal value of any property shall be estimated to be the price which, in the opinion of the Controller, it would fetch if sold in the open market at the time of the deceased 's death.
Subsection (2) of section 36 further stipulates that in estimating the principal value under this section the Controller shall fix the price of the property according to the market price at the time of the deceased 's 58 death and shall not make any reduction in the estimate on account of the estimate being made on certain assumptions.
Section 40 deals with the valuation of benefits from interests ceasing on death.
It has been canvassed before the High Court on behalf of the accountable person and it found favour with the High Court that clause (b) of section 40 of the Act which deals with the valuation of benefit of interest arising on death would be wholly inapplicable with the facts and circumstances of this case.
We are unable to accept this position.
Difficulties in making apportionment does not make a taxable item non taxable.
See in this connection the observations of this Court in Commissioner of Income tax, Madras.
vs Best and Co. (Private) Ltd., Reliance was placed on behalf of the accountable person on a decision of the Judicial Committee in Attorney General of Ceylon vs AR.
Arunachalam Chettiar and Others, 34 I.T.R. 20 E.D.
The facts of that case and the clauses with which the Judicial Committee was concerned there were entirely different.
There the son had merely a right to be maintained by the Karta out of the common fund to an extent in the Karta 's absolute discretion and there was no basis of valuation which in relation to such an 'interest ' would conform to the scheme prescribed under section 17(6) of the Ordinance with which the Judicial Committee was concerned.
A full bench of the Madras High Court in the case of Alladi Kuppuswami vs Controller of Estate Duty, Madras, , had to construe the effect of a Hindu Women 's Rights to Property Act, 1937 and to consider the nature of the right of the widow in the property.
It was found that at the death of the widow, there was no cesser of any interest she had in the joint family property and, in any case, her interest being entirely undefined, it lapsed on her death resulting in no change in the coparcenership as such and her interest could not properly be regarded as an interest in property within the meaning of section 7(1) of the Act.
Our attention was drawn to certain observations of Veeraswami, C.J. at page 507 of the report wherein it was observed that it was only property that passed in the sense of passing hands by way of inheritance, or other form of devolution which seemed to attract section 5.
Likewise, for purposes of section 6, it must be property which the deceased at the time of his death was competent 59 to dispose of.
So also, for the application of the first part of section 7(1), it should be such interest in property, as on its cesser the benefit that accrues or arises should be referable to the whole or less than the whole income of the property.
The Chief Justice had observed that the implication was that if that measure in terms of income of the property was not apposite to the cesser of an interest, it would not be an interest such as was contemplated by section 7(1) of the Act.
It is not necessary to examine this proposition in any greater detail because in our opinion under section 5 of the Act read with section 36, valuation can be made in the instant case.
The Madras High Court in Controller of Estate Duty, Madras vs Ibrahim Gulam Hussain Currimbhoy, , observed that the goodwill being an asset of the firm belonged to the firm, i.e., to all the partners, and the death of the deceased partner did not extinguish his share in the goodwill but resulted in the augmentation of the interest of the surviving partners in the goodwill in view of clause 14 of the partnership deed in that case.
Clause 14 was as follows: "The retiring partner or the legal representatives of the deceased partner shall not be entitled to the goodwill of the business as the surviving or continuing partners alone shall be entitled to the goodwill and to continue to carry on the business under the same name and style.
" And hence there was a passing of the deceased 's share in the goodwill even if there was no devolution of the deceased 's interest in the goodwill on the legal representatives.
The interest in the goodwill which the deceased possessed and could dispose of along with his entire interest in the firm at the time of his death came to devolve on the surviving partners and their share in the goodwill was augmented to the extent of the share of the deceased as per clause 14 of the partnership deed in that case and the Madras High Court held that section 5, of the Act applied.
Section 5, we have noted, is applicable in the instant case in the sense that property passed on the death of the deceased partner and if that is so, section 40 would not have any application in the valuation.
On this aspect, the Madras High Court was unable to agree with the Gujarat High Court 's decision under appeal.
The Madras High Court relied on the decision of this Court in Khushal Khemgar Saha vs Mrs. Khorsed Banu, [1970]3 S.C.R. 689.
Our attention was also drawn to a decision of the Madras High 60 Court in the case of Smt.
Surumbayi Ammal vs Controller of Estate Duty, Madras, But the question under controversy was different in that case and no useful purpose would be served by examining that case in detail.
The full bench of Punjab and Haryana High Court in the case of State vs Prem Nath, , held that the goodwill of a firm was an asset of the firm, the share of the deceased partner in which, along with his share in the other assets of the firm, devolved for the purposes of estate duty, on his death, upon his legal representatives notwithstanding any clause in the deed of partnership to the effect that the death of a partner should not disolve the firm and that the surviving partners were entitled to carry on the business on the death of the partner.
The Punjab & Haryana High Court noted that the decision under appeal of the Gujarat High Court did not consider the question whether the devolution of the goodwill on the surviving partners on the death of the deceased partner was itself not sufficient to constitute passing of the property within the meaning of section 5 of the Act.
It noted that this view of the Gujarat High Court was contrary to the Privy Council 's decision referred to hereinbefore and that of the Madras High Court 's view noted earlier.
The Bombay High Court in the case of Controller of Estate Duty, Bombay City I vs Fakirchand Fatehchand Sachdev, , came to the conclusion that the charging provisions and the computation provisions in the constituted an integrated scheme, and if in a given case it was not possible to compute the value of a particular property passing on death, then that property did not become exigible to the charge of estate duty.
Where certain property was deemed to pass under section 7(1) of the Act, estate duty thereon would be chargeable under section 5, but the value of the benefit accruing or arising from the cesser of an interest ceasing on the death of the deceased would have to be computed under section 40 and if it could not be computed, then such a benefit was not liable to the charge of estate duty.
The goodwill of a firm was one of the properties or assets of a firm.
Merely because it was an intangible asset, it did not stand on a diferent footing from the tangible assets of the firm, but in making up the final accounts it had to be taken together with the other assets of the firm in arriving at the value of the total assets and for deducting therefrom the liabilities as provided by law and in paying to the partners their share in the balance so arrived at.
Where a partnership was dissolved by the death of a partner, his share in the firm 61 passed on his death to his legal representatives.
Where a partnership A was not dissolved on the death of a partner but the surviving partners became entitled to continue the partnership business, the deceased partner 's share passed to his surviving partners subject to their making payment to the legal representatives of the deceased partner of the amount of the value of his share in accordance with the provisions of the deed of partnership.
A partner did not have a defined share in the goodwill of the firm and the estate duty authorities could not regard it as a separate property by itself apart from the other assets and liabilities of the firm and include its value in the estate of a deceased partner under section section The Bombay High Court could not agree with the view of the Gujarat High Court under appeal.
In the case of Controller of Estate Duty vs Kanta Devi Taneja, , the Gauhati High Court held that passing of property was not a mere change of source or title but change of beneficial possession or enjoyment.
The interest of a partner in a partnership firm was property within the meaning of section 2(15) of the , and such interest extended to the share of the partnership including goodwill.
Therefore, on the death of a partner, his interest in the entire unit of the firm including goodwill passes, irrespective of the provisions of the partnership deed as to its final devolution.
The Calcutta High Court in the case of Controller of Estate Duty, West Bengal vs Annaraj Mehta and Deoraj Mehta, had occasion to consider this question and held that what passed on the death of a partner was his share in the firm, that is, his interest in the entire unit of the firm.
This had to include goodwill.
The fact that such interest might devolve not on the legal representatives but on a different group or category of persons or that from the goodwill of the legal representatives might be excluded would not make any difference for the purpose of assessment to estate duty.
The entirety of the the interest of the deceased partner that would pass, which necessarily included goodwill, would be includible in the estate.
The valuation of such entire interest had to be determined as provided under section 36 of the read with rule 7(c) of the Estate Duty Rules, 1953.
Goodwill as such could not be valued, according to the Calcutta High Court, for inclusion in the estate of the deceased for purposes of estate duty.
The High Court observed at page 552 of the report as follows: "We hold that the Tribunal 's finding that the goodwill in 62 the firm, Messrs. Ashok Foundary and Metal Works, did not pass on the death of the deceased is incorrect but the finding that the valuation of the goodwill as such could not be included in the estate of the deceased for the purpose of the estate duty is correct.
Goodwill being part of the entire assets of the firm, the entire share of the deceased therein has to be valued in accordance with law and this value has to be included in the estate for levy of estate duty." The Allahabad High Court in the case of Controller of Estate Duty vs Smt.
Ram Sumarni Devi, , followed the decision under appeal and was of the view that the goodwill could not be included in the value of the property passing on the death of a partner.
In P.T. Abdul Sattar vs Controller of Estate Duty, , the Kerala High Court came to the conclusion that under clause 15 of the deed it had to construe, provided that in the event of death or retirement of a partner, such deceased or retiring partner would not be entitled to any goodwill of the firm.
A had died in 1969 and the Asst.
Controller held that the interest of A in the goodwill of the firm passed on his death and this was upheld by the Tribunal.
It was held by the High Court that under clause 15, the interest of A in the goodwill of the firm automatically came to an end on his death.
Property in the goodwill did not, therefore, pass on his death.
We are, however, for the reasons we have indicated before, unable to accept this conclusion.
In the aforesaid view of the matter, we are of the opinion that the share of the deceased in the partnership did not evaporate or disappear.
It went together with the other assets and should be valued in the manner contemplated under rule 7(c) of the Estate Duty Rules as indicated in the judgment of the High Court of Calcutta in Controller of Estate Duty, West Bengal vs Annaraj Mehta and Deoraj Mehta (supra) .
The second question must, therefore, be answered in the affirmative and in favour of the revenue.
The appeal is, therefore, allowed.
In the facts and circumstances of the case, parties will pay and bear their own costs.
Consequential orders in accordance with law and in consonance of this decision should be passed by the Tribunal upon notice, to all necessary parties.
A.P.J .
Appeal allowed.
|
One N. Kanti Lal had 28% share in a partnership firm.
The Partnership Deed, by cl.
(10) provided that the firm shall not stand dissolved on death of any of the partners and the partner dying shall have no right whatever in the goodwill of the firm.
On his death, the respondent accountable person filed necessary return under the without including the value of the share of the deceased in the goodwill of the firm.
The Assistant Controller of Estate Duty, however, held that the share of the deceased in the goodwill of the firm was liable to be included in the principal value of his property and added the same to the value of the interest which the deceased had in the partnership assets.
The Appellate Controller of Estate Duty confirmed the aforesaid order in appeal.
The accountable person preferred appeal before the Appellate Tribunal contending: (1) that the deceased had no interest in the assets of the firm and hence his share in the goodwill did not pass at all; (2) that in view of cl.
(10) of the Partnership Deed the share of the deceased partner in the goodwill did not pass and as such was not liable to the charge of estate duty; and (3) that when a partnership was a going concern, there could not be any separate valuation of the goodwill which went with the running business.
The Tribunal rejected all the contentions and held that in spite of cl.
(10) of the partnership agreement, the value of the goodwill to the extent of the share of the deceased passed on his death and it was liable to be charged to estate duty.
46 On reference by the Tribunal, the High Court held: (i) that the interest of the deceased in the firm was property within the meaning of the provisions of the ; and (ii) that the value of the interest of the deceased in the partnership firm would not include the goodwill of the partnership firm.
This Court, on the question: 'Whether the value of the interest of the deceased in a partnership firm would include the goodwill of the partnership firm and liable to estate duty ', allowing the Appeal of the Revenue, ^ HELD: 1.
In a partnership there is a community of interest in which all the partners take in the property of the firm.
But that does not mean that during the subsistence of the partnership a particular partner has any proprietary interest in the assets of the firm.
Every partner of the firm has a right to get his share of profits till the firm subsists, and he has also a right to see that all the assets of the partnership are applied to and used for the purpose of the partnership business.
All these rights of a partner show that he has got a marketable interest in all the capital assets of the firm including the goodwill asset even during the subsistence of the partnership.
This interest is 'property ' within the meaning of section 2(15) of the .
[53 D F] 2.
The goodwill of the firm is an asset in which the dying partner has a share.
It passes on the death of the dying partner and the beneficiary of such passing would be one who by virtue of the partnership agreement would be entitled to the value of that asset.
The fact that such interest might devolve not on the legal representatives but on a different group or category of persons or that from the goodwill the legal representatives might be excluded, would not make any difference for the purpose of assessment of estate duty.
The entirety of the interest of the deceased partner that would pass, which necessarily included goodwill, would be includible in the estate.
The valuation of such entire interest has to be determined as provided under section 36 of the read with Rule 7(2) of the Estate Duty Rules, 1953.
[61 E G] 3.
The share of the deceased in the partnership did not evaporate or disappear.
It went together with the other assets and should be valued in the manner contemplated under Rule 7(c) of the Estate Duty Rules.
The goodwill of the firm after the death of the dying partner does not get diminished or extinguished.
Whoever has the benefit of that firm has the benefit of the value of that goodwill.
Therefore, if by any 47 arrangement, for instance, clause (10) of the partnership agreement in the instant case, heirs do not get any share in the good will, the surviving partners who will have the benefit of the partnership will certainly have that benefit.
Therefore, as a result of the death of the dying partner, there is cesser of interest as well as accrual or arising of benefit of the said cesser.
B D] 4.
Difficulties in making apportionment do not make a taxable item non taxable.[58 C] Perpetual Executors and Trustees Association of Australia Ltd. vs Commissioner of Taxes, = 25 I.T.R. (ED) 47, Attorney General vs Boden and Another, 1912 (I) K.B. 539, Addanki Narayanappa & Anr.
vs Bhashara Krishnappa and 13 ors.
, A.I.R. 1966 S.C. 1330=[1966] 3 SCR 400, Commission of Income tax, Madras vs Best and Co. (Private) Ltd., 60 I.T.R.11 and Khushal Khemgar Shah vs Mrs. Khorshed Banu; , relied upon.
Controller of Estate Duty, Madras vs Ibrahim Gulam Hussain Currimbhoy, , State vs Prem Nath, , Controller of Estate Duty, Bombay City I vs Fakirchand Fatchchand Sachdev, , Controller of Estate Duty vs Kanta Devi Taneja, and Controller of Estate Duty, West Bengal vs Annaraj Mehta and Deoraj Mehta, , approved.
Attorney General of Ceylon vs AR.
Arunachalam Chettiar and Others, E.D., Alladi Kuppuswami vs Controller of Estate Duty, Madras, and Smt.
Surumbayi Ammal vs
Controller of Estate Duty, Madras, , distinguished.
Controller of Estate Duty vs Smt.
Ram Sumarni Devi, and P. Abdul Sattar vs Controller of Estate Duty, , overruled.
|
minal Appeal No. 629 of 1985.
From the Judgment and Order dated 25.6.1985 of the Andhra Pradesh High Court in Criminal Appeal No. 637 of 1983.
K.Madhava Reddy, A. Subba Rao and A.D.N. Rao for the Appellants.
G. Prabhakar for the Respondent.
The Judgment of the Court was delivered by DR.ANAND, J.
The curse of dowry has claimed yet another victim.
Kundula Bala Subrahmanyam, the husband of the deceased Kundula Koti Nagbani and his mother Kundula Annapurna (mother in law of the deceased) have filed this appeal under Section 2(a) of the against the judgment of the High Court of Andhra Pradesh, Hyderabad, dated 25.6.1985, setting aside the judgment of acquittal passed by the Sessions Judge, East Godavari Division and convicting both the appellants for an offence under Section 302/34 IPC and sentencing each of them to suffer imprisonment for life.
On 23rd of August, 1981, between 12.30.1.00 p.m. on hearing screams and cry of deceased Kundula Koti Nagbani, at that time aged about 18 years, Pulapa Lakshmi PW2, Vempati Paparao PW3 and Vempati Radha PW4, rushed to the house of the appellant and found both the appellants along with the father of appellant No. 1 (father in law of the deceased) hurriedly coming out of the kitchen while the deceased was lying on the floor engulfed in flames.
Since, the appellants or the father in law of the deceased were making no attempts to put off the flames, PW2 asked appellant No. 1 to give her something so that she could extinguish the fire.
He, however, did not respond.
She then requested first appellant 's father to give something to her so that the fire could be put off.
The father of appellant No. 1 enquired if he should get a bucket of water.
PW2, thereupon, requested him to give either a bed sheet or a blanket.
The father of appellant No. 1 then brought out a bed sheet (Bontha) from the cot and 675 as he was passing it on, to PW2, the mother in law of the deceased, appellant No. 2, told her husband not to give the bontha to PW2.
PW2, in the meanwhile, took the bontha from the father of the first appellant and tried to extinguish the fire.
The deceased turned her side.
She was alive.
The deceased asked PW2 for some water.
Since, the petticoat of the deceased was burning, PW3, the father of PW2, who had also rushed along with her to the house of the appellant broke the thread of the petticoat to save her from further burning and threw away the burning garments In the process, he also received some burn injuries.
PW2 poured water into the mouth of the deceased and enquired from her as to what had happened.
The deceased told her that "her mother in law had poured kerosene over her and her husband had set fire to her".
The deceased again felt thirsty and asked for more water which was again given to her by PW2.
The above statement made by the deceased to PW2 was overheard by PW3 and some others, who had also reached on hearing the cries.
Vempati Nagabhushanam PW5, another immediate neighbor of the appellants living only about 2 yards away also heard the cries of the deceased and rushed to the house of the appellant.
He noticed PW3 was pulling out the petticoat of the deceased while PW2 was attempting to extinguish fire.
He saw PW2 pouring water into the mouth of the deceased.
He also heard the statement made by the deceased to PW2 about the manner in which she had been set on fire.
PW5 thereupon went away to inform the maternal uncle of the deceased at Malakapalli.
On the way, he met one Ramakrishna coming on a motor cycle and at his request Ramakrishna gave him a ride to Malakapalli.
On reaching the house of the maternal uncle of the deceased, they found the brother of the deceased Vempati Sreerama Krishna Sreeram PWl was also present there.
He conveyed to them the information regarding the burning of the deceased and also what he had heard the deceased telling PW2.
Ramarao and PWl then went on the same motorcycle to Dharmavaram.
PWl reached the house of the appellant and saw a number of persons including PWs 2 and 3 gathered there.
The deceased was lying on the floor and at that time she had no clothes on her.
He noticed that she had received burn injuries from her breasts downwards to her legs.
On seeing her plight, PW1 started crying and hitting his head against a pillar.
When the deceased noticed that PW1 had come, she asked PW2 to call her brother PWl inside.
PW2 thereupon went out and brought PW1 to the kitchen where the deceased took the palm of PWl into her own palms and told him in Hindi "please tell mother and father as I am 676 telling you.
My mother in law poured kerosene on me and my husband set fire.
You tell father and mother about this.
Don 't fight.
Anyhow I am dying.
" She also told her brother PW1 to take back the cash given to her and divide it amongst the sisters in equal share and get them married off to nice persons.
At this juncture, the first appellant, husband of the deceased came inside the kitchen and with folded hands begged the deceased for forgiveness saying that he would not repeat what he had done and therefore he may be pardoned.
PWl got wild and caught hold of the neck of the first appellant.
PW2 and PW3 rushed towards them and released the first appellant from the hold of PW1 and sent PWl to another uncle 's house and told the uncle that since PWl was in an agitated mood he should take care of him.
Within an hour, however, PWl went back to the house of the deceased and by that time, a local Doctor PW6, Dr. R. Radha krishnamurthy had arrived at the house and was giving first aid to her and she was lying on a cot in the verandah.
PW6 at about 3.30 p.m. advised the removal of the deceased to the Government Hospital at Kovvur.
A matador van was secured and at about 4.30 p.m. PW1, Ramarao, his maternal uncle, the wife of Ramarao and some other neighbors took the deceased to the Government Hospital at Kovvur in the matador van reaching there at about 5 p.m.
At about 5.30 p.m., Dr. K. Parameswaradas PW9 examined the deceased and declared her dead.
PWl thereupon went to the police station which is adjacent to the hospital alongwith his uncle and lodged the report exhibit
P4 with the Head Constable Md. Navabjani PW12.
A case under section 302 IPC was registered and information was sent to Inspector of Police G. Scendavce Rao PW14 on telephone.
After collecting a copy of the FIR, PW14 proceeded to the Government Hospital and from there went to the scene of occurrence.
He seized M.0 's 1 to 3, drew the site plan of the scene of occurrence and examined PWs 1 to 5 and PW9 at Dharmavaram.
He also held the inquest proceedings from 6.30 a.m. to 8.30 a.m. on August 24 1981 and after getting the postmortem conducted handed over the dead body to the family of the deceased.
PW9 Dr. K. Parameswaradas who conducted the postmortem examination in his report Ex.Pl8 noted extensive burns to the extent of 90% on the body of the deceased and opined that the deceased had died due to the extensive burns all over the body and that the injuries were sufficient in the ordinary course of nature to cause death.
During the investigation, the investigating officer made a request for the preservation of viscera of the deceased so that it could be sent for chemical examination, as according to the state 677 ment of PW6, the deceased had allegedly told him that she had consumed dettol to commit suicide and since she could not bear the pain she had set herself on fire.
The report of the chemical examiner exhibit
Pl6, however, revealed that no poison was detected and that the death had been caused due to extensive burns.
Further investigation into the case was, carried out by Md. Baduruddin PW15, Inspector of the Crime Branch.
During the investigation, the father of the deceased Venkataramana handed over letters Exs.
Pl P3 to the investigating officer.
Both the appellants had made themselves scarce and were not found in the village when search for them was made by the investigating officer.
The first appellant surrendered in the court on 10.11.1981 while the second appellant surrendered in the court on 7th of December, 1981.
After the investigation was over, challan was filed and both the appellants were sent up for trial in the Court of Sessions Judge East Godavari Division at Rajahmundry.
At the trial, the prosecution inter alia relied upon the following circumstances with a view to connect the appellant with the crime: (1) Motive; (2) Two dying declarations made to PW2 and to PW1; (3) Medical Evidence; (4) Conduct of the appellant immediately and after the occurrence; (5) Absconding of the appellants.
The appellants when examined under Section 313 of the Criminal Procedure Code denied their involvement and stated the case to be a false one.
They, however, produced no defence.
The learned Trial Court did not accept the prosecution version and held that there was no motive for the appellant to commit the crime; that the evidence of PWs 2 to 4 could not be relied upon; that PWI had made improvements in his statements recorded at the trial and, therefore, the oral dying declaration made to him could not be relied upon.
The Trial court also held that there had been unexplained delay in lodging report with the police.
The Trial Court placed reliance on the testimony of hostile 678 witness PW6 and held that the case was one of suicide and not of murder.
On those findings, the learned Sessions Judge acquitted both the appellants.
On an appeal, filed by the State, a Division Bench of the High Court of Andhra Pradesh set aside the judgment of the learned Sessions Judge and convicted both the appellants for an offence under Section 302/34 IPC.
Speaking for the Division Bench, K. Ramaswamy J. (as His Lordship then was) found no hesitation to hold PWl as a witness of truth and a wholly reliable witness and also opined that the evidence of 'PWs 2 and 3 was trustworthy and reliable.
The dying declarations made by the deceased to PW2 and subsequently to PWl were believed and relied upon.
It was held that report exhibit
P4 had been given by PWl immediately after the deceased was declared dead by the Doctor and therefore there was no delay much less unexplained delay in lodging the report.
While dealing with the conduct of the appellant, it was opined that their conduct was inconsistent with their innocence and consistent only with the hypothesis that appellant No. 2 had committed the act of pouring kerosene on the deceased and appellant No. 1 had lit fire.
With regard to the existence of motive, it was held that the appellants were actuated with a motive to do away with the life of the deceased for not getting the land registered in the name of the first appellant.
Finally, the High Court found that the chain of the established circumstances was complete and the circumstances were sufficient to conclusive establish that the appellants and the appellants alone had committed the crime of murder of the deceased.
The High Court held that the consideration of evidence on record and the reasoning of the Trial Court was most unsatisfactory and could not be sustained and therefore set aside the order of acquittal and convicted both the appellants for the offence under Section 302/34 IPC and sentenced each one of them to imprisonment for life.
Appearing for the appellants before us, Mr. Madhav Reddy, the learned Senior Counsel urged that since the Trial Court had acquitted the appellants, the High Court was not justified in recording an order of conviction as the findings recorded by the Trial Court could not be said to be perverse.
It was argued that the dying declarations were not worthy of reliance and the motive was feeble and not established.
Learned counsel submitted that the surrendering of the appellants themselves in the court on 10.11.1981 and 7.12.1981 itself was enough to show that they had no 679 guilty conscious and the prosecution was not justified in relying upon the conduct as an adverse conduct against the appellants.
While explaining the conduct of the appellants at the time of and after the occurrence, he submitted that since all neighbors had become hostile, out of fear the appellants did not act either to put off the fire or remove the deceased to the hospital.
In reply, learned counsel for the State argued that the findings of the Trial Court were not only conjectural but also perverse and the evidence of the witnesses was disbelieved on mere surmises.
It was submitted that the Trial Court did not property discuss the two dying declarations mad by the deceased and since the dying declarations have been proved by reliable evidence, those by themselves could form the basis of conviction of the appellants.
It was then submitted that the High Court after a careful appraisal of the evidence had rightly set aside the judgment of the Trial Court which suffered from illegality as well as manifest error and perversity.
Learned counsel submitted that the prosecution had established the case against the appellants beyond every reasonable doubt and their appeals deserve to be dismissed.
Admittedly, there is no eye witness in the case.
The case is sought to be established by the prosecution from circumstantial evidence.
In a case based on circumstantial, evidence, the settled law is that the circumstance from which the conclusion of guilt is drawn should be fully proved an these circumstances must be conclusive in nature.
Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence.
The proved circumstances must be consistent only wit the hypothesis of the guilt of the accused alone and totally inconsistent wit his innocence.
The courts have, therefore, the duty to carefully scrutinize the evidence and deal with each circumstance carefully and thereafter fin whether the chain of the established circumstances is complete or no before passing an order of conviction.
It is in the light of the above principles that we shall deal with various circumstances relied upon by the prosecution.
(1)Motive: In a case based on circumstantial evidence, motive as sums great significance as its existence is an enlightening factor in process of presumptive reasoning.
The motive in this case is alleged to be the greed of dowry.
680 On 18.5.1979, marriage between the appellant and the deceased was solemnised.
The deceased aged about 18 years was prosecuting her Intermediate course of study at that time.
She was the eldest of the five children of one Vempati Venkataramana, who at the relevant time was working as an Assistant Engineer with the Railways at Gorakhpur.
At the time of the marriage, the parents of the deceased had agreed to give Rs. 50,000 in cash, 50 sovereigns of gold and two acres of land as dowry.
The cash was paid at the time of the marriage itself alongwith 15 sovereigns of gold.
The parents of the deceased had promised to give the remaining 35 gold sovereigns and get the land also registered subsequently, though the possession of the land measuring about 3.70 acres was given to the appellant No. 1.
The mother in law of the deceased and her husband had been pressurising the deceased all along to bring the remaining sovereigns and also to get the land registered in the name of the first appellant.
She conveyed it to her mother PW7.
While the parents of the deceased agreed to get the land registered in the name of the deceased, the first appellant and his parents were insisting that the land should be got registered in his name and not in the name of the deceased.
Since that desire was not fulfilled, the deceased was being continuously harassed and ill treated.
A strick vigil was kept on her at the house of her in laws and she was not even allowed to meet anybody nor were the neighbors permitted to come and meet or talk to her.
She was being prevented from writing letters to her family also, but stealthy, she wrote letters Exs.
Pl 3 and got them posted through a neighbor.
The contents of those letters are rather revealing and expose the extent of the harassment to which the deceased was being subjected to by her mother in law and her husband.
After seeing the contents of the letters and with a view to find out the cause of her distress, PW1, her brother went to Dharmavaram on August 22, 1981, to the house of the deceased.
The deceased, however, was so terrorised that she could not speak to him freely.
She was surrounded by her husband and her mother in law, who did not talk to PWl at all to show their indifference.
From the evidence of the prosecution witnesses and particularly that of the mother of the deceased PW7, the immediate provocation was the insistence of the appellants that the land be got registered in the name of the husband and the reluctance ' of the parents of the deceased to do so and instead their desire to get it registered in the name of the deceased.
The oral evidence led by the prosecution in this behalf is wholly consistent.
In her letter exhibit
P2, the 681 deceased had clearly mentioned that she was getting her letters posted through PW4.
She requested her sisters to write letters to her in Hindi so that her in laws, who did not know Hindi, could not know what was being written.
In one of her letters, a part of which was addressed to her sister, she wrote: ". .I am not going to anybody 's house.
One day I went to the house of sister in law Radha to deliver the letter secretly.
Their mood was changed on account of going to their house.
That is why I stopped going.
" Do not mention even a single word in your letter that I have been writing to you.
Ask mother not to worry.
On hearing about your results write a letter without fail.
If I get an opportunity I will definitely write a letter. " In her letter exhibit
P1 to her father, she wrote: Father I am feeling much bore here because no one come to our house nor I am allowed to go their house Please always write letters.
So that I may be satisfied in seeing your letters.
If I may not give reply to your letter then you please don 't mind it.
You know here 's conditions.
Rest is O.K. Father you also take care of your health.
" In the same letter while addressing her sisters, she wrote: The lock is opened.
I am writing this letter secretly.
In reply do not write that you have received the letter.
If you write like that these people will become more angry She also wrote to her sister: not at house and there is no watch over me.
I am getting the letters posted through sister in law Radha secretly.
You write letters mostly in Hindi only so that even if they chanced to fall in the hands of any one, they cannot understand The tenor of her letters disclose the distressing state of affairs at the house 682 of her in laws.
These letters coupled with the evidence of her mother go to show how the deceased was being tormented and harassed.
It is indeed a shame and pity that within just two years of her marriage, her dream of a happy married life was shattered and she found herself almost as a prisoner and 'a frightened chicken ' who had to write letters to her parents and sisters 'secretly ' for the fear that if her in laws came to know they would "become more angry '.
She had to request her sisters to reply to her letters in Hindi so that "even if they chanced to fall in the hands of anyone, they cannot understand".
One can only imagine the plight of this young bride and the sadistic behavior born out of greed for dowry of her husband and mother in law.
Not having been able to get the land registered in the name of the first appellant appears to have frustrated them to the extent of murdering the young wife.
The evidence led by the prosecution to establish the existence of motive is wholly reliable and is also consistent.
The prosecution has successfully established that the appellants had strong and compelling motive to commit the crime because of her parents not agreeing to get the land registered in the name of the first appellant and their insistence to have the land registered in the name of their own daughter instead.
The motive, has, been conclusively established by the prosecution and we have no hesitation to hold that the prosecution has succeeded in establishing the existence of the motive for both the appellants to commit the crime conclusively and positively and we agree with the finding of the High Court in that behalf.
2.Dying Declarations: The next piece of circumstantial evidence relied upon by the prosecution are two dying declarations made by the deceased.
According to the prosecution case, the deceased made the first dying declara tion before PW2 when she after hearing her cries came to the house and found both the appellants and the father of appellant No. 1 coming out of the kitchen and the deceased lying on the floor engulfed in flames.
According to PW2, the deceased told her that her mother in law had poured kerosene on her and her husband had set her on fire.
This statement was also heard by PW3 & PW5.
The second dying declaration was made by the deceased to her brother PW1, after he was called by her to the kitchen.
The deceased, according to the prosecution case, on meeting her brother, took the palm of PWl into her own palms and inter alia told to him that "her mother in law poured kerosene on her and her husband set fire to her".
The statement made by the deceased to 683 PW1 was in Hindi.
Both the statements, as noticed above, relate to the circumstances leading to the cause of her death, as according to the medical evidence, the deceased died of 90% burn injuries.
Both the dying declarations are oral.
They have been made to friends and to the brother of the deceased respectively.
In view of the close relationship of the witnesses to whom the oral dying declarations were made, it becomes necessary for us to carefully scrutinize and appreciate the evidence of the witnesses to the dying declaration.
We have already adverted to the evidence of these witnesses (PW1, PW2, PW3) while narrating the prosecution case.
Indeed, PWl is the brother of the deceased and therefore a very close relation, but mere relationship cannot be a ground to discard his testimony, if it is otherwise found to be reliable and trustworthy.
In the natural course of events, the deceased who was on the verge of her death would have conveyed to her near and dear ones the circumstances leading to her receiving the burn injuries.
PW1 has given a very consistent statement and has reproduced the words of the deceased clearly and truthfully.
Nothing has been brought out in the cross examination to discredit his testimony at all.
He had at the earliest point of time disclosed as to what the deceased had told to him.
The discrepancy pointed out by learned counsel for the appellants as to whether the dying declaration was made to him by his sister when she was lying on the cot in the verandah, as stated in FIR Ex.P4, or while she was lying on the floor of the kitchen, is of an insignificant nature and could be either out of confusion or the gap of time between the making of the two statements.
Moreover, PW1 was not at all cross examined on the alleged discrepancy when he gave evidence in Court.
No explanation whatsoever was sought from him about the so called discrepancy.
PW1, the brother of the deceased appears to us to be a truthful witness and his testimony has impressed us.
He did not implicate the father of the appellant and gave evidence only about what he was actually told by his sister.
From our appreciation of the evidence of PW1, we agree with the view expressed by the High Court that "considering the case from all perspectives we have no hesitation to hold that P.W.1 is a witness of truth worthy of acceptance and so he is wholly a reliable witness.
exhibit
P4 is a voluntary statement given by P.W.1 and it lends corroboration to the evidence of P.W.1.
" Coming now to the evidence of PWs2 and 3.
The substratum of their evidence with regard to the dying declaration is that while that they were 684 in the kitchen of their own house, taking tea, they heard the cry of a lady and rushed to the house of the deceased, being her close neighbors.
They saw the deceased engulfed in flames sprawled on the floor of the kitchen.
They also saw both the appellants as well as the father of appellant No. 1 coming out of the kitchen to the verandah.
The distance between the house of PWs2 and 3 from the house of appellant is only 2 yards.
After PW2 took a bontha from the father in law of the deceased, to the annoyance of appellant No. 2, with a view to extinguish the fire, the deceased, on enquiry by the witness as to what had happened told her that 'my mother in law poured kerosene on me and my husband set me on fire".
The deceased had not implicated her father in law, though he was also present there ' PW3, father of PW2, had assisted PW2 to extinguish the flames and it was he who broke the string of the petticoat of the deceased and threw it away.
In the process PW3 himself suffered burn injuries.
His injuries were examined by the Doctor and found to be caused by fire.
The Trial Court doubted the testimony of PW3 on the ground that he had made some improvement in his evidence in court when he stated that he had heard the deceased screaming and saying that she was "being killed".
He had not stated so in his statement recorded during the investigation.
This, in our opinion, is hardly an improvement of any consequence because both in his statement in court as well as the one recorded under Section 161 Cr.
PC he has deposed that it was on hearing the 'screams ' of the deceased that he and his daughter rushed to the house of the decased.
In any event the so called improvement was not sufficient to discard his testimony.
Despite searching cross examination of both these witnesses, nothing has been brought out in their cross examination to discredit them or doubt their veracity at all.
After carefully analysing their evidence, we find PWs 2 and 3 as witnesses worthy of credence and trustworthy.
From the evidence of PWs 1, 2 and 3, both the dying declarations are proved to have been made by the deceased.
They are the statements made by the deceased and relate to the circumstances leading to her death.
Both the dying declarations are consistent with each other and appear to have been made by the deceased voluntarily and in the natural course of events.
They have a ring of truth about them.
Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross examination, it is not credit worthy.
Under Section 32, when 685 a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person 's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence.
The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition.
A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement.
The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death.
A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim.
Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.
If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy.
The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.
Having read the evidence of PWs 1 3 with great care and attention, we are of the view that their testimony is based on intrinsic truth.
Both the dying declarations are consistent with each other in all material facts and particulars.
That the deceased was in a proper mental condition to make the dying declaration or that they were voluntary has neither been doubted by the defence in the course of cross examination of the witnesses nor even in the course of arguments both in the High Court and before us.
Both the dying declarations have passed the test of creditworthiness and they suffer from no infirmity whatsoever.
We have therefore no hesitation to hold that the prosecution has successfully established a very crucial piece of circumstantial evidence in the case that the deceased had voluntarily made the dying declarations implicating both the appellants and disclosing the manner in which she had been put on fire shortly before her death.
This circumstance, therefore, has been established by the prosecution beyond every reasonable 686 doubt by clear and cogent evidence.
3.Medical Evidence: The next circumstance relied upon by the prosecution is the medical evidence which has been provided by the testimony of Dr. Parameswaradas PW9.
He deposed that the deceased had died of 90% burns and that kerosene smell was emitting from the deadbody.
According to the report of the chemical examiner, no poison was found in the viscera.
The chemical examiner 's report, coupled with the other evidence on record belies the suggestion made by the defence during the cross examination of some witnesses that with a view to commit suicide, the deceased had drunk dettol and when she could not bear the pain on account of consumption of dettol, she herself poured kerosene oil on herself and set herself on fire.
Rightly, this defence case was not pursued before us with any amount of seriousness by the learned counsel for the appellants.
The medical evidence, therefore fully corroborates the prosecution case and lends support to the dying declaration and more particularly the manner in which the deceased had been set on fire.
Conduct of the appellant immediately and after the evidence: The conduct of the appellants, son and mother, both at the time when the deceased lay burning on the floor of the kitchen and afterwards till she succumbed to the burn injuries is the next circumstance relied upon by the prosecution to connect the appellants with the crime.
From the testimony of PWs 2, 3 and 4, who are the immediate neighbors of the appellant and the deceased, they had heard the cry of the deceased and rushed to her house.
PWs 2 and 3 found the deceased lying on the floor of the kitchen engulfed in flames while both the appellants and father in law of the deceased were coming out of the kitchen in the verandah.
None of the two appellants or the father in law made any attempt whatsoever to extinguish the fire and save the deceased.
The raised no alarm.
They stood there as if waiting for her death, rather than make any effort to save her.
Their conduct, thus, runs consistent with the hypothesis of their guilt and betrays that of an innocent persons.
In their statements under Section 313 of Cr. PC they did not deny their presence in the house at the time of the occurrence, but denied their involvement in the crime.
The normal human conduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and save the life of the person.
Though, the appellants were the closest relations 687 of the deceased, they did not do anything of the kind.
Let alone making any effort to extinguish the fire, according to PW2 when the father in law of the deceased, at her request, was giving her the bontha to extinguish the flames, appellant No. 2, the mother in law of the deceased, objected to the same.
This conduct speaks volumes about the extent of hatred which the mother in law exhibited towards her daughter in law.
They rendered no first aid to the deceased.
Their conduct at the time of the occurrence, therefore, clearly points towards their guilt and is inconsistent with their ingnocence the appellants did not even accompany the deceased to the hospital in the matador van.
Had the husband not been a party to the crime, one would have expected that he would be the first person to take steps to remove the deceased to the hospital and leave no stone unturned to save her life.
An innocent mother in law would have also done the same, even if she had no love or emotional feelings for her daughter in law.
Neither the husband nor the mother in law of the deceased took any steps to remove the deceased to the hospital, let alone accompany her to the hospital.
This conduct also is inconsistent with their innocence and consistent only with the hypothesis, as stated by the deceased in her dying declarations, that the mother in law had poured kerosene on her while her husband had lit fire and put her on flames.
Mr. Reddy, the learned senior counsel appearing for the appellants submitted that since the neighbors and other relations of the deceased had almost taken over the house and the person of the daughter in law, the appellants were afraid of being beaten and as such they rendered no aid to the deceased needs a notice only to be rejected.
No suggestion whatsoever on these lines was made to any of the witnesses and in any event such an explanation betrays common sense.
Since, the deceased had admittedly suffered burn injuries in the kitchen of her house, there was an obligation on the part of the appellants and the father in law of the deceased, who have admitted their presence in the house at the time of occurrence, to explain the circumstances leading to the deceased dying of 90% burn injuries.
None has been offered.
The theory of suicide was put up only as an argument of despair.
While discussing the motive and the dying declarations, we have come to the conclusion that the deceased died as a result of the designed move on the part of both the appellants to put an end to her life and she did not commit suicide as was sought to be suggested during cross examination by the defence to some witnesses.
The theory of suicide has no legs to stand upon.
The conduct of the appellants who did not try to extinguish the fire or 688 render any first aid to her, also totally betrays the theory of suicide and we agree with the High Court that the theory as set up by the appellants is highly unbelievable or acceptable.
The prosecution has, thus, successfully established that the conduct of both the appellants both at the time of the occurrence and immediately thereafter is consistent only with the hypothesis of the guilt of the appellants and inconsistent with their innoncence.
5) Absconding.
Prosecution has also relied upon the circumstances of the absconding of the appellants to prove its case.
A closer link with the conduct of the appellants both at the time of the occurrence and immediately thereafter is also the circumstance relating to their absconding.
Md. Badruddin PW15, the investigating officer, deposed that he had taken up the investigation of the case and having examined PWsl 4 had caused search to be made for the accused but they were not found in the village and despite search, they could not be traced.
Appellant No. 1 surrendered before the court on 10.11.1981 while appellant No. 2 surrundered in the court on 7.12.1981.
No explanation, worth the name, much less a satisfactory explanation has been furnished by the appellants about their absence from the village till they surrendered in the court in the face of such a gruesome 'tragedy '.
Indeed, absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but coupled with the other circumstances which we have discussed above, the absconding of the appellants assumes importance and significance.
The prosecution has successfully established this circumstance also to connect the appellants with the crime In view of the above discussion and our appraisal and analysis of the evidence on record, we have no hesitation to hold that the.prosecution has successfully established all the circumstances appearing in the, evidence against the appellants by clear, cogent and reliable evidence and the chain of the established circumstances is complete and has no gaps whatsoever and the same conclusively establishes that the appellants and appellants alone committed the crime of murdering the deceased on the fateful day in the manner suggested by the prosecution.
All the established circumstances are consistent only with the hypothesis that it was the appellants alone 689 who committed.the crime And the circumstances are inconsistent with any hypothesis other than their guilt.
It is most unfortunate that the husband of the deceased not only failed to perform his duties and obligations as husband to protect and take care of his wife as per the marriage vows and instead joined his mother in the most degrading and cold blooded murder of the young innocent bride.
Of late there has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides.
This growing cult of violence and exploitation of the young brides, though keeps on sending shock waves to the civilised society whenever it happens, continues unabated.
There is a constant erosion of the basic human values of tolerance and the spirit of "live and let live '.
Lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime.
It is more disturbing and sad that in most of such reported cases it is the woman who plays a pivotal role in this crime against the younger woman, as in this case, with the husband either acting as a mute spectator or even an active participant in the crime, in utter disregard of his matrimonial obligations.
In many cases, it has been noticed that the husband, even after marriage, continues to be 'Mamma 's baby and the umbilical cord appears not to have been cut even at that stage.
We are here tempted to recall the observations of R.N. Mishra, J. (as His Lordship then was) in State (Delhi Administration) vs Laxman & Ors.
Appeals 93 and 94 of 1984 decided on 23.9.1985, while dealing with a bride burning case.
It was observed: "Marriage, according to the community to which parties belong, is sacramental and is believed to have been ordained in heaven.
The religious rites performed at the marriage altar clearly indicate that the man accepts the woman as his better half by assuring her protection as guardian, ensuring food and necessaries of life as the provider, guaranteeing companionship as the mate and by resolving that the pleasures and sorrows in the pursuit of life shall be shared with her and Dharma shall be observed.
If this be the concept marriage, there would be no scope to look for worldly considerations, particularly dowry.
When a girl is transplanted from her natural setting into 690 an alien family, the care expected is bound to be more than in the case of a plant.
Plant has fife but the girl has a more developed one.
Human emotions are unknown to the plant life.
In the growing years in the natural setting the girl now a bride has formed her own habits, gathered her own impressions, developed her own aptitudes and got used to a way of life.
In the new setting some of these have to be accepted and some she has to surrender.
This process of adaptation is not and cannot be one sided.
Give and take, live and let live, are the ways of life and when the bride is received in the new family she must have a feeling of welcome and by the fond bonds of love and affection, grace and generosity, attachment and consideration that she may receive in the family of the husband, she will get into a new mould; the mould which would last for her life.
She has to get used to a new set of relationships one type with the husband, another with the parents in law, a different one with the other superiors and yet a different one with the younger ones in the family.
For this she would require loving guidance.
The elders in the family, including the mother in law, are expected to show her the way.
The husband has to stand as a mountain of support ready to protect her and espouse her cause where she is on the right and equally ready to cover her either by pulling her up or protecting her willingly taking the responsibility on to himself when she is At fault.
The process has to be a natural one and there has to be exhibition of cooperation and willingness from every side.
Otherwise how would the transplant succeed?" Awakening of the collective consciousness is the need of the day.
Change of heart and, attittide is what is needed.
If man were to regain his harmony with others and replace hatred, greed, selfishness and anger by mutual love, trust and understanding and if woman were to receive education and become economically independent, the possibility of this pernicious social evit dying a natural death may not remain a dream only.
The legislature, realising the gravity of the situation has amended the laws and provided for stringent punishments in such cases and even permitted the raising of presumptions against an accused in cases of unnatural deaths of 691 the brides within the first seven years of their marriage.
, The was enacted in 1961 and has been amended from time to time, but this piece of soicial legislation, keeping in view the growing menance of the social evil also does not appear to have served much purpose as dowry seekers are hardly brought to book and convictions recorded are rather few.
Laws are not enough to combat the evil.
A wider social movement of educating women of their rights, to conquer the menance, is what is needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and fall an easy prey to their exploitation.
The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished.
The courts are expected to be sensitive in cases involving crime against women.
The verdict of acquittal made by the Trial Court in this cast is an apt illustration of the lack of sensitivity on the part of the Trial Court.
It recorded the verdict of acquittal on mere surmises and conjectures and disregarded the evidence of the witnesses for wholly insufficient and insignificant reasons.
It ignored the vital factors of the case without even properly discussing the same.
The High Court was, therefore, perfectly justified in convicting the appellants for the offence of murder punishable under Section 302 readwith Section 34 IPC and sentencing each one of them to suffer imprisonment for life.
We uphold the conviction and sentence of the appellants for the offence under Section 302/34 IPC and dismiss their appeal.
The appellants were directed to be released on bail by this Court on 30.3.1989.
Their bail bonds are cancelled and they are directed to be taken in to custody to suffer the remaining period of their sentence.
V.P.R. Appeal dismissed.
|
The prosecution case was that on 23.8.1981 between 12 30 1.00 p.m., on hearing screams and cry of the deceased, aged about 18 years, P.W.2 alongwith her father PW3, and PW4 rushed to the house of the appellant They saw the father of appellant No. 1 (father in law of the deceased) alongwith the husband and mother in law of the deceased hurriedly com ing out of the kitchen while the deceased was lying on the floor engulfed in flames.
As the appellant No. 1, did not respond to the request of PW2 to give her something to extinguish the fire, PW2 requested the father of the appellant No. 1 to give a bed sheet or blanket while the father of the appellant No. 1 was passing on a bed sheet to PW2, the appellant No. 2 (mother in law of the deceased) objected.
In the meanwhile PW2 took the bed sheet from the father of the appellant No. 1 and tried to extinguish the fire.
The deceased asked PW2 for some water.
PW3 removed the burning petticoat from the body of the deceased to save her from further burning.
While doing so he also received some burn injuries.
PW2 poured water into the deceased 's mouth and enquired from her as to what had happened.
667 The deceased told PW2 that her mother in law had poured kerosene over her and her husband had set fire to her.
The deceased asked for more water, which was again given to her by PW2.
The deceased 's statement made to PW2 was overheard by PW3 PW5 and some others who also reached the spot on hearing her cries.
PW5 went away to inform the matenal uncle of the deceased with one Ramakrishna on his motor cycle.
There PW5 found PW1, the brother of the deceased and informed about the burning of the deceased and also what he had heard the deceased telling PW2.
PW1 reached the house of the appellant with Ramakrishna on his motor cycle.
He saw a number of persons including PWs 2 and 3 gathered there.
The deceased was lying on the floor and she had no clothes on her.
PWl noticed that she had received burn injuries from her breasts downwards to her legs.
On seeing her plight, PWl started crying and hitting his head against a piller.
When the deceased noticed PW1 had come, she asked PW2 to bring her brother inside.
PW2 went out and brought PWI to the kitchen.
The deceased took the palm of her brother, PWl into her own palms and told him to tell mother and father that her mother in law poured kerosene on her and her husband set her or fire.
She requested him that he should not fight, "anyhow she was dying." She also told PWl to take back the cash given to her and to divide it amongst her sisters in equal share and to get them married to nice persons.
The appellant No. 1, the husband of the deceased came inside the kitchen with folded hands and begged her for forgiveness saying that he would not repeat what he had done.
PWI got wild and caught hold of the neck of the appellant No. 1.
FIW2 and PW3 rushed towards them and released the appellant No. 1 from the hold of PW1.
They sent PWI to another uncle 's house and told the uncle to take care of PW1.
When PWI returned to the house of the deceased after one hour he saw that PW6, a local Doctor, was giving first aid to the deceased and she was lying on a cot in the verandah.
PW6 advised at about 3.30 p.m. to remove the deceased to the Government Hospital.
The deceased was brought to the hospital at about 5 p.m.
At about 5.30 p.m., PW9, a doctor examined the deceased and declared her dead.
PWl along with his uncle went to the Police Station, adjacent to the hospital and lodged the FIR.
A case under section 302 IPC was registered 668 and police investigation was started.
Both the appellants were not found in the village when search for them was made by the investigating officer.
The appellant No. 1 surrendered in the Court on 10.11.1981 while the appellant No. 2 surrendered in the Court on 7.12.1981.
The Trial Court held that there was no motive for the appellant to commit the crime; that the evidence of PWs 2 to 4 could not be relied upon; that PW1 had made improvements in his statements recorded at the trial and, therefore the oral dying declaration made to him could not be relied upon.
The Trial Court also held that there was unexplained delay in lodging report with the policy.
It acquitted the appellants, holding that the case was one of suicide and not of murder.
The State filed appeal in the High Court.
The High Court held that the chain of the established circumstances was complete and the circumstances were sufficient to establish that the appellants alone had committed the crime of murder of the deceased.
The High Court convicted both the appellants for the offence under section 302/34 IPC and sentenced each one of them to imprisonment for life.
Hence this appeal before this Court under section 2(a) of the .
The appellants contended that since the Trial Court had acquitted the appellants, the High Court was not justified in recording an order or conviction, as the findings recorded by the Trial Court could not be said to be perverse; that the dying declarations were not worthy of reliance and the motive was feeble and not established; that the surrendering of the appellants themselves in the court on 10.11.1981 and 7.12.1981 itself was enough to show that they had no guilty conscious and the prosecution was not justified in relying upon this conduct as an adverse conduct against the appellants; and that since all neighbors had become hostile, out of fear the appellants did not act either to put off the fire or remove the deceased to the hospital.
The respondent State submitted that the findings of the Trial Court were not only conjectural but also perverse and the evidence of the wit 669 nesses was disbelieved on mere surmises; that the Trial Court did,not properly discuss the two dying declarations made by the deceased and since the dying declarations have been proved by reliable evidence, these by themselves could form the basis of conviction of the appellants; that the High Court after a careful appraisal of the evidence had rightly set aside the judgment of the Trial Court which suffered from illegality as well as manifest error and perversity,, and that the prosecution had established the case against the appellants beyond every reasonable doubt and their appeal deserved to be dismissed.
Dismissing the appeal, this Court, HELD:1.01.
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and these circumstances must be conclusive in nature.
Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence.
The proved circumstances must be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence.
The courts have, therefore, the duty to carefully scrutinize the evidence and deal with each circumstance carefully and thereafter find whether the chain of the established circumstances is complete or not before passing an order of conviction.
[679 E F] 1.02.In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning.
The motive in this case is alleged to be the greed of dowry.
[679 H] 1.03.The evidence led by the prosecution to establish, the existence of motive is wholly reliable and is also consistent.
The prosecution has successfully established that the appellants had strong and compelling motive to commit the crime because of her parents not agreeing to get the land registered in the name of the first appellant and their insistence to have the land registered in the name of their own daughter instead.
The motive, has, been conclusively established by the prosecution.
[682 D] 1.04.Both the dying declarations are oral.
They have been made to friends and to the brother of the deceased respectively.
In view of the close relationship of the witnesses to whom the oral dying declarations were 670 made, it becomes necessary for the court to carefully scruitinize and appreciate the evidence of the witnesses to the dying declarations [683.
B] 1.05.PW1 is the brother of the deceased and therefore a very close relation, but mere relationship cannot be a ground to discard his testimony, if it is otherwise found to be reliable and trustworthy.
In the natural course of events, the deceased who was on the verge of her death would have conveyed to her near and dear ones the circumstances leading to her receiving the burn injuries.
PW1 has given a very consistent statement and has reproduced the words of the deceased clearly and truthfully.
Nothing has been brought out in the cross examination to discredit his testimony at all.
[683 C D] 1.6.Despite searching cross examination of both PW2 and PW3, nothing has been brought out in their cross examination to discredit them or doubt their veracity at all.
After carefully analysing their evidence, it is found that PWs 2 and 3 as witnesses worthy of credence and trustworthy.[684 F] 1.07.From the evidence of PWs 1,2 and 3, both the dying declarations are provedto have been made by the deceased.
They are the statements made by thedeceased and relate to the circumstances leading to her death.
Both the dying declarations are consistent with each other and appear to have been made by the deceased voluntarily and in the natural course of events.
They have a ring of truth about them.
[684 G] 1.08The medical evidence, fully corroborates the prosecution case and lendssupport to the dying declaration and more particularly the manner inwhich the deceased had been set on fire.[686 D] 1.09.The normal human conduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and.
save the life of the person.
Though, the appellants were the closest relations of the deceased, they did not do anything of the kind.
They rendered no first aid to the deceased.
Their conduct at the time of the occurrence, therefore, clearly points towards their guilt and is inconsistent with their innocence.
The appellants did not even accompany the deceased to the hospital in the matador van.
Had the husband not been a party to the crime, one would have expected that he would be the first person to take steps to remove the deceased to the hospital and leave no stone unturned 671 to save her life.
An innocent mother in law would have also done the same, even if she had no love or emotional feelings for her daughter in law.
Neither the husband nor the mother in law of the deceased took any steps to remove the deceased to the hospital let alone accompany her to the hospital.
This conduct also is inconsistent with their innocence and consistent only with the hypothesis, as stated by the deceased in her dying declarations, that the mother in law had poured kerosene on her while her husband had lit fire and put her on flames.
[686 H, 687 A D] 1.10.The prosecution has, thus, successfully established that the conduct ofboth the appellants both at the time of the occurrence and immediatelythereafter is consistent only with the hypothesis of the guilt of the appellants and inconsistent with their innocence.
[688 B] 1.11.Absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in a criminal case and arrested by the police, but coupled with the other circumstances, the absconding of the appellants assumes Importance and significance.
The prosecution has successfully established this circumstance also to connect the appellants with the crime.
[688 E F] 1.12.The prosecution has successfully established all the circumstances appearing in the evidence against the appellants by clear, cogent and reliable evidence and the chain of the established circumstances is complete and has no gaps whatsoever and the same conclusively establishes that the appellants and appellants alone committed the crime of murdering the deceased on the fateful day in the manner suggested by the prosecution.
All the established circumstances are consistent only with the hypothesis that it was the appellants alone who committed the crime and the circumstances are inconsistent with any hypothesis other than their guilt.
[688 G H, 687 A] 2.01.Under Section 32, when a statement Is made by a person, as to the cause of death or as to any of the circumstances which result In his death, in cases in which the cause of that person 's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence.
The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a lit mental condition.
[684 H, 685 A B] 672 2.02.A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death.
A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim.
Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embelishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any coroboration.
If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy.
The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.
[685 C E] 2.03.Both the dying declarations are consistent with each other in all material facts and particulars.
That the deceased was in a proper mental condition to make the dying declaration or that they were voluntary has neither been doubted by the defence in the course of cross examination of the witnesses nor even in the course of arguments both in the High Court and before this Court.
Both the dying declarations have passed the test of credit worthiness and they suffer from no infirmity whatsoever.
[685 F G] 2.04.The prosecution has successfully established a very crucial piece of circumstantial evidence in the case that the deceased had voluntarily made the dying declarations implicating both, the appellants and disclosing the manner in which she had been put on fire shortly before her death.
This circumstance, therefore, has been established by the prosecution beyond every reasonable doubt by clear and cogent evidence.
[685 G H] 3.01.There has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides.
This growing cult of violence and exploitation of the young brides, though keeps on sending shock waves to the civilised society whenever it happens, continues unabated.
There is a constant erosion of the basic 673 human values of tolerance and the spirit of "live and let live '.
Lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime.
It is the woman who plays a pivotal role in this crime against the younger woman, as in this case, with the husband either acting as a mute spectator or even an active participant in the crime, in utter disregard of his matrimonial obligations.
[689 C D] 3.02.Awakening of the collective consciousness is the need of the day.
Change of heart and attitude is what is needed.
If man were to regain his harmony with others and replace hatred, greed, selfishness and anger by mutual love, trust and understanding and if woman were to receive education and become economically independent, the possibility of this pernicious social evil dying a natural death may not remain a dream only.
[690 D] 3.03.The legislature, realising the gravity of the situation has amended the laws and provided for stringent punishments in such case and even permitted the raising of presumptions against the accused in cases of unnatural deaths of the brides within the first seven years of their marriage.
[690 H] 3.04.The was enacted in 1961 and has been amended from time to time, but this piece of social legislation, keeping in view the growing menance of the social evil, also does not appear to have served much purpose as dowry seekers are hardly brought to book and convictions recorded are rather few.
[691 A] 3.05.Laws are not enough to combat the evil.
A wider social movement of educating women of their rights, to conquer the menace, is what is needed more particularly in rural areas where women are still largely uneducated and less aware of their rights and fall an easy prey to their exploitation.
[691 B] 3.06.The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacune in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished.
The courts are expected to be sensitive in cases involving crime against women.
[691 C] 674 State (Delhi Administration) vs Lavnan & Ors., Crl.
Appeals 93 and 94 of 1984 decided on 23.9.1985, referred to.
|
Crl.O.P.No.19916 of 2022
Dated :21.08.2022
Coram:
Crl.O.P.No.19916 of 2022
Sathish ... Petitioner
Vs
The State rep.by
The Inspector of Police,
Kanchi Taluk Police Station,
Kancheepuram District.
Crime No.560 of 2022 ... Respondent
Prayer: Criminal Original Petition is filed under Section 439 of Cr.P.C.,
praying to enlarge the petitioner on bail in connection with the case in
Crime No.560 of 2022 on the file of the respondent.
For Petitioner: Mr.D.R.Arun Kumar
For Respondent: Mr.N.S.Suganthan
Government Advocate (Crl.Side)
The petitioner herein is an accused in a case registered by the
respondent police in Crime No.560 of 2022 for an offence under Section
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19916 of 2022
399 of I.P.C. He was remanded to judicial custody on 06.08.2022.
2. The present petition is filed seeking bail on the ground that
his father died on 18.08.2022 and he being the only son, he may be granted
bail to perform his last rites and rituals of his father, which is scheduled to
be done on 20.08.2022.
3. Being a holiday, the learned counsel for the petitioner has
moved before the Hon'ble Chief Justice to hear the matter urgently.
Accordingly, the matter is heard today as a special sitting on a public
holiday.
4. The learned Government Advocate (Crl.Side) for the State
took notice and on instructions submitted that the petitioner is having two
previous cases under the NDPS Act and there is threat to his life by the rival
gang. Further, he also submitted that the last rites of the petitioner's father
was performed yesterday (20.08.2022), therefore, on merits the petitioner is
not entitled for bail.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19916 of 2022
5. Considering the submissions, this Court is of the view that
interim bail for 3 days from today on own bond shall be granted for the
petitioner with police escort to visit his village and complete the post rituals.
He shall report and surrender to the Prison Authorities on 24.08.2022 at
10.30 a.m.
6. Post the bail petition before the regular Court on 25.08.2022.
21.08.2022
Note: Issue order
copy on 21.08.2022
Copy t o:
1.The Judicial Magistrate No.II,
Kancheepuram.
2.The Superintendent of Police,
Kancheepuram District.
3.The Superintendent,
Sub-Jail, Kancheepuram.(by mail)
4.The Inspector of Police,
Kanchi Taluk Police Station,
Kancheepuram District.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.19916 of 2022
rpl
5.The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.19916 of 2022
21.08.2022
https://www.mhc.tn.gov.in/judis
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The Madras High Court held a special sitting on Sunday and granted interim bail to an accused person for performing the last rites and rituals of his father who passed away on August 18 [Sathish v. State].
Single-judge Justice G Jayachandran, after hearing the parties, granted interim bail for three days to the petitioner on his own bond.
"Considering the submissions, this Court is of the view that interim bail for 3 days from today on own bond shall be granted for the petitioner with police escort to visit his village and complete the post rituals. He shall report and surrender to the prison authorities on August 24, 2022 at 10.30 a.m," the Court directed.
The hearing was held after the counsel for the petitioner Sathish, moved Chief Justice Munishwar Nath Bhandari to hear the matter urgently.
The Chief Justice agreed to list the matter and assigned the case to single-judge Justice Jayachandran.
The petitioner is accused of offence under Section 399 (making preparation to commit dacoity) of the Indian Penal Code and has been in judicial custody since August 6.
When the matter was taken up for hearing on Sunday, the Government Advocate (Crl.Side) for the State took notice and on instructions submitted that the petitioner is having two previous cases under the NDPS Act and there is threat to his life by the rival gang.
Further, he also submitted that the last rites of the petitioner's father was performed on August 20 and, therefore, the petitioner is not entitled to bail on merits as well.
The Court, however, deemed it fit to grant interim bai.
The bench posted the bail plea before the regular Court on August 25.
The petitioner was represented by advocate DR Arun Kumar while the State was represented by NS Suganthan.
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N: Criminal Appeal No . 579 of 1986 From the Judgment and order dated 15.4.1986 of the Bombay High Court in Crl.
R. Appln.
No. 160 of 1985.
Rakesh Upadhyay, M.M. Kashyap and N.A. Siddiqui for the Appellants.
V.N. Ganpule, S.K. Agnihotri and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The appellant No. 1 Bakulabai filed an application under section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) before the Judicial Magistrate, Degloor, alleging that she was lawfully married to the respondent No. 1 Ganga Ram and that the appellant No. 2 Maroti was born out of this wedlock.
She claimed maintenance both for herself and for her son.
Ganga Ram denied the marriage as well as the paternity of the appellant No. 2.
He also averred that he was already married twice before the wedding 790 pleaded by Bakulabai and that both his wives were living.
The Judicial Magistrate accepted Bakulabai 's case and granted maintenance at the rate of Rs. 100 per month in her favour and additional Rs.50 per month for the minor boy.
Ganga Ram moved the Sessions Judge in revision.
Bakulabai also filed a revision application for enhancement of the rate of maintenance.
The two applications were registered respectively as Criminal Revision No. 83 of 1984 and Criminal Revision No. 110 of 1984, and were heard together.
The Sessions Judge accepted the defence case, reversed the findings of the Judicial Magistrate and dismissed the application for maintenance.
Revision case No. 83 of 1984 was thus allowed and the wife 's application was dismissed.
Bakulabai challenged the order before the Bombay High Court by a revision application.
By the impugned Judgment the High Court rejected the same holding that since it was the second revision application by the wife it was not maintainable, being barred by the provisions of section 397(3) of the Code.
The Court further proceeded to examine the merits of the case and concurred with the view of the Sessions Judge.
The appellants have now come to this Court by special leave.
On the maintainability of the revision application before it, the High Court took an erroneous view.
The provisions of sub section (3) of section 397 relied upon, are in the following terms: "(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
" The main judgment of the Judicial Magistrate upholding the appellants ' claim for maintenance was in her favour and there was no question of her challenging the same.
Her challenge before the Sessions Judge was confined to the part of the order assessing the amount of maintenance, and this issue could not have been raised again by her.
Subject to this limitation she was, certainly entitled to invoke the revisional jurisdiction of the High Court.
The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court.
She could not, therefore, be said to be making a second attempt when she challenged this order before the High Court.
The fact that she had moved before the Sessions Judge against the quantum of maintenance 791 could not be used against her in respect of her right of revision against the Sessions Judge 's order.
Accordingly, the decision of the High Court on this question is set aside and it is held that the revision petition of the appellant before the High Court, except the prayer for enhancing the amount was maintainable.
Now, coming to the other aspect, the Judicial Magistrate on a consideration of the evidence led on behalf of the parties accepted the appellants ' case.
He held that Bakulabai and Ganga Ram had lived together in the same house as husband and wife for a considerable period, and the boy Maroti was born of this union.
On the question as to whether Ganga Ram was already married and his wife or wives were living on the date the marriage with the appellant Bakulabai is alleged, the Magistrate did not record a categorical finding.
According to the case of Ganga Ram, he was first married with Rajabai, and again with Kusumbai in 1969.
It was, therefore, argued on his behalf that as he had two living spouses in 1972, he could not have lawfully married a third time in view of the provisions of the .
The Judicial Magistrate rejected the plea by saying that the second marriage of the respondent with Kusumbai was on his own showing null and void as his first wife was then alive.
Dealing with the effect of the first marriage he held that it was not as fact proved.
Thus he got rid of the effect of both the marriages by adopting a queer logic.
If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground.
The finding of the Judicial Magistrate on the validity of the marriage of the appellant was, therefore, illegal.
We have by our judgment in Criminal Appeal No. 475 of 1983 (Smt.
Yamunabai vs Anantrao Shivram Adhav and another) delivered today held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming in force of the , is null and void and the woman is not entitled to maintenance under section 125 of the Code.
Coming to the facts of the present case, it appears that the respondent has satisfactorily proved his case about his earlier marriage with Kusumbai by production of good evidence including a certificate issued by the Arya Samaj in this regard.
It is not suggested that Rajabai was living when Kusumbai was married and was dead by the time the appellant 's marriage took place.
The position which emerges, therefore, is that either the respondent 's first marriage with Rajabai was subsisting so as to nullify his second marriage with Kusumbai, in which case the appellant 's marriage also was rendered null and void on that very ground; or if, on the other 792 hand, the respondent 's case of his marriage with Rajabai is disbelieved A the marriage of Kusumbai will have to be held to be legal and effective so as to lead to the same conclusion of the appellant 's marriage being void on either hypothesis the appellant 's claim is not covered by section 125 of the Code.
She cannot, therefore, be granted any relief in the present preceedings.
The decision to that effect of the High Court is, R therefore, confirmed.
The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence an should have been left undisturbed in revision.
No error of law appears to have been discovered in his judgment and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate.
(See Pathumma and another vs Mahammad; , Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and the appellant No. 2 Maroti was their child.
If, as a matter of fact, a marriage although ineffective in the eye of law, took place between the appellant No. 1 and the respondent No. 1, the status of the boy must be held to be of a legitimate son on account of section 16(1) of the , which reads as follows: "16(1).
Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
" Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of Clauses (b) and (c) of section 125(1) of the Code specifically referring to an illegitimate child.
We, therefore, hold that the order of the Judicial Magistrate allowing the maintenance to the appellant No. 2 was correctly passed.
The amount of Rs.50 per month was allowed as the mainte 793 nance of the child in 1984.
The revision application filed before the Sessions Judge was rejected.
A second application before the High Court was, therefore, not maintainable.
We will, therefore, assume that the decision assessing the amount of maintenance as Rs.50 per month in 1984 became final.
However, on account of change of circumstances, this amount can be revised after efflux of time.
During the last four years the value of money has gone down due to inflation.
The child has also grown in age.
In the circumstances, we direct the respondent Ganga Ram to pay the appellant No. 1 the maintenance amount for appellant No. 2 at the rate of Rs.150 per month with effect from February, 1988.
The arrears up to January, 1988, if not paid, should also be paid promptly.
The appeal is allowed in the terms mentioned above.
G.N. Appeal allowed.
G.N. Appeal allowed.
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% The appellant filed an application under Section 125 Cr.
P.C. before the Judicial Magistrate, claiming maintenance for herself and her son, alleging lawful marriage with the respondent, and that the son was born out of the wedlock.
Respondent, however, denied the marriage and paternity of her son.
He claimed that he was already married twice and both his wives were alive.
The Judicial Magistrate accepted the appellant 's case and granted maintenance at the rate of 100 per month in her favour and Rs.50 per month for her minor son.
The Judicial Magistrate held that appellant No. t and respondent lived together in the same house as husband and wife for a considerable period, and appellant No. 2 was born out of this union.
He did not record a categorical finding as to whether the respondent was already married and his wife or wives were alive on the date of his marriage with appellant No. t. A revision application was filed by the appellant for enhancement of the rate of maintenance.
The respondent also moved the Sessions Judge in revision.
The Sessions Judge reversed the findings of the judicial Magistrate.
The appellant challenged the order by way of a revision application before the Bombay High Court which rejected the same holding that since it was the second revision application, it was not maintainable, being barred by the provisions of section 397(3) Cr.
The High Court also examined the merits of the case and concurred with the view of the Sessions Judge.
This appeal is by Special Leave.
788 Allowing the appeal, this Court, ^ HELD: t.
The plea that respondent could not have lawfully married a third time in view of the provisions of the was rejected by the Judicial Magistrate by saying that even according to the respondent, his second marriage was null and void as his first wife was then alive.
As regards the first marriage he held that it was not as a fact proved.
He got rid of the effect of both the marriages by adopting a queer logic.
If the story of the first marriage was to be rejected, the second marriage could not have been held to be void on that ground.
It appears that the respondent has satisfactorily provide his case about his earlier marriage by production of good evidence.
Either the respondent 's first marriage was subsisting so as to nullify his second marriage, in which case the appellant 's marriage also was rendered null and void on that ground; or if the respondent 's case of his first marriage is disbelieved the second marriage will have to be held to be legal and effective so as to lead to the same conclusion of the appellant 's marriage being void.
On either hypothesis the appellant 's claim is not covered by Section 125 Cr.
The appellant cannot, therefore, be granted any relief in the present proceedings.
[791D H; 792A B] Smt.
Yamunabhai v Anantrao Shivram Adhav and another; , followed.
Besides holding that the respondent had married the appellant, the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and that appellant No. 2 was their child.
If, as a matter of fact, a marriage, although ineffective in the eye of law, took place between the appellant and the respondent, the status of the boy must be held to be that of a legitimate son on account of Section 16(1) of the .
Even if the factum of marriage of his mother is ignored, he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of clauses (b) and (c) of Section 125(t) Cr.
P.C. specifically referring to an illegitimate child.
The order of the Judicial Magistrate allowing the maintenance to appellant No. 2 was correctly passed.
But the amount of Rs.50 per month was allowed as the maintenance of the child four years back.
In view of the fact that money value has gone down due to inflation and the child has grown in age, the rate of maintenance is increased to Rs.150.[791B C: 793B] 3.
Since the claim for maintenance was granted in favour of the 789 appellant, by the Judicial Magistrate, there was no question of her challenging the same.
Her challenge before the Sessions Judge was confined to that part of the order assessing the amount of maintenance.
and this issue could not have been raised again by her.
Subject to this limitation, she was certainly entitled to invoke the revisional jurisdiction of the High Court.
The decision on the merits of her claim went against her for the first time before the Sessions Judge, and this was the subject matter of her revision before the High Court.
She could not, therefore, be said to be making a second attempt when she challenged the order before the High Court.
The fact that she had moved the Sessions Court against the quantum of maintenance could not be used against her in respect of her right of revision against the Sessions Judge 's order.
[790F H;791A] 4.
No error of law appears to have been discovered in the judgment of the Magistrate and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate.
[792C] Pathumma vs Mohammad, ; , followed.
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Heard Mr.C.K.Chandrasekar, learned counsel appearing for the petitioners and
Mr.T.Chandrasekaran, learned Special Government Pleader appearing for the
respondents.
2. Learned counsel for the petitioners submitted that, the idol in the ancient
temple called Arulmighu Paramasivan Swamy Thirukkoil, Siviyarpalayam, Kangeyam
Taluk, Tiruppur District was stolen. Subsequently, that was retrieved by the Police and
thereafter it was produced before the concerned Court ie., the Special Court for dealing
with Idol Theft cases located at Kumbakonam. The idol has been handed over to the
temple authorities and it has been re-installed ie., Prathishtai has been again done in the
Temple, where Kumbabishekam also has been performed. The idol now is being
worshipped by large number of devotees including the village people, where the temple
is located.
3. At this juncture, now the subsequent Judicial Officer, who is dealing with the
Idol Theft cases at Kumbakonam seems to have issued a direction to produce the idol ie.,
the Moolavar itself for inspection and to complete the enquiry before the Court, for which
the date is fixed as 06.01.2022 ie., today. When an attempt was made by the Executive
Officer ie., the third respondent of the temple concerned to remove the idol for
production of the same before the Magistrate Court at Kumbakonam, it seems that there
has been a large scale objection from the devotees as well as the village people including
the petitioners.
4. Despite the said objection registered on behalf of the devotees and village
people including the petitioners, the third respondent has issued a communication dated
23.12.2021, where inter-alia he has stated the following.
“ghh;itapy; fhqk;. Ch; bghJkf;fs; fojk; ftdkhf
guprPypf;fg;gl;lJ/ ,JFwpj;J rl;l ty;Yeh;fsplk; fye;J
Mnyhrpf;fg;gl;lJ vd;w tpguk; j';fSf;F ,jd; K:yk;
bjuptpj;Jf;bfhs;sg;gLfpwJ/ Fk;gnfhzk;. khz;gk
jiyik ePjpj;Jiw eLtu; ePjpkd;wk; (rpiy jpUl;L jLg;g[
rpwg;g[ ePjpkd;wk;. Fk;gnfhzk;) cj;jut[ vd;gjhy; jpUf;nfhapy;
epu;thfk; mjid Vw;W bray;gl flikg;gl;Ls;sJ vd;gij
cWjpa[ld; bjuptpj;J. K:ytu; tpf;ufj;ij khz;g[kpF
fh';nfak; Fw;wtpay; ePjpkd;w eLtu; mtu;fs; fojj;jpy;
fz;Ls;s cj;jut[ kw;Wk; khz;g[kpF TLjy; jiyik
ePjpj;Jiw eLtu; ePjpkd;wk; (rpiy jpUl;L jLg;g[ rpwg;g[
ePjpkd;wk;. Fk;gnfhzk;) Mfpa ePjpkd;w';fs; gpwg;gpj;j
ntz;oa epiy Vw;gl;Ls;sjpid j';fSf;F ,jd; K:yk;
md;g[ld; bjuptpj;Jf;bfhs;sg;gLfpwJ/
khz;g[kpF TLjy; jiyik ePjpj;Jiw eLtu; ePjpkd;wj;jpy;
(rpiy jpUl;L jLg;g[ rpwg;g[ ePjpkd;wk;. Fk;gnfhzk;)
eilbgwt[s;s tprhuizapy; nkw;go K:ytu; tpf;uf';fis
cjtpfs; ey;FkhW Cu; bghJ kf;fshfpa j';fis md;g[ld;
nfl;Lf;bfhs;sg;gLfpwJ/ jtWk; gl;rj;jpy; rl;lg;goahd
eltof;iffis nkw;bfhz;L nkw;go. K:ytu; tpf;uf';fis
bfhz;L bry;Yk; epfH;tpid jtpu;ff ; ,ayhJ vd;gjid Cu;
bghJ kf;fshfpa j';fSf;F ,jd; K:yk; ,Wjpahf
bjuptpj;Jf;bfhs;sg;gLfpwJ/@
5. Challenging the said communication and also in order to prevent the proposed
action on the part of the third respondent Executive Officer to remove the idol from the
temple for the purpose of production of the same at the Court at Kumbakonam, these
petitioners, who are devotees as well as the village people, on their behalf also has
moved this writ petition with the aforesaid prayer.
6. Therefore, the learned counsel for the petitioners seeks the indulgence of this
Court to take suitable measures by giving orders ensuring that the idol which is the
Moolavar already been installed and everyday poojas are performed, shall not be
removed from the Temple, which will go against the Aagama Rules and also would go
against the sentiments of large number of devotees.
7. On the other hand, Mr.T.Chandrasekaran, learned Special Government Pleader
appearing for the respondents, on instructions would submit that, though it was proposed
to remove the idol and produce the same before the Court at Kumbakonam today, ie.,
06.01.2022, of course pursuant to the direction already issued by the said Court, the said
move could not be materialized today because of the stiff resistance came from the
village people as well as the devotees.
8. Learned Special Government Pleader appearing for the respondents would also
submit that, before removal of the idol, Balaalayam has to be performed and that, even
for performing the same, none of them have come forward to co-operate with the
Executive Officer and that is the reason that the Executive Officer could not remove the
idol and to comply with the order passed by the Magistrate to produce the idol on
9. I have considered the submissions made by the learned counsel for the parties
and have perused the materials placed on record.
10. The idol ie., Moolavar, which was originally stolen, has already been installed,
of course pursuant to the earlier direction issued by the Court concerned, and
Kumbabishekam has been performed, and thereafter regular poojas are being performed
and large number of devotees are visiting the temple to worship the God.
11. If it is a Urchavar ie., the idol that can be taken out for procession during
festival season, that can very well be taken to any place, of course by following the
Aagama Rules in this regard. However, in the case of Moolavar, if it is installed once
after performing Aagama Poojas pursuant to Samprokshanam or Kumbabishekam at the
Sanctum Sanctorum, then it cannot be removed instantly, even of course pursuant to the
order passed by the Court concerned.
12. In this context, this Court wants to balance the compliance of the order of the
Court concerned as well as the Aagama rituals and the sentiments of the village people
and devotees. Hence this Court is of the view that, if at all the learned Magistrate wants
to verify whether the idol is in good condition and it is being protected in the temple
concerned with performing the Poojas etc., only for the limited satisfaction of the learned
Magistrate, he can appoint an Advocate Commissioner, who can visit the temple along
with the Executive Officer and also the temple authorities, if any, with some
representatives of the village people or devotees, and after having visited the temple, the
Advocate Commissioner can prepare a detailed report and submit the same to the
concerned Court, based on which the further proceedings with regard to the conducting
of the trial or progression of the case can be undertaken by the learned Magistrate.
13. Therefore, for the said purpose, the idol ie., the Moolavar need not be removed
once and be produced before the Magistrate Court concerned, the reason being that, the
idol, according to the belief of the devotees, is the God. The God cannot be summoned
by the Court to be produced for a mere inspection or verification purposes, as if that it is a
material object of a criminal case. Therefore, this Court is of the firm view that, the
aforesaid measure would serve the purpose of the compliance of the order of the learned
Magistrate, without disturbing or wounding the feelings of large number of devotees of
the God concerned. Therefore, the aforesaid measure shall be undertaken by the learned
Magistrate and the idol ie., the Moolavar need not be removed for the said purpose. This
order shall be executed by all concerned including the learned Magistrate, to whom a copy
of this order shall be forwarded by the Registry. Post the matter after four weeks for
filing counter.
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Overturning a lower court's decision, the Madras High Court has observed that an idol is believed to be a God by the devotees cannot be summoned by the Court. While hearing a challenge to the order of the lower Court in an idol theft case, where the idol was called to be produced in the Court to enquire its condition, Justice R. Suresh Kumar observed that,"The God cannot be summoned by the...
Overturning a lower court's decision, the Madras High Court has observed that an idol is believed to be a God by the devotees cannot be summoned by the Court. While hearing a challenge to the order of the lower Court in an idol theft case, where the idol was called to be produced in the Court to enquire its condition, Justice R. Suresh Kumar observed that,
"The God cannot be summoned by the Court to be produced for a mere inspection or verification purposes, as if that it is a material object of a criminal case."
To serve the purpose of the impugned compliance order without disturbing or wounding the feelings of a large number of devotees, the Court called for the appointment of an Advocate Commissioner, who, along with others concerned, will prepare a detailed report on the condition of the idol.
Background
The petition contended that Moolavar, the idol of a deity, was stolen from the ancient temple Arulmighu Paramasivan Swamy Thirukkoil, located in the Tiruppur District. Subsequently, it was retrieved by the Police and produced before the Court dealing with the idol theft cases in the area. The idol was handed over to the temple authorities and re-installed. After that, it was worshiped by many devotees, including residents of the nearby areas.
However, in the pending idol theft case, the Judicial Officer issued directions to produce the idol for inspection. The Executive Officer's attempt to remove the idol for production before the Magistrate Court was met with objection from devotees and villagers.
Filed through Advocate Mr.C.K.Chandrasekar, the petition challenged the action of the Executive Officer and the direction of the Judicial Officer, the devotees, and villagers have moved to the Madras High Court.
Special Government Pleader Mr. T. Chandrasekaran argued that the idol could not be produced before the Kumbakonam Court today due to the stiff resistance from the devotees and village. He argued that before removing the idol, the ritual of Balaalayam was to be performed, but no one came forward to do the same and cooperate with the Executive Officer.
Findings
The High Court observed that the Moolavar idol is different from a Urchavar, which can be taken out for procession by following the Aagama Rules. However, Moolavar, once installed, cannot be removed instantly, even in pursuance of orders of a Court.
In an attempt to balance the compliance of the order with the Agama rules and sentiments of the devotees and villagers, the Court observed that if the Magistrate wants to verify the condition of the idol, he can appoint an Advocate Commissioner. The appointed Advocate Commissioner, the Executive Officer, and temple authorities can prepare a detailed report and submit it to the Court.
The High Court held that the idol could not be removed, as it is being regarded as God by the devotees, and the Court cannot summon God for inspection or verification purposes.
The matter is posted after four weeks.
Case Title: Writ Petition No. 130/22
Read The Order
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TION: Civil Appeal Nos.
2606/80, 6944/83, 3779/88 and 3780/88.
PG NO 562 From the Judgments and Orders dated 23.1.80, 26.4.83, 22.11.82 and 1.8.1984 of the Allahabad High Court in C.M. Writ No. 549/1979 C.M.W.P. No. 6942/81, C.M.W.P. No. 8383 of 1989 and C.M.W.P. No. 11203/1980 respectively.
S.N. Kacker, B.D. Aggarwal R.K. Jain, Dalip Tandon, Rajiv Dutta, K.K. Patel, K.K. Mohan, P.K. Jain, R.K. Khanna and Pankaj Kalra for the Appellants.
Manoj Swarup, Ms. Lalita Kohli, Anil Kumar Gupta, S.K. Mehta, S.M. Sarin, Dhruv Mehta, Aman Vachher and R. Jagannath Goulay for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The civil appeals as well as the special leave petitions raise a common question as to whether the provisions of the Uttar Pradesh Urban Buildings (Regulation Of Letting, Rent and Eviction) Act, Act No. 13 of 1972, (hereinafter referred to as 'the Act) are applicable to cantonments situated in the State of Uttar Pradesh.
Since the two civil appeals are already pending on the issue, we grant special leave in the special leave petitions as well and proceed to dispose of all the four matters by this common judgment.
The main judgment of the High Court under consideration is that in the case of Brij Sunder Kapoor vs Additional District Judge & Ors., (reported in 1980 All India Rent Cases 319) which answered the question in the affirmative.
The Allahabad High Court has reiterated the same view i its latter decision in Lekh Raj vs 4th Addl.
Judge, Meerut, AIR 1982 All.
265, which, we are told, is also under appeal to this Court.
It is sufficient to set out certain brief facts in the matter of Brij Sunder Kapoor, (C.A. 2606 of 1980) in order to appreciate the question of law that arises for consideration.
Jhansi is a cantonment in Uttar Pradesh.
Brij Sunder Kapoor is a tenant of premises No. 103, Sadar Bazar, Jhansi of which respondent No. 3 Bhagwan Das GUpta is the landlord.
In 1975, the landlord Bhagwan Das Gupta filed an application before the prescribed authority under section 21 of the Act praying that he needed the above premises for his personal occupation and that the same may be released to him.
The tenant contested the application.
The application was dismissed by the prescribed authority but allowed, on appeal, by the Additional District Judge.
The tenant preferred a writ petition which has been dismissed by a learned single Judge of the Allahabad High Court and hence the present appeal.
We are not concerned with the factual PG NO 563 aspects of the controversy between the parties.
The short point urged by learned counsel before us, which is common to all these appeals and which was also argued unsucessfully before the High Court, was that the Act did not apply to cantonments in Uttar Pradesh and that, therefore, the order of release made by the appellate authority under section 21 of the said Act was a nullity.
In order to appreciate the point urged by the learned counsel for the appellants, it is necessary to set out at some length the history of tenancy legislation in the State of Uttar Pradesh.
In this State, rent and eviction control legislation was initiated by the United Provinces (Temporary) Control of Rent & Eviction Ordinance promulgated on 1.10.1946.
This Ordinance was followed by U.P. Act III of 1947 which was made retrospective with effect from 1.10.1946.
Both the Act and the Ordinance applied to cantonment areas as well as other parts of the State.
Subsequently, the above Act was amended by U.P. (Amendment) Act 44 of 1948.
By this Act, cantonment areas were excluded from the purview of Act III of 1947.
This amendment was introduced perhaps as it was felt that the cantonment areas were to be governed by the Cantonments (House Accommodation) Act, 1923 and that the simultaneous application of Act III of 1947 to cantonment areas may create problems.
It appears that, subsequently, a number of representations were made by residents of cantonments for extending the provisions of Act III of 1947 to cantonment areas as well.
Perhaps because of such representations, U.P. Ordinance 5 of 1949 was promulgated on 26th September, 1949.
But this ordinance was allowed to lapse.
In the meantime the Allahabad High Court in Smt.
Ahmedi Begam vs District Magistrate, Agra, took the view that the State Legislature was incompetent to regulate accommodation lying in cantonments since that was a subject on which Parliament alone was competent to legislate, a view which was subsequently been approved by this court in Indu Bhushan Bose vs Rama Sundri Devi, [1978] I S.C.R. 443.
Thereupon, Parliament enacted the U.P. Cantonments (Control of Rent and Eviction) Act, 1952 (Act 10 of 1952).
Though this was an Act of Parliament, its operation was confined to cantonments in Uttar Pradesh.
In 1957, Parliament enacted the (Act XLVI of 1957).
Act 22 of 1972 gave it retrospective effect from 26.1.1950.
It provided for the extension, to cantonments in each State, of PG NO 564 laws relating to the control of rent and regulation of house accommodation prevalent in the particular State in respect of areas other than cantonments.
The Statement of Objects and Reasons of this Act specifically states that the Act became necessary because the power to make laws with respect to rent control and house accommodation in cantonment areas is exclusively vested in Parliament.
Section 3 of this Act originally read thus: 'The Central Government may by notification in the official gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force on the date of notification in the State in which the cantonment is situated.
The words "on the date of the notification" in the section were omitted by section 3 of Central Act 22 of 1972 with full retrospective effect.
The promulgation of this Act created a somewhat anomalous position so far as the State of U.P. was concerned.
As we have already mentioned, Act 10 of 1952 was already in force in the cantonment areas of the State and the issue of a notification by the Central Government purporting to apply Act III of ]947 also to the cantonments in U.P. would create complications.
If Act III of 1947 had to be extended to cantonment areas in U.P. in place of Act 10 of 1952, it was necessary that the provisions of Act 10 of 1952 should be repealed by a parliamentary enactment.
This was done by enacting the U.P. Cantonments (Control of Rent and Eviction) (Repeal) Act, 1971 (Act 68 of 1971).
The object of passing the Act, as given in its long title.
was to provide for the repeal of U.P. Act 10 of 1952.
Section 2 of this Act reads as under: "On and from the date on which the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 is extended by notification under section 3 of the to the cantonments in the State of Uttar Pradesh, the , Act l0 of 1952 shall stand repealed.
" It was only on April 3, 1972 that a notification was issued by the Central Government under section 3 of Act XLVI of 1957 extending the provisions of U.P. Act III of 1947 to the cantonments in the State of Uttar Pradesh.
But soon PG NO 565 after the above notification was issued U.P. Act III of 1947 itself was repealed and replaced by U.P. Act 13 of 1972, which came into force on 15th July, 1972.
This necessitated the issue of another notification under section 3 of Act XLVI of 1957 extending the provisions of Act 13 of 1972 to the cantonments in Uttar Pradesh.
This notification dated 1.9.1973, and gazetted on 29.9.1973, reads as follows: "In exercise of the powers conferred by section 3 of the , (Act 46 of 1957), and in supersession of the notification of the Government of India in the Ministry of Defence, No. S.R.O. 8, dated 3rd April, 1972, the Central Government hereby extends to all the cantonments in the State of Uttar Pradesh the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972 as in force on the date of this notification, in the State of Uttar Pradesh with the following modifications, namely, It was in view of the above notification that respondent No. 3 filed his application under section 21 of the said Act, which has given rise to the present proceedings.
Three questions were posed by Shri S.N. Kacker who opened arguments for the appellants (but unfortunately could not complete them due to his unexpected demise) and Shri Agarwal who followed him.
These were: (i) Does Act XLVI of 1957 apply to the State of U.P. at all in view of the fact that Act 10 of 1952, which was a detailed and elaborate enactment, contained special provisions applicable to cantonments in this State? (ii) Did not the power of the Central Government under section 3 of Act XLVI of 1957 get exhausted when the notification dated 3rd April, 1972 was issued, by which the provisions of Act III of 1947 were extended to cantonments in U.P.? If yes, was not the second notification dated 1.9.1973 purporting to extend the provisions of Act 13 of 1972 to cantonments in U.P. illegal and non est? iii) Does not section 3 of Act XLVI of 1957 suffer from the vice of excessive delegation of legislative powers and PG NO 566 is it not consequently void and inoperative? Apart from these principal questions, it was pointed out by Shri Tandon (appearing for the petitioner in SLP No. 6944 of 1983) that, in his case, the landlord was trying to resort to provisions of Act 13 of 1972 as amended by Act 28 of 1976.
It was submitted that, while Act 13 of 1972 as in force on 1.9.73 was extended to U.P. cantonments by the notification dated 1.9.1973, there was no further notification applying the provisions of the Acts amending the same to the cantonments till 17.2.1982.
It was therefore contended that in any event the amended provisions would not be applicable to the cantonment areas of U.P. So far as the first contention is concerned, we do not think there is any substance in it.
It is true that Act 1() of 1952 was a detailed statute, which was applicable to cantonments in the State of U.P.
It is also true that this enactment which was a Central enactment could not be rendered inoperative by the mere issue of a notification under section 3 of Act XLVI of 1957 and that it could be repealed or made inoperative only by an Act of Parliament.
But in this case there is a parliamentary legislation which terminates the applicability of Act 10 of 1952 in Uttar Pradesh Cantonments.
This is Act 68 of 1971.
Section 2 of this Act has already been reproduced.
It enacts that Act 10 of 1952 shall stand repealed in its application to the State of U.P. on and from the date on which Act III of 1947 was extended to the cantonment areas in the State by a notification under section 3 of Act XLVI of 1957.
As we have already mentioned, a notification was issued on 3.4.1972 under section 3 of Act XLVI of 1957, extending the provisions of Act III of 1947, with certain modifications set out therein, to cantonments in the State of Uttar Pradesh.
On and from 3rd April, 1972, therefore, Act 10 of 1952 ceased to apply to cantonments in the State of Uttar Pradesh.
In view of this, there was, at least on and after that date, no obstacle in the way of Act III of 1947 being operative in the cantonments of the State of U.P. as well.
Perhaps releasing this, a contention was put forward that Act XLVI of 1957, promulgated at a time when Act 10 of 1952 was in force in U.P., should be construed as an enactment applicable to all States in India other than the State of Uttar Pradesh.
It is not possible to accept this contention for two reasons.
In the first place the language of the Act does not justify any such restriction.
Secondly, since the Act has been given retrospective effect from 26.1.1950, it should be deemed to have been in force from that date.
On that date Act 10 of 1952 was not in force in the State of U.P. and so the terms of Act 46 of 1957 would be applicable to contonments in all States including U.P.
This takes away PG NO 567 the entire basis of the argument.
Again, there might have been some difficulty If, by a notification under section 3 of this Act, the Central Government had sought to apply Act III of 1947 to cantonments in the State of Uttar Pradesh, without there being a repeal of Act 10 of 1952.
But this possible repugnancy between two legislations operating in the State of Uttar Pradesh (one by virtue of the notification under section 3 of Act 46 of 1957 and the other by virtue of the provisions of Act 10 of 1952) has been obviated by the provisions of Act 68 of 1971.
These provisions have rendered Act 10 of 1952 inoperative as and from 3.4.1972 leaving the provisions of Act III of 1947 in the field only until it was replaced by Act 13 of 1972.
One more, somewhat different, argument which seems to have been addressed before the High Court on the basis of Act 68 of 1971 is that, on the issue of the notification dated 3.4.1972, the provisions of Act III of 1947, subject to the modifications mentioned in the notification, stood bodily lifted and incorporated in Act 68 of 1971 and that the repeal thereafter, of Act III of 1947 did not have any bearing in respect of cantonments in the State of Uttar Pradesh.
In other words, the argument is that Act Ill of 1947 continues, to be in operation in the cantonment areas even now.
The appellants obviously have in mind the principles of referential legislation by incorporation outlined in Mahindra & Mahindra vs Union, and other cases.
We, agree, however, with the High Court that section 2 of Act 68 of 1971 is not an instance of legislation by incorporation.
The only purpose of 1947 to cantonment areas was already there in Act XLVI of 1957.
But there was a hurdle in the issue of a notification under section 3 of that Act in that Act 10 of 1952 was already in force in such areas.
Act 68 of 1971 merely removed this obstacle and enacted that Act 10 of 1952 would stand repealed on the date of issue of the notification under section Once such a notification was issued, Act 68 of 1971 had served Its purpose out and had no further impact.
It did not have the further effect of incorporating within itself the provisions of the extended law.
If that had been the intention, section 2 of Act 68 of 1971, as pointed out by the High Court, would have read something like this: "On and from the date of commencement of this Act, the provisions of U.P. Act III of 1947 shall be applicable to be cantonments in the State of Uttar Pradesh and Act 10 of 1952 shall stand repealed.
" PG NO 568 It will be noticed that the above argument also overlooks the effect of later notifications under section 3 which have superseded the effect of the one dated 3.4.1972.
To get over this difficulty, it is argued that section 3 empowers the Government to issue a notification thereunder only once and that, once the notification dated 3.4.1972 was issued, the power got exhausted.
The further notifications dated 1.9.1973 and 17.2.1982 are, it is said, null and void.
The argument is based on a short passage in Lachmi Narain vs Union; , This case has a relevance on the third contention also to which we shall advert later.
So far as the aspect presently under discussion is concerned, its relevance arises in this way.
In that case, section 2 of the Part C States (Laws) Act, 1950 empowered the Central Government to extend, by notification in the official gazette, to any Part C State or part of it, any enactment in a Part A State.
The Central Government, in exercise of this power, issued a notification in 1951, extending the provisions of the Bengal Finance (Sales Tax) Act, l941 to the then Part C State of Delhi with certain modifications set out in section 6.
In 1957, the Central Government issued another notification, again in purported exercise of the powers conferred by section 2, by which an additional modification of section 6 of the Bengal Act was introduced in the 1951 notification as a result of which certain exemptions available to the petitioner were withdrawn at shorter notice than was permissible under the modifications notified in I951.
The notification of 1957 was held to be invalid and ineffective on several grounds, one of which was thus stated at page 801: "The power given by section 2 exhausts itself on extension of the enactment, it cannot be exercised be repeatedly or sub sequently to such extension.
It Can be exercised only once simultaneously with the extension of the enactment.
This is one dimension of the statutory limits which circumscribe the power.
" This was elaborated further by the learned Judge, Sarkaria, J. at p. 802, contrasting a clause of the kind under consideration with a "Removal of Difficulty Clause" which permits removal of difficulties felt in the operation of an Act from time to time.
The learned Judge observed: "Firstly, the power has not been exercised contemporaneously with the extension or for the purposes of the extension of the Bengal Act to Delhi.
The power given by section 2 of the Laws Act had exhausted itself when the Bengal Act was extended, with some alterations, to Delhi by PG NO 569 Notification dated 28.4.1951.
The impugned notification has been issued on 7.12.1957, more than six and a half years after the extension.
There is nothing in the opinion of this Court rendered in Re: Delhi Laws Act (supra) to support Mr. B. Sen 's contention that the power given by section 2 could be validly exercised within one year after the extension.
What appears in the opinion of Fazal Ali J. at page 850, is merely a quotation from the report of the Committee on Minister 's Powers which considered the propriety of the legislative practice of inserting a "Removal of Difficulty Clause" in Acts of British Parliament, empowering the executive to modify the Act itself so far as necessary for origining it into operation.
This device was adversely commented upon.
While some critics conceded that this device is "partly a draftsman 's insurance policy, in case he has overlooked something" (e.g. Sir Thomas Carr, page 44 of his book "concerning English Administrative Law"), others frowned upon it, and nicknamed it as "Henry VIII Clause" after the British Monarch who was a notorious personification of absolute despotism.
It was in this perspective that the Com mittee on Minister 's Powers examined this practice and recommended: " . . first, that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him upto the essential.
It can only be essential for the limited purpose of bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally requisite for that purpose; and the clause should always contain a maximum time limit of one year after which the power should lapse.
" It may be seen that the time limit of one year within which the power under a Henry VIII Clause should be exercisable, was only a recommendation, and is not an inherent attribute of such power.
In one sense, the power of extension cum modification given under section 2 of the Laws Act and the power of modification and adaptation conferred under PG NO 570 a usual 'Henry VIII Clause ' are kindred powers of fractional legislation, delegated by the legislature within narrow circumscribed limits.
But there is one significant difference between the two.
While the power under section 2 can be exercised only once when the Act is extended, that under a 'Henry VIII Clause ' can be invoked, if there is nothing to the contrary in the clause more than once, on the arising of a difficulty when the Act is operative.
That is to say, the power under such a clause can be exercised whenever a difficulty arises in the working of the Act after its enforcement, subject of course to the time limit, if any, for its exercise specified in the statute.
Thus, anything said in Re: Delhi Laws Act, (supra), in regard to the time limit for the exercise of power under a 'Henry VIII Clause ', does not hold good in the case of the power given by section 2 of the Laws Act.
Fazl Ali J., did not say anything indicating that the power in question can be exercised within one year of the extension.
On the contrary, the learned Judge expressed in unequivocal terms, at page 849: 'Once the Act became operative any defect in its provision cannot be removed until amending legislation is passed '.
" Basing himself on this passage, learned counsel contended that, once the notification dated 3rd April, 1972 was issued, the power under section 3 had got exhausted, and the section could not have been invoked by the Central Government once again to issue the notification of Ist September, 1973 extending Act 13 of 1972 to the cantonments of U.P.
It will be at once clear that there is a basic difference between the situation in Lachmi Narain (supra) and that in the present case.
In both cases, the power conferred is to extend the provisions of another Act with modifications considered necessary.
In Lachmi Narain this had been done by the 1951 notification.
The Bengal Finance (Sales Tax) Act, had been extended to Delhi with certain modifications.
The object of the 1957 notification was not to extend a Part A legislation to Delhi; it was to modify the terms of an extension notified earlier.
This was held to be impermissive in as much as all that the section permitted was an extension of the laws of a part A State to Delhi, which, ex facie, had already been done in 1951.
Here the nature of the legislation in question is totally different.
As we shall explain later, the whole purpose of PG NO 571 Act XLVI of 1947 was to ensure that the cantonment areas in a State have the same rent laws as the other areas thereof.
This when Act III of 1947 ceased to be in force in the rest of the State, no purpose would be served by its continuing in force in the cantonment areas alone.
So also when the provisions of the law in force in the State got amended, there should be a power to extend the amended law in the cantonment.
This was, obviously, the reason why Act 22 of 1972 amended section 3 of Act XLVI of 1957 to omit the words "on the date of the notification" retrospectively.
The provisions of section 3 of the Act XLVI of 1957 should, in the circumstances be construed so as to achieve this purpose and as enabling the Central Government to issue notifications from time to time and not as exhausted by a single invocation as in the case of the statute considered in the Delhi Laws Act case, (supra).
section 3 could, therefore, be invoked from time to time as occasion arise and the notifications dated 1.9.1973 and 17.2.1982 are valid and intra vires.
In such a situation, we think, the limitation suggested in the above decision will not operate.
On the other hand, the provisions of section 14 and section 21 of the General Clauses Act will apply and it will be open to the Government to extend another legislation or further legislations to cantonments in place of the one that had been repealed.
The above conclusion can also be supported on the ratio of decision in Gurcharan Singh and Others vs V.K. Kaushal, ; , also a case concerned with notifications under section 3 of Act XLVI of 1957.
In exercise of this power the Central Government issued on 2 1.11.1969 a notification extending the East Punjab Rent Restriction Act, 1949, to cantonments in the State of Punjab & Haryana Subsequently, after the amendment of section 3 of Act XLVI of 1957 by Act 22 of 1972, another notification was issued, on 24.1 1974, superseding the earlier notification and extending the East Punjab Act afresh to cantonments in the State of Punjab & Haryana with a modification of section 1(3) of the said Act with retrospective effect from 26.1 1950.
Upholding the validity of this notification and repelling an argument similar to the one now advanced before us, the Court observed: "Two points are raised on behalf of the appellants against that conclusion.
The first is that the power under section 3 of the having been exercised once, that is to say, by the notification dated November 21, 1969, the power of extension stood exhausted and could not be availed of again, and therefore the Notification dated January 24, 1974 was with our statutory sanction and invalid We are referred to PG NO 572 Lachmi Narain vs Union of India, ; That was a case where this Court held that a notification under Section 2 States (Laws) Act, 1950 having been issued in 1951 by the Central Government extending the Bengal Finance (Sales Tax) Act, 1941 to the State of Delhi, the power given by section 2 exhausted itself on the extension of the enactment and could not be exercised again to enable the issue of a fresh notification modifying the terms in which the Bengal Act was extended.
The case is clearly distinguishable.
The power under which the notification dated January 24, 1974 has been issued is a separate and distinct power from that under which the notification dated November 21, 1969 was made.
The power now exercised passed into the when it was amended in 1972.
In its nature and quality it is not identifiable with the power vested under the unamended Act.
A power conferred by statute is distinguished by the character and content of its essential components.
If one or more material components characterising the power cannot be identified with the material components of another, they are two different and distinct powers.
Although broadly the power envisaged in section 3 of the amended is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two.
The power under the unamended Act was a limited power.
It could operate prospectively only.
There was no choice in the matter.
After amendment, the Act provided for a power which could be exercised retrospectively.
The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made.
It was a power whose reach and cover extended far beyond what the power under the unamended Act could achieve.
We are of the view that in issuing the notification dated January 24, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from January 26, 1950, the Central Government exercised a power not available to it when it issued the notification dated November 21, 1969.
The contention that the issue of the notification of January 24, PG NO 573 1974 amounted to a further exercise of power conferred by section 3 of the , under which the earlier notification was issued is without force and must be rejected.
(underlining ours) This principle will also apply in the present case for, while the notification dated 3.4.1972 was issued in exercise of the power under the unamended section 3, the one dated 1.9.1973 was issued in exercise of the new power available after the amendment of Act 22 of 1972 which came into force on 2nd June, 1972, though there is a distinction between the two cases in that the latter notification, unlike the second notification in the other case, did not purport to give any retrospective effect to the extended legislation.
It should be mentioned here that notification dated 1.9.1973 extended to the cantonment areas only the provisions of Act XIII of 1972 as they stood on that date.
It was only on 17.2.1982 that a further notification was issued superseding the notification dated 1.9.1973 by which the provisions of Act XIII of 1972 as in force in the State of Uttar Pradesh were also extended to the cantonment areas.
The purpose of this notification obviously was that, since there had been amendments to Act XIII of 1972 in 1974 and again in i976, it was necessary and desirable That the amended provisions should also be extended to the cantonment areas.
The question raised above on behalf of the appellants regarding the validity of the notification dated 1.9.1973, has to be considered also in the context of this notification dated 17.12.1982.
For the reasons discussed above, we are of the opinion that the Central Government acted within its powers in issuing the subsequent notification dated 17.2.1982 as well.
This also is not a case like the one in Lachmi Narain vs Union, [ l976] 2 SCR 785, where the purpose of the second notification was to modify without any provocation the contents of the first notification issued for the purposes of extension.
Here the subsequent notification became necessary because subsequently the enactments had amended the provisions of the Act, which had been extended previously.
Moreover.
as the original Act l3 of 1972 has already been extended, the real purpose of this notification was to extend the provisions of Act 19 of 1974 and Act 28 of 1976 also to those areas.
In our view, the provisions of sections 14 and 21 of the , clearly apply for this reason as well as for the reason given in Gurcharan Singh 's case.
The validity of the notification dated 17.2.1982 is, therefore, upheld.
PG NO 574 Shri S.K. Mehta also contended that, even if the notification of l.9.1973 is left out of account, the notification of 3.4.
1972 was itself sufficient to achieve the present purpose.
He submitted that, since Act 13 of 1972 repealed and re enacted the provisions of Act Ill of 1947, all references in Act 28 of 1971 as well as in the notification dated 3.4.1972 to Act III of 1947 and its provisions should be construed as references to Act 13 of 1972 and its corresponding provisions as amended from time to time.
He relied on section 8 of the .
In the view we have taken above, we consider it unnecessary to deal with this contention or express any opinion thereon.
Now to turn to the principal contention in the case: the contention is that Act XLVI of 1957 does not itself enact any provisions in respect of house accommodation in the cantonment areas of U.P. Section 3 of Act XLVI of 1957 purports only to empower the Central Government to legislate for such areas.
It is true that the Central Government is not given carte blanche to do whatever it likes in this respect and that its power of notification is restricted to merely extending to cantonment areas the provisions of the corresponding laws in force in the other areas of the State of Uttar Pradesh.
But this itself amounts to excessive delegation of legislative power for three reasons: (a) On the date of the enactment of Act 46 of 1957, Parliament could not predicate what type of provisions will be in operation in the other areas of the States on some future date (s) on which the Central Government may issue notifications under section 3 in respect of various States.
section 3 thus authorises the introduction, on a Government notification, of, a law to the provisions of which Parliament has had no occasion to apply its mind at all; (b) There is a further vitiating element in that the Central Government under section 3 is empowered to direct not merely that the provisions of a State enactment, which may be in force in the State on the date of the such notification, should apply to the cantonment areas in the State as well.
The amendment to section 3 by Act 22 of 1972 goes one step further to make it clear that the Central Government can make a general notification that any State enactment in force in the State would apply to cantonments as well.
This means that, on a mere notification by the Central Government, not merely the provisions of an enactment which are in force on the date of the notification but also all future enactments on this topic that may come into force from time to time in the State would automatically apply to cantonment areas as well.
Thus, even PG NO 575 the notifying authority may not have had occasion to apply its mind at all to the provisions of the law that are to be made applicable to the cantonments.
Thus, for instance, the amendments in 1976 to Act 13 of 1972 can be sought to be made applicable though, on the date of issue of the notification under section 3, the Central Government could not at all have anticipated that there would be such an amendment; and (c) The Central Government has been empowered to apply such laws, with such restrictions and modifications, as it thinks fit.
Such an unrestricted power may well result in the notification modifying the State law in material respects and enacting a law of its own for cantonment areas, which is not permissible.
Learned Counsel submitted that there is not even a broad indication in the principal statute viz. Act XLVI of 1957 as to the nature of the provisions of the enactment which it would like to be applied to cantonments.
A mandate to the Government for a blind application, at its choice, of an enactment, existing or future, to cantonment areas within a State merely because such an enactment happens to be operative in respect of other areas in the State, it is said, amounts to a complete abdication of legislative Power by Parliament which is not permissible under our Constitution.
We may at once deal with limb (c) of the above contention, a direct answer to which is furnished by the decision in Lachmi Narain 's case; , already discussed.
Referring to the judgment in the Delhi Laws Act case; , and Rajnarain Singh 's case, on the scope of expressions such as "subject to such restrictions and modification as it thinks fit", Sarkaria, J. observed: "Bearing in mind the principles and the scope and meaning of the expression 'restrictions and modifications ' explained in Delhi Laws Act, let us now have a close look at section 2.
It will be clear that the primary power bestowed by the section on the Central Government, is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment already in force in a State.
The discretion conferred by the section to make 'restrictions and modification ' in the enactment sought to be extended, is not a separate and independent power.
It is an integral constituent of the powers of extension.
It cannot be exercised apart from the power of extension.
This is PG NO 576 indubitably clear from the preposition 'with ' which immediately precedes the phrase 'such restrictions and modifications ' and conjoins it to the principal clause of the section which gives the power of extension.
According to the Shorter Oxford Dictionary, one meaning of the word 'with ' (which accords here with the context), is 'part of the same whole '.
The power given by section 2 exhausts itself on extension of the enactment; it cannot be exercised repeatedly or sub sequently to such extension.
It can be exercised only once, simultaneously with the extension of the enactment.
This is one dimension of the statutory limits which circumscribe the power.
The second is that the power cannot be used for a purpose other than that of extension.
In the exercise of this power, only such 'restrictions and modifications ' can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union Territory.
Modifications ' which are not necessary for, or ancillary and subservient to the purpose of extension, are not permissible.
And, only such 'modifications ' can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying in into operation and effect.
In the context of the section, the words 'restrictions and modifications do not cover such alterations as involve a change in any essential feature.
of the enactment or the legislative policy built into it.
This is the third dimension of the limits that circumscribe the power.
It is true that the words 'such restrictions and modifications as it thinks fit ', if construed literally and in isolation, appear to give unfettered power of amending and modifying the enactment sought to be extended.
Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation.
Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power.
We must, therefore, confine the scope of the words 'restrictions and modifications ' to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment PG NO 577 sought to be extended, in tact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory.
" These observations make it clear that, though apparently wide in scope, the power of the Central Government for the extension of laws is a very limited one and cannot change the basic essential structure or the material provisions of the law sought to be extended to cantonment areas.
The principal decision on which counsel for the appellants placed reliance in support of the other limbs of his contention is the decision of this court in B. Shama Rao vs The Union Territory of Pondicherry, ; In that case the legislative assembly for the Union Territory of Pondicherry passed the Pondicherry General Sales Tax Act (10 of 1965) which was published on June 30, 1965.
Section 1(2) of the Act provided that it would come into force on such date as the Pondicherry Government may by notification appoint.
Section 2(1) of the Act provided that the Madras General Sales Tax Act, 1959, as in force in the State of Madras immediately before the commencement of the Pondicherry Act, shall be extended to Pondicherry subject to certain modifications.
The Pondicherry Government issued a notification under section 1(2) on Ist March, 1966, appointing April 1, 1966 as the date of commencement of the Act.
It so happened that, between 30th of June 1965 when the Pondicherry Act was published and the Ist April 1966, which was the notified date for its commencement, the Madras legislature had substantially amended the Madras Act.
It was the Madras Act, as amended upto Ist April 1966, which was brought into force in Pondicherry.
When the Act came into force the petitioner was called upon to register himself as a dealer under the Act.
He filed a writ petition challenging the validity of the Act.
After the petition was filed, the Pondicherry legislature passed an amendment Act whereby section 1(2) of the principal Act was amended to read that the principal Act shall come into force on the Ist April, 1966 and also contained a validating provision in respect of all proceedings taken in between.
The majority of the Constitution Bench, which heard the matter, held (Shah and Bhargava, JJ.
dissenting) that the Act of 1965 was void and still born and could not be revived even by the amendment Act passed in 1966.
The dissenting judges did not express any view on the contention th4t the principal Act was bad for excessive delegation of powers when it was enacted and published, as they were of the view that the subsequent PG NO 578 amendment Act passed by the Pondicherry Legislature had the effect of bringing into force in Pondicherry a valid Act under which the proceedings sought to be taken against the petitioner were fully justified.
We are here concerned with the majority view on the question of abdication of legislative functions.
After referring to certain earlier decisions of the court and in particular the decision in the case of Delhi Laws Act; , , Shelat, J., speaking for the Court observed as follows: "The question then is whether in extending the Madras Act in the manner and to the extent it did under sec.
2(1) of the principal Act the Pondicherry legislature abdicated its legislative power in favour of the Madras legislature.
It is manifest that the Assembly refused to perform its legislative function entrusted under the Act constituting it.
It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction.
In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act.
But when it not only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for it to predicate what the amended Act would be.
Such a case would be clearly one of non application of mind and one of refusal to discharge the function entrusted to it by the Instrument constituting it.
It is difficult to how such a case in not of abdication or effacement in favour of another legislature at least in regard to that particular matter.
But Mr. Setalvad contended that the validity of such legislation has been accepted in Delhi Laws Act 's case ; and particularly in the matter of heading No. 4 as summarised by Bose, J. in Raj Narayan Singh 's case ; In respect of that heading the majority conclusion no doubt was that authorisation in favour of the executive to adopt laws passed by another legislature or legislatures including future laws would not be invalid.
So far as that conclusion goes Mr. Setalvad is right.
But as PG NO 579 already stated, in arriving at that conclusion each learned Judge adopted a different reasoning.
Whereas Patanjali Sastri and Das JJ. accepted the contention that the plenary legislative power includes power of delegation and held that since such a power means that the legislature can make laws in the manner it liked if it delegates that power short of an abdication there can be no objection.
On the other hand, Fazl Ali J. upheld the laws on the ground that they contained a complete and precise policy and the legislation being thus conditional the question of excessive delegation did not arise.
Mukherjea J. held that abdication need not be total but can be partial and even in respect of a particular matter and if so the impugned legislation would be bad.
Bose J. expressed in frank language his displeasure at such legislation but accepted its validity on the ground of practice recognised ever since Burah 's ease 5 I.A. 178 and thought that that practice was accepted by the Constitution makers and incorporated in the concept of legislative function There was thus no unanimity as regards the principles upon which those laws were upheld.
All of them however appear to agree on one principle, viz., that where there is abdication or effacement the legislature concerned in truth and in fact acts contrary to the Instrument which constituted it and the statute in question would be void and still born.
In the present case it is clear that the Pondicherry legislature not only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry government would issue its notification it would be the amended Act which would apply.
The legislature at that stage could not anticipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry.
In point of fact the Madras Act was amended and by reason of section 2(1) read with section 1(2) of the Principal Act it was the amended Act which was brought into operation in Pondicherry.
The result was that the Pondicherry legislature accepted the amended Act though it was not and could not be aware what the provisions of the PG NO 580 amended Act would be.
There was in these circumstances a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said 'still born '.
It was however argued that the Act cannot be said to be still born as it contained certain provisions independent of the Madras Act, viz., the section which provides for the Appellate Tribunal and the said Schedule.
But the core of a taxing statute is in the charging section and the provisions levying such a tax and defining persons who are liable to pay such tax.
If that core disappears the remaining provisions have no efficacy.
In our view, Act l0 of 1965 was for the reasons aforesaid void and still born.
It may appear that there is a great similarity between1 the facts in Shama Rao (supra) and in the cases before us.
In each of them, the provisions of the enactment of one legislature enact that the provisions of an enactment of another legislature should apply within the territory subject to its jurisdiction, on the issue of a Government notification and the first legislature does not know the details of the provisions of the enactment of the second legislature that will become applicable in consequence of the Government notification.
We are not, however, able to accept the contention that the ratio of Shama Rao 's case will govern the situation in the present case also.
We say this for two reasons.
In the first place, the principles regarding delegation of legislative powers have been discussed in several decisions of this Court, the leading decision being the one in the case of Delhi Laws Act; , In the last mentioned authority separate judgments were delivered by the various learned judges of this Curt and, instead of referring to each of them individually, the best course would be to adopt the summary of Vivan Bose J. at page 298 in Raj Narain Singh 's case; , That case concerned a Bihar Act which permitcertain areas by notification .
The validity of this statutory provision was upheld but the notification issued was held to be ultra vires the provision.
In the course of the discussion, the learned Judge said: "The Court (in the Delhi Laws Act case) had before it the PG NO 581 following problems.
In each case, the Central Legislature had empowered an executive authority under its legislative control to apply, at its discretion, laws to an area which was also under the legislative sway of the Centre.
The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them.
The variations were as follows: (l) Where the executive authority was permitted, at its discretion, to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the legislative sway of the Centre to the new area: This was upheld by a majority of six to one.
(2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances: This was also upheld, but this time by a majority of five to two.
(3) where the executive authority was permitted to select future Central laws and apply them in a similar way: This was upheld by five to two.
(4) Where the authorisation was to select future Provincial laws and apply them as above.
This was also upheld by five to two.
(5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws, Central or Provincial, with or without modification.
This was held to be ultra vires by a majority of four to three.
(6) Where the authorisation was to apply existing laws, either Central or Provincial, with alterations and modifications; and PG NO 582 (7) Where the authorisation was to apply future laws under the same conditions: The views of the various members of the Bench were not as clear cut as in the first five cases, so it will be necessary to analyse what each Judge said.
" As to categories (6) and (7) mentioned above, Bose J., after referring to the opinion of each of the other learned Judges in the Delhi Laws Act case (supra), concluded with a reference to his own observations in the earlier decision: "Bose J. contented himself at page 1121 by saying that the delegation cannot extend to the "altering in essential particulars of laws which are already in force in the area in question.
" But he added at page 1124 "My answers are, however, subject to this qualification.
The power to 'restrict and modify ' does not import the power to make essential changes.
It is confined to alterations of a minor character such as are necessary to make an Act intended for one are applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area.
To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislate, all authorities are agreed, cannot be delegated by a Legislature include a change of policy.
" In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature.
Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above: it cannot include a change of policy" In other words, the delegation of a power to extend even future laws of another State will not be bad so long as they are laws which are already in force in the said area and so long as, in the process and under the guise of alteration and modification, an alteration of the essential character PG NO 583 of the law or a change of it in essential particulars is not permitted.
This interpretation of the Delhi Laws Act case (supra) was placed before the Bench which decided Shama Rao but, without dissenting from this approach, the learned Judges did not choose to apply it perhaps as they felt that the Pondicherry legislature, in the case before them, had completely abdicated its functions to the Madras Legislature.
There was also, it should be remembered, a substantial difference between the Madras Act to which the Pondicherry legislature had applied its mind and the Madras Act which actually became applicable by a deferment of the date of commencement.
Such a vast change, within a short time, could not at all have been in the contemplation of the Pondicherry legislature and this is perhaps what heavily weighed with the Judges.
This decision has been distinguished in the Gwalior Rayon 's case; , by Khanna J. and Mathew J. who delivered separate but concurring judgments.
Khanna J.observed: "It would appear from the above that the reason which prevailed with the majority in striking down the Pondicherry Act was the total surrender in the matter of sales tax legislation by the Pondicherry Legislature in favour of the Madras Legislature.
No such surrender is involved in the present case because of the Parliament having adopted in one particular respect the rate of local sales tax for the purpose of central sales tax.
Indeed, as mentioned earlier, the adoption of the local sales tax is in pursuance of a legislative policy induced by the desire to prevent evasion of the payment of central sales tax by discouraging inter State sales to unregistered dealers.
No such policy could be discerned in the Pondicherry Act which was struck down by this Court.
Another distinction, though not very material, is that in the Pondicherry case the provisions of the Madras Act along with the subsequent amendments were made applicable to an area which was within the Union Territory of Pondicherry and not in Madras State.
As against that, in the present case we find that the Parliament has adopted the rate of local sales tax for certain purposes of the Central Sales Tax Act only for the territory of the State for which the Legislature of that State had prescribed the rate of sales tax.
The central sales tax in respect of the territory of a State is ultimately assigned to that State under article 269 PG NO 584 of the Constitution and is imposed for the benefit of that State.
We would, therefore, hold that the appellants cannot derive much assistance from the above mentioned decision of this Court.
Mathew J. had this to say: "We think that the principle of the ruling in Shama Rao vs Pondicherry, (supra) must be confined to the facts of the case.
It is doubtful whether there is any general principle which precludes either Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation.
At any rate, there can be no such prohibition when the adoption is not of the entire corpus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose.
Secondly, we think that the facts of the present case are also distinguishable from those in Shama Rao, (supra).
Parliament was faced with the problems of enacting laws relating to house accommodation in cantonments in various States.
Earlier an attempt had been made to have a separate Act for U.P. Cantonments but it was then considered that it would be better to have a uniform policy of legislation in respect of all cantonments in India.
These cantonments were located in the heart of various cities in the different States and unlike the position that prevailed in early years, had ceased to be a separate and exclusive colony for army personnel.
It was, therefore, but natural for Parliament to decide, as a matter of policy.
that there should be no difference, in the matter of housing accommodation, between persons residing in cantonment areas of a State and those residing in other parts of the State and it is this policy that was given effect to by Act XLVI of 1957.
Having decided upon this policy, it was open to Parliament to do one of two things: pass a separate enactment in respect of the cantonment areas in each State or to merely extend the statutes prevalent in other parts of the respective States by a single enactment.
The second course was opted upon but there was one difficulty.
The enactments in force in the various States may need some modifications or changes before they could be fitted to the requirements of the cantonments.
We have already explained that the expression 'restrictions and modifications ' has a very limited connotation.
If this is borne in mind, it will be clear that the nature of modifications or restrictions PG NO 585 each statute would require can only be a matter of detail of drafting, of not much significance or importance, once the general policy was clear.
It is only this matter of detail that has been delegated to the Central Government to be attended to while passing appropriate notifications in each case.
As pointed out in Sita Ram Bishambher Dayal vs State of U.P., ; in the context of a tax legislation: "In a Cabinet form of Government, the Executive is expected to reflect the views of the Legislatures.
In fact in most matters it gives the lead to the Legislature.
However much one might deplore the "New Despotism" of the Executive, the very complexity of the modern society and the demand it makes on its Government have set in motion forces which have made it absolutely necessary for the Legislatures to entrust more and more powers to the Executive.
Textbook doctrines evolved in the Nineteenth Century have become out of date.
Present position as regards delegation of legislative power may not be ideal, but in the absence of any better alternative, there is no escape from it.
The Legislatures have neither the time, nor the required detailed information nor even the mobility to deal in detail with the innumerable problems arising time and again.
In certain matters they can only lay down the policy and guidelines in as clear a manner as possible.
" For the same reasons the scope of delegation in a measure like this should have a degree of flexibility to deal with minor variations and details of statutory adoption having regard to the situation differing from State to State.
The legislature hardly has the time to enter into this arena.
We, therefore, think that there was no infirmity in the delegation of power contained in section 3 of Act XLVI of 1957.
The further argument that, in any event, the 1976 amendments of Act 13 of 1972 will not get attracted has to be rejected on the same line of reasoning as has been indicated above.
Once it is the avowed policy of Parliament that cantonment areas in a State should be subject to the same tenancy legislation as the other areas therein, it follows that the decision involves also that future amendments in such State legislation should become effective in cantonment areas as well.
In some rare case where Parliament feels that such subsequent amendments need not apply to cantonment areas or should apply with more than the limited restrictions and modifications permitted by section 3, it is open to Parliament to legislate independently for such PG NO 586 cantonment areas.
But the decision that, in the main, such State legislation should apply is unexceptionable and cannot be said to constitute an abdication of its legislative function by Parliament.
But here the difficulty arises not so much because of the language of section 3 of Act XLVI of 1957 as on account of the language of the notification issued on Ist September, 1973.
The wording of this notification has been set out earlier.
It reads that, in supersession of the earlier notification of 3rd April, 1972, the Central Government extends to the cantonments in the State of Uttar Pradesh the "Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972) as in force on the date of this notifications, in the State of Uttar Pradesh with the following modifications .
" It must be pointed out in this connection that this notification was issued after Act XLVI of 1957 had been amended by Act 22 of 1972 and a power had been conferred on the Central Government to issue the notification without the restriction previously contained in section 3(1) that the statute proposed to be extended should be as in force on the date of the notification.
In other words depsite the enlarged power conferred by amending Act 22 of 1972 the notification is couched in the same way as the earlier notification of 3rd April, 1972 and purports to extend to the cantonments only the provisions of Act 13 of 1972 as in force on the date of the notification, that is, as on 1.9.1973.
The restricted language of the notification, therefore, makes applicable to cantonments only the provisions of Act 13 of 1972 as they stood on 1.9.
1973 and not its subsequent amendments.
Act 13, of 1972, as initially enacted, required an application under section 21 to be made before the Prescribed Authority. "Prescribed Authority ' was defined by section 3(e) to mean: "a Magistrate of the first class, having 3 years experience as such, duly authorised by the District Magistrate to exercise, perform and discharge all or any of the powers, functions and duties of the Prescribed Authority under this Act Act 19 of 1974 amended this definition w.e.f. 20.7 1974 to mean: "an officer not less than three years experience as a Munsif Magistrate of the first class or as Executive Magistrate authorised as aforesaid by the State Government .
PG NO 587 Still later on 5.7.1976, Act 28 of 1976 substituted a new clause (e) for previous one.
Under the new clause, the definition read: "Prescribed Authority means a Civil Judicial Officer or Judicial Magistrate authorised by the District Judge to exercise, perform and discharge all or any of the powers, functions and duties of the Prescribed Authority under this Act .
As explained in the judgment of the District Judge in the case under appeal, different types of officers were contemplated under the different definitions.
Initially the Prescribed Authority had to be a Magistrate of the first class under the old Code of Criminal Procedure and had also to be a nominee of the District Magistrate.
This had to change because first class Magistrates subordinate to the District Magistrate had ceased to exist after 31.3.1974.
Thereafter there were only Executive Magistrates subordinate to the District Magistrates and Judicial Magistrates of the first and second class under the District Judges.
Therefore, the amended section gave power to the State Government to authorise Munsifs, Judicial Magistrates or Executive Magistrates to discharge duties of a Prescribed Authority.
This must have meant a very heavy load on the State Government and hence a third change was effected w.e.f. 5.7.1976.
Thereafter, a nominee and subordinate of the District Judge was to be the Prescribed Authority.
In Civil Appeal No. 6944 of 1983, to which we have made reterence earlier, the landlord had made his application under section 21 of Act XIII of 1972 before the Prescribed Authority on 20.12.1975.
It was made before Shri Khem Karan, who had been appointed as the Prescribed Authority on 11.9.1975.
However, when the definition was amended by Act 28 of 1976, Shri S.C. Srivastava was appointed as the Prescribed Authority and the application of the landlord was transferred to him and he disposed it off by his order dated 27.9.1977.
It may be mentioned that both Shri Khem Karan and Shri Srivastava were Munsifs.
While Shri Khem Karan was a Prescribed Authority appointed by the State Government under section 3(e) as amended in 1974, Shri Srivastava was a Prescribed Authority authorised by the District Judge after 5th of July, 1976.
In this state of facts the argument urged on behalf of the tenant before the High Court, in addition to the principal argument that Act 13 of 1972 was not at all applicable to cantonment areas, was that Sri Srivastava, PG NO 588 appointed in pursuance of the amendment Act 28 of 1976, was not the Prescribed Authority authorised in accordance with the provisions of the Act as they stood on Ist September, 1973, and therefore had no jurisdiction to entertain the application made by the landlord under section 21 of the Act.
Though the dates and facts of other cases were also similar, this point was taken only in this case at the earlier stages.
This argument was accepted by the learned District Judge, who set aside the order of the Prescribed Authority on 2.2.1981.
The High Court, in the writ petition filed by the tenant, did not, however, accept this argument.
The learned single Judge who heard the writ petition was of the opinion that the District Judge was in error and that the argument put forward on behalf of the tenant was not tenable.
He observed: "Section 3 of Act 22 of 1972 inter alia provided that section 3 of the Principal Act, namely, Act 46 of 1957 shall be renumbered as sub section I thereof, and in sub section I as so renumbered the words "on the date of the notification" shall be, and shall be deemed always to have been omitted.
The effect of the words "on the date of the notification" being omitted from section 3 of Act 46 of 1957 in the manner contemplated by section 3 of Act 22 of 1972 was that the aforesaid words would be deemed not to have been in existence in section 3 of the Act 46 of 1957 from the very inception.
As such section 3 of Act 46 of 1957 did not confer on the Central Government the power to issue a notification under that section to extend to any cantonment an enactment relating to the control of rent and regulation of house accommodation which was inforce "on the date of the notification" in the State in which the cantonment is situated.
The use of the words "on the date of this notification" after the words "as in force" and before the words "in the State of Uttar Pradesh" in the notification dated Ist September, 1973, were, therefore, beyond the power conferred on the Central Government by section 3 of Act 46 of 1957 and will accordingly be deemed to be not in existence in the aforesaid notification and have to be ignored." After referring lo the decision of the Supreme Court In Bajya vs Smt.
Gopikabai and another; , , the learned Judge observed: "Section 3 of Act 46 of 1957 after its amendment by Act 22 of 1972 as aforesaid on the face of it comes in the PG NO 589 latter category referred to in the decision of Bajya (supra).
Consequently, the definition of the term "Prescribed Authority" as it was subsequently amended by U.P. Act 28 of 1976 is applicable for finding out as to who is the Prescribed Authority to entertain an application under section 21 of the Act even in regard to those buildings which are situated within a cantonment area.
The view taken to the contrary by the District Judge in the impugned order suffers from a manifest error of law and deserves to be quashed.
" He, therefore, held that the application preferred by the landlord had rightly been dealt with by Sri Srivastava and therefore remanded the matter to the learned District Judge for disposing of the appeal filed before him by the tenant on its merits.
It is against the order of the learned single Judge that C.A. No. 6944 of 1983 has been preferred.
We are unable to support the line of reasoning adopted by the learned Judge to uphold the order passed by Sri Srivastava.
We have already expressed our opinion that amended section 3 of Act XLVI of 1957, on a proper construction, validly empowers the Central Government, by notification, to extend the provisions of Act 13 of 1972 to the cantonments in the State of Uttar Pradesh, not only in the form in which it stood on the date of the said notification but also along with its subsequent amendments.
But, for the Central Government to have such power is one thing and for the Central Government to exercise such power is a totally different thing.
Despite the fact that Act 22 of 1972 with full retrospective effect omitted the words "as on the date of the notification" from section 3 of Act 46 of 1957, the terms of the actual notification on 1.9.1973 purported to extend only the provisions of Act 13 of 1972 as on the date of such notification.
We are unable to agree with the learned single Judge that this restricted notification was ultra vires or travelled beyond the provisions of section 3 of Act XLVI of 1957.
What happened was that the section in the statute conferred a larger power on the Central Government but the Central Government utilised the said power in a limited manner.
That was perfectly within the scope of the power delegated to it under section 3.
We cannot uphold the view that the words "as on the date of this notification" in the notification dated Ist September, 1973 can be ignored or be deemed to have been omitted merely because those words had been omitted from the section.
Nonetheless, we are of the opinion that the conclusion reached by the learned single Judge has to be upheld.
For PG NO 590 this, there are two reasons.
The first is the effect of section 3 of Act XLVI of 1957 as amended by Act 22 of 1972.
This Act amended section 3 in more respects than one.
Apart from omitting the words "as on the date of the notification" in section 3 and re numbering section 3 as 3(1), it added to section 3 certain other sub sections so that after the amendment, section 3 read as follows: 3.
Power to extend to cantonments laws relating to control of rents and regulation of house accommodation (1) The Central Government may, by notification in the Official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force in the State in which the cantonment is situated.
Provided that nothing contained in any enactment so extended shall apply to (a) any premises within the cantonment belonging to the Government; (b) any tenancy or other like relationship created by a grant from the Government in respect of premises within the cantonment taken on lease or requisitioned by the Government; or (2) The extension of any enactment under sub section (l) may be made from such earlier or future date as the Central Government may think fit: Provided that no such extension shall be made from a date earlier than (a) the commencement of such enactment, or (b) the establishment of the cantonment, or (c) the commencement of this Act, whichever is later: PG NO 591 (3) Where any enactment in force in any State relating to the control of rent and regulation of house accommodation is extended to a cantonment from a date earlier than the date on which such extension is made (hereafter referred to as the "earlier date"), such enactment, as in force on such earlier date, shall apply to such cantonment and, where any such enactment has been amended at any time after the earlier date but before the commencement of the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972, such enactment, as amended shall apply to the cantonment on and from the date on which the enactment by which such amendment was made came into force.
(4) Where, before the extension to a cantonment of any enactment relating to the control of rent and regulation of house accommodation therein (hereafter referred to as the "Rent Control Act"), (i) any decree or order for the regulation of for eviction from, any house accommodation in that cantonment, or (ii) any order in the proceedings for the execution of such decree or order, or (iii) any order relating to the control of rent or other incident of such house accommodation, was made by any court, tribunal or other authority in accordance with any law for the control of rent and regulation of house accommodation for the time being in force in the State in which such cantonment is situated, such decree or order shall, on and from the date on which the Rent Control Act is extended to that cantonment, be deemed to have been made under the corresponding provisions of the Rent Control Act, as extended to that cantonment, as if the said Rent Control Act, as so extended, were in force in that cantonment, on the date on which such decree or order was made.
It has been mentioned earlier that, on 17.2.1982, the Central (Government issued a further notification under section 3 of Act 46 of 1957 in supersession of its earlier notification dated Ist September, 1973.
By this notification PG NO 592 the Central Government extended to all cantonments in the State of Uttar Pradesh provisions of Act 13 of 1972 as in force in the State of Uttar Pradesh with certain modifications.
Considering that Act 13 of 1972 had already been extended, this really meant the extension of Act 19 of 1974 and Act 28 of 1976 to cantonment areas.
If, in the light of this fact, we read section 3(4) of Act XLVI of 1957 it will be seen that the order of Sri Srivastava has to be upheld.
The provisions of Act 13 of 1972 as amended by Act 28 of 1976 have been extended to the cantonments in the State of Uttar Pradesh only with effect from 17.2.1982.
But notwithstanding this, the order passed by Sri Srivastava on 27.9.1977 was passed by an authority in accordance with the law which was, for the time being (i.e. as on 27.9.77), in force in the State of Uttar Pradesh.
Under section 3(4), it should, therefore, be deemed to have been made under the corresponding provision of the Rent Control Act (as extended by that notification i.e. as amended in 1976) as if the said amended Rent Control Act as so extended were in force in that cantonment on the date on which such order was made.
That this will be the position is clear from the decision of this court in the case of Jai Singh Jairam Tyagi etc.
vs Mamanchand Ratilal Agarwal and Ors., ; It is not necessary to refer to the decision in detail.
It is sufficient to refer to the following passage from the judgment: "Shri V.M. Tarkunde, learned counsel for the appellant urged that sub section 4 had to be read in the context of sub sections 2 and 3 and that it was to be applied only to cases where a notification issued under sub section 1 was given retrospective effect under the provisions of sub section 2.
We see no justification for confining the applicability of sub section 4 to cases where notifications are issued with retrospective effect under sub section 2, sub section 4 in terms is not as confined.
It applies to all cases of decrees or orders made before the extension of a State Legislation to a cantonment area irrespective of the question whether such extension is retrospective or not.
The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force.
In our view sub section 4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a cantonment area, though such State Legislation could not in law have been applied to cantonment areas at the time of the PG NO 593 passing of the decrees or order.
We, therefore, hold that the decree obtained by the respondents is saved by the provisions of section 3, sub section 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957, as amended by Act 22 of 1972.
" From the above decision it will be seen that sub section 4 is independent of sub sections 2 and 3 and has effect whether or not the extension of laws made to the cantonment is made retrospective.
Even though the extension of Act 22 of 1972 as amended by Act 28 of 1976 is not retrospective and will be effective only from 5.7.1976, the effect of section 3(4) of Act XLVI of 1957 is that even orders passed prior to such extension should be deemed to have been passed under the extended amended Act.
Judged by this test, the order passed by Sri Srivastava who was the Prescribed Authority after the amendment of Act 28 of 1976 will be valid.
We should also like to refer in this connection to the judgment of this Court in S.P. Jain vs Krishna Mohan Gupta and others; , In that case the landlord moved an application under section 24 C of Act 13 of 1972.
Section 24 C formed part of Chapter IV A, which had been inserted in Act 13 of 1972 only by the amendment Act 28 of 1976.
The application of the landlord was allowed no 17.8.1981 by what was then called the "Delegated Authority".
Revision application to the District Judge failed.
Thereupon the tenant filed a writ petition before the High Court and contended that since Chapter IV A of the Act had been made applicable to cantonment areas only by the notification dated 17.2.1982 that is, after the filing of the application under section 24 C by the landlord section 24 B and 24 C of the U.P. Rent Act were inapplicable.
This contention was rejected by a Bench of this Court (which included one of us).
After pointing out that on the date on which the application was filed as well as on the date on which the order was made.
the cantonment area did not come within the ambit of the Act in question and that it was only by the date on which the revisional order was passed by the Additional District Judge that the building in question came within the purview of the Act by reason of the notification dated 17.9.1982, the court observed: In view of the ratio of Jaisingh Jairam Tyagi vs Mamanchand Ratilal Agarwal; , , it must be held that the provisions of Chapter IV A of the Act would be applicable.
The amending Act was passed for the express PG NO 594 purpose of saving decrees which had already been passed.
Therefore action under section 24 C of the Act in this case was justified.
The High Court did not decide this point because it was of the opinion that the second point which we shall note presently, the High Court was in favour of the respondent.
We are, however, of the opinion that the first point urged on behalf of the respondent cannot be accepted in view of the position in law as discussed hereinbefore.
It was submitted on behalf of the respondent that section 24 B gave substantive rights to the appellant and section 24 C was the procedure for enforcing those substantive rights.
Therefore, these were not only procedural rights.
Therefore, there was no question of retrospective operation to take away vested right.
We are, however, of the opinion that it would be an exercise in futility if the application is dismissed on this ground, it can be filed again and in view of the subsequent legislation as noted hereinbefore it was bound to succeed on this point.
In exercise of our discretionary power under Article 136 of the Constitution, it would not be proper to interfere in the facts and circumstances of the case on this ground.
In the premises in view of the ratio of the decision of this Court in Jaisingh case and reason mentioned hereinbefore this contention urged on behalf of the respondent must be rejected.
" In our opinion the ratio of this case squarely applies to the facts of the case in C.A. No. 6944 of 1983.
We are therefore unable to accept any of the contentions urged on behalf of the appellants.
The appeals are, therefore, dismissed but in the circumstances we make no order as to costs.
Y. Lal Appeals dismissed.
|
In this group of cases a common question of law that falls for Determination by the Court is whether the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, Act No. 13 of 1972 are applicable to cantonments situated in the State of U.P.
The High Court has answered this question in the affirmative.
Hence these appeals by tenants.
The main judgment under appeal is in the case of Brij, Sunder Kapoor vs Additional District Judge & Ors., [1980], All India Rent cases 3I9.
Brief facts of that case are therefore stated below showing how the said question arose.
It may be mentioned that the Allahabad High Court reiterated the same view later in the case of Lekh Raj vs 4th Addl.
Distt.
Judge, Meerut, AIR 1982 All 265.
Jhansi is a cantonment in Uttar Pradesh.
Brij Sunder Kapoor, the appellant is a tenant of Premises No. 103, Sadar Bazar, Jhansi of which Respondent No. 3 Bhagwan Das Gupta is the landlord.
In 1975, the landlord filed an application before the prescribed authority under Section 21 of the Act praying that he required the premises for his personal occupation and that the same be released to him.
The appellant tenant contested the application.
The application was dismissed by the prescribed authority but, on appeal by the landlord, it was allowed by the Additional District Judge.
The tenant thereupon filed a writ petition which was dismissed by a Single Judge of the High Court of Allahabad.
The appellant tenant has therefore filed this appeal.
In order to judge the legality of the point urged regarding applicability of the Act to cantonment area in PG NO 559 U.P., the Court first referred to the history of tenancy legislation in the State of U.P. where the Rent and Eviction Control Legislation was initiated by the United Provinces (Temporary) Control of Rent and Eviction Ordinance promulgated on 1.10.1946, followed by U.P. Act III of 1947 which was made retrospective w.e.f. 1.10.1946.
Both the Act and the Ordinance applied to cantonment area.
By a later Act U.P. (Amendment) Act 44 of 1948, cantonment areas were excluded from the purview of Act III of 1947 perhaps in view of Cantonments (House Accommodation) Act, 1923.
Consequent upon the receipt of various representations demanding the applicability of Act III of 1947 to cantonment area, the State promulgated Ordinance 5 of 1949, which, however, was allowed to lapse.
In the meantime the Allahabad High Court in Smt.
Ahmedi Begum vs Distt.
Magistrate, ruled that the State Legislature was in competent to regulate accommodation lying in cantonments since that was a subject in which Parliament alone was competent to legislate.
This view was later approved by this Court in Inder Bhushan Bose vs Rama Sundari Devi.
; Thereupon, Parliament enacted the U.P. Cantonments (Control of Rent and Eviction Act 1952) (Act 10 of 1952).
In 1957 Parliament enacted the cantonments (Extension of Rent Control Laws) Act, of 1972 gave it retrospective operation from 26.1.1950 which provided for extension to contonments of State law relating to control of rent and regulation of house accommodation.
As a consequence of this, Act III of 1947 became applicable to the cantonment area, even though Act 10 of 1952 was in force.
In order to avoid any complication U.P. Cantonments (Control of Rent and Eviction) Repeal Act 1971 was enacted.
A notification under Section 3 of Act 46 of 1957 extending Act III of 1947 to cantonments in U.P. was issued in 3.4.1972; but soon thereafter Act III of 1947 was repealed by U.P. Act 13 of 1972 which came into operation On 15.7.1972 which necessitated the issuance of another notification under Section 3 of Act 46 of 1957 extending the provisions of Act 13 of 1972.
Accordingly, a notification dated 1.9.1973 was issued.
It was in view of this notification that Respondent No. 3 filed his application under Section 21 of the Act, which has given rise to these proceedings.
Counsel for the appellants raised three principal contentions viz: (1) Whether Act 46 of 1957 applied at all to the State of U.P. in view of Act 10 of 1952 which contained special provisions applicable to cantonments in the State of U.P. (ii) Did not the power of the Central Government under Section 3 of Act 46 of 1957 get exhausted when the PG NO 560 notification dated 3rd April, 1972 was issued, by which provisions of Act III of 1947 were extended to cantonments in U.P.
If yes, was not the second notification dated 1.9.1973 illegal and non est on that account? (iii) Does not Section 3 of Act 46 of 1957 suffer from the vice of excessive delegation of legislative powers and is it not consequently void and inoperative? Dismissing the appeals, this Court, HELD: Once it is the avowed policy of Parliament that cantonment areas in a State should be subjected to the same tenancy legislation as the other areas therein, it follows that the decision involves also that future amendments in such State legislation should become effective in cantonment area as well.
In some rare cases where Parliament feels that such subsequent amendments need not apply to cantonment areas or should apply with more than the limited restrictions and modifications permitted by section 3, it is open to Parliament to legislate independently for such cantonment areas.
But the decision that in the main, such State legislation should apply is unexceptionable and cannot be said to constitute an abdication of its legislative function by Parliament.
[585G H; 586A] Amended section 3 of Act XLVI of 1957, on a proper construction, validly empowers the Central Government, by notification, to extend the provisions of Act 13 of 1972 to the cantonments in the State of Uttar Pradesh, not only in the form in which it stood on the date of the said notification but also along with its subsequent amendments.
[589D E] Act 10 of 1952 was a detailed statute, which was applicable to cantonments in the State of U.P. [566C] Parliamentary legislation Act 68 of 1971 terminates the applicability of Act 10 of 1952 in Uttar Pradesh cantonments.
[567B] It enacts that Act 10 of 1952 shall stand repealed in its application to the State of U.P. on and from the date on which Act III of 1947 was extended to the cantonment areas in the State by a notification under section 3 of Act XLVI of 1957.
[567E] A notification was issued on 3.4.1972 under section 3 of Act XLVI Of 1957, extending the provisions of Act III of 1947, with certain modification set out therein, to PG NO 561 cantonments in the State of Uttar Pradesh.
On and from 3rd April, 1972, therefore, Act 10 of 1952 ceased to apply to cantonments in the State of Uttar Pradesh.
[566E F] In view of this, there was, at least on and after that date, no obstacle in the way of Act III of 1947 being operative in the cantonments of the State of U.P. as well.
[566F] The provisions of Act 68 of 1971 have rendered Act 10 of 1952 inoperative as and from 3.4.1972 leaving the provisions of Act I11 of 1947 in the field only until it was replaced by Act 13 of 1972.
[567C] Notification dated 1.9.1973 extended to the cantonment areas only the provisions of Act XIII of 1972 as they stood in that date.
It was only 17.2.1982 that a further notification was issued superseding the notifi cation dated 1.9.1973 by which the provisions of Act XIII of 1972 as in force in the State of Uttar Pradesh were also extended to the cantonment areas.
The purpose of this notification obviously was that, since there had been amendments to Act XIII of 1972 in 1974 and again in 1976, it was necessary and desirable that the amended provisions should also be extended to the cantonment areas.
[573D E] Gurcharan Singh & Ors.
vs V. K. Kaushal, ; The delegation of a power to extend even future laws of another State will not be bad so long as they are laws which are already in force in the said areas and so long as, in the process and under the character of the law or a change of it in essential particulars is not permitted.
[582H;583A] Mahindra & Mahindra vs Union, ; ; Lachmi Narain vs Union, ; ; Delhi laws Act case; , ; Raj Narain Singh 's case [1955] I SCR 74; B. Shama Rao vs Union Territory of Pondicherry, ; ; Gwalior Rayon 's Case ; ; Sita Ram Bishambher Dayal vs State of U.P., ; ; Smt.
Bajya vs Smt.
Gopikabai & Another, ; ; Jai Singh Jairam Tyagi etc.
vs Mamanchand Ratilal Aggarwal & Ors., ; and S.P. Jain vs Krishna Menon Gupta
|
Civil Appeal No. 1203 of 1968.
From the order dated the 4 4 1967 of the Punjab and Haryana High Court in L.P.A. No. 104 of 1967.
O. P. Sharma, for the appellant.
H. K. Puri and M. C. Dhingra, for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate of fitness granted by the Punjab and Haryana High Court is directed against the judgment dated April 4, 1967 of a Division Bench of that Court passed in Letters Patent Appeal No. 104 of 1967 whereby the judgment and order dated December 19, 1966 of Narula, J. (as he then was) in Civil Writ Petition No 298 of 1966 was affirmed.
361 It appears that the respondent joined the Punjab Education A Department (Class II) Service by direct recruitment as senior lecturer in 1933.
He was promoted to Punjab Education Service (Class l) on October 1, 1949.
He was given the selection grade with effect from February 15, 1956 and in due course rose to the position of Director of Public Instruction cum Secretary to the Government of Punjab, Education Department.
He proceeded on leave preparatory to retirement on March 18, 1958, on attaining the age of super annuation.
In June; 1961, he received a copy of letter No. 5137 ED I 60/9269 dated May 2, 1961 addressed by the Secretary to Government, Punjab, Education Department to the Director of Public Instruction, Punjab, Chandigarh, conveying the sanction of the Governor of Punjab to the grant to him i.e. the respondent of superannuation pension and death cun1 retirement gratuity of Rs. 417.02 np.
per mensem and Rs. 17,030.25 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol.
II read with para 9(1) (a) of the New Pension Rules, 1951.
It was stated in the aforesaid letter that personal file of the respondent had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol.
II and Government were satisfied that his service record was not satisfactory and a cut of 10% had accordingly been made in the amount of pension and death cum retirement gratuity admissible to his.
On January, 28, 1962, the respondent submitted representations to the Chief Minister and Governor of Punjab against the aforesaid decision of the Government to apply 10% cut in his pension and death cum retirenment gratuity but the same proved abortive.
After the establishment of the Board set up to examine and remove the grievances in the matters of promotion and fixation of pension etc.
Of the Gazetted officers of the Government, the respondent addressed a representation to the said Board on September 14, 1964, against the.
aforesaid decision of the Government to apply a cut of l0% in his pension and gratuity.
On November l . 1965, the respondent received a copy of letter No. EDI 4(64) 65/22436 dated October 21, 1965, addressed by the Education Commissioner and Secretary to Government, Punjab, Education Department, to the Director of Public Instruction, Punjab, intimating that in supersession of the aforesaid letter dated May 2, 1961 of the Punjab Government, it had been decided to grant to the respondent a superannuation pension and death cum retirement gratuity of Rs. 440.18 np per mensem and Rs. 18,927.50 np in lump sum respectively under rules 5.27 and 6.13 of the Punjab Civil Service Rules, Vol.
II read with para 9(i) (a) of the New Pension Rules, 1951.
In para 3 of the letter, it was reiterated that a cut of 5% had been made in the pension admissible to the respondent as his service record which had been examined with reference to rule 6.4 of the Punjab Civil Service Rules, Vol.
II had not been satisfactory.
Aggrieved by this communication, the respondent filed in the Punjab and Haryana High Court at Chandigarh a petition under Articles 226 and 227 of the Constitution, being Civil Writ Petition No. 298 of 1966, challenging the aforesaid decision of the Punjab Government which was, as already stated, allowed by Narula, J. r(as he then was) by his judgment and order dated December 19, 1966, following the Full Bench Judgment of his Court dated October 362 25,1966,in Civil Writ Petition No. 504 of 1954 entitled Shri K. R. Erry, Retired.
Superintending Engineer, 45, Cecil Hotel, Simla vs
The State of Punjab(l).
Dissatisfied with this judgment and order, the appellants preferred a Letters Patent Appeal, being L. P. A. No. 104 of 1967 which did not meet with success.
Thereupon the appellants applied for a certificate under Article 133 of the Constitution which was granted to them.
This is how the matter is before us.
Although in the grounds of appeal, it has been urged by the appeIlants that the Full Bench decision of the High Court of Punjab and Haryana in K. R. Erry 's(l) case (supra) is not in accordance with law as superannuation pension is a bounty and is given only as an act of grace, that ground is no longer available to the appellants in view of the decision of this Court in Deokinandan Prasad vs The state of Bihar & Ors.
(2) where it was held that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under Article 31(1) of the Constitution and the State cannot withhold the same by a mere executive order.
It was further held in that case that the claim to pension was also property under Article 19(1) (f) of the Constitution and was not saved by clause (S) thereof.
The learned counsel appearing for the appellants has, however, made a feeble attempt to urge that no opportunity to show cause was required to be given to the respondent before passing the order imposing the cut in his superannuation pension and death cum retirement gratuity under clauses (a) and (b) of rule 6.4 of the Punjab Civil Service Rules (Pension Rules), as the order was an administrative order and the case did not fall within the purview of Article 311 (2) of the Constitution.
It has been further contended by learned counsel for the appellants that it was the judgment of this Court in M. Narasimachar vs The State of Mysore(8), and not the judgment in State of Punjab vs The K. R. Erry & Sobhag Rai Mehta(4) which governed the present case.
We regret we are unable to accede to these contentions.
Though the impugned order imposing cut in pension and gratuity is not one of reduction in rank falling within the purview of Article 311 (2) yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.
Reference r in this connection may be made with advantage to the decision of this Court in K. R. Erry & Sobhag Rai Mehta 's case (supra) where after an exhaustive review of the case law bearing on the point, it was observed at page 413 as follows: "Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi alteram partem applies.
See: Province of Bombay, vs Kusaldas section Advani & Ors. ; (725), and Board of High School & Intermediate Education, U.P. (1) I.L.R. (1917) Punjab & Haryana 278.
(2) [1971] Supp.
S.C.R. 634.
(3) [1960] I S.C.R. 981: A.I.R. 1960 S.C. 247.
(4) ; 363 ALLahabad vs Ghanshyam Das Gupta & ors.
(1962) Suppl.
A (3) S.C.R. 36.] With the profiteration of administrative decisions in the welfare state it is now further recognised by Courts both in England and in this country, (especially after the decision of House of Lords in Ridge vs Baldwin ; that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects, individual rights or interests, and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard.
See: State of orissa vs Dr. (Miss) Binapani Dei & Ors.
[1967) 2 S.C.R. 625 and In re H. K. (An lnfant) In the former case it was observed as follows: C "An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay.
The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon.
He is however under a duty to give the person against whom an enquiry is held an opportunity to set up`his version or drefence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice.
For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof.
The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences.
It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers.
Duty to act judicially would therefore arise from the very nature of the function intended to be performed.
It need not be shown to be super added.
If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power.
If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity.
That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.
" These observations were made with reference to an authority which could be described as characteristically administrative.
At page 630 it was observed: "It is true that the order is administrative in character, but even an administrative order which involves civil 364 consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidenve in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence." "This case and the English case in re H.K. (An Infant) were spcifically referred to with approval in a decision of the constitutional bench of this Court in A. K. Kraipak & Ors. etc.
vs Union of India & Ors.
[1970] l S.C.R. 457".
The decision of this Court in M. Narasimachar 's case (supra) on which strong reliance has been placed on behalf of the appellants is of no assistance to them as the point as to whether an opportunity to show cause was to be afforded to a Government servant before applying a cut in his pension in view of the principle of natural justice embodied in the well known maxim audi alteram partem was never urged or gone into in that case.
Furthemore as pointed out by Palekar, J. while speaking for the Court in K. R. Erry & Sobhag Rai Mehta 's case (supra) the question whether pension is a bounty or property did not arise in the former case.
The present case is, in our , opinion, fully covered by the judgment of this Court in K. R. Erry & Sobha Rai Mehta 's case (supra).
For the foregoing reasons we are of the view that the impugned judgments do not suffer from any illegality and were rightly rendered.
In the result the appeal fails and is hereby dismissed with costs.
P.B.R. Appeal dismissed.
|
Purporting to act under r. 6.4 of the Punjab Civil Service Rules.
the State imposed a cut of 5 per cent on the pension and death cum retirement gratuity of the respondent.
who was a retired Government servant, on the ground that his service record was not satisfactory.
The High Court allowed the respondent 's writ petition challenging the decision of the Government.
Dismissing the appeal of the State.
^ HELD: The ground that superannuation pension is a bounty and is given as an act of grace is not available to the appellant.
In Deoki Nandan Prasad vs The State of Bihar, [1971] Supp.
S.C.R. 634, it was held by this Court (1) that pension is not a bounty payable on the sweet will and pleasure of the Government and the right of a Government servant to receive it is property under article 31 ( 1 ) of the Constitution.
and so the State cannot withhold the same by a mere executive order: and (2) the claim to pension is property under article 19 (1) (f) of the Constitution and is not saved by cl.
(5) of article 19.
[362C D] (2) Though the impugned order imposing the cut in pension and gratuity is not one of reduction in rank falling within the purview of article 311(2), yet there can be no doubt that it adversely affected the respondent and such an order could not have been passed without giving him a reasonable opportunity of making his defence.
[362G] State of Punjab vs K. R. Erry & Sobhag Rai Mehta [19731 2 S.C.R. 405, applied.
(3) M. Narasimachar vs The State of Mysore [1960] 1 S.C.R. 981, is inapplicable to this case because the point as to whether an opportunity to show cause was to be afforded to a retired Government servant before applying the cut in his pension in view of the principle of natural justice of audi alteram partem was never urged or gone into in that case, nor was the question whether pension was a bounty or property arose in that case.
[364 D E]
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Civil Appellate Jurisdiction
Present:
The Hon’ble Justice Tapabrata Chakraborty
The Hon’ble Justice Partha Sarathi Chatterjee
FA 109 of 2018
IA No. CAN 2 of 2019 (Old No. CAN 2764 of 2019) [Disposed of]
Sri Sekhar Kumar Roy
versus
Smt. Lila Roy & Another
For the Appellant : Mr. Ayan Poddar,
Mr. Soham Dutta,
Mr. Kamran Alam.
For the Respondents : Mr. Sagnik Chatterjee,
Mr. Sayan Mukherjee.
Hearing is concluded on : 8th May, 2023.
Judgment On : 7th June, 2023.
Partha Sarathi Chatterjee, J.
1. Judgment and decree dated 22nd December, 2016 passed by the
learned Civil Judge, S enior Division, Sealdah in Title Suit no. 109 of 2011,
whereby the suit for declaration, partition and permanent injunction
instituted by the plaintiff/appellant herein was dismissed , have been called
in question in the present appeal.
2. One Sekhar Kumar Roy, t he plaintiff/appellan t (in short, Sekhar)
presented the plaint contending inter alia that his father, Sailen dra Kumar
Roy, since deceased ( in short, Sailendra) purchased the suit property by
one registered deed of sale in 1 969 in ‘benam’ of his w ife, Smt . Lila Roy,
defendant no. 1, since deceas ed (in short, Lila). Lila, who happened to be a
house -wife, was a mere name lender and she did not contribute any single
farthing towards consideration money since she had no independent income
at the relevant time of purchase of the suit property. Sailendra got the
building plan sanctioned in the name of Lila and by spending money from
his own fun d constructe d two -storied building thereon. He thereafter died
intestate on 29. 5.1999 leaving behind his widow , Lila, the plaintiff as his
son and one daughter, the defendant no. 2 , namely Sumita Saha (in short,
Sumita) , who according to Sectio n 8 of Hindu Succession Act have inherited
1/3rd share each of the suit property and Sekhar stayed in the suit property
till 11 .5.20 11 and since then , he started leaving apart. Sekhar thereafter
approached the defendants to effect partition of the suit property by met es
and bounds but the defendants refuted the claim of partition of Sekhar and
hence, the suit.
3. Records reveal that bo th the defendants defended the suit by filin g
separate written statements. Crux of the defence taken by Lila and
defendant no. 2 in their written statement is as follows:
i) Lila purchas ed the suit property from her ‘s tridhan’ property.
She asserted that she got the building plan sanctioned in her
own name and then constructed two -storied building on the suit
land from her own fund;
ii) She further claimed therein that according to legislative fiat
incorporated in Section 3 of Benami Transaction (Prohibition)
Act, 1988 (hereinafter referred to as the 1988 Act ), she became
the absolute owner of the suit property and same was duly
mutated in her name and deed of conveyance dated 20.1.197 0
had never been challenged either by Sekhar or by her husband
at any point of t ime and mere payment of requisi te
consideration money does not , ipso facto , prove benami
transac tion;
iii) She claimed that Section 8 of Hindu Succession Act, 1955 has
got no application in the present lis and she emphatically
denied that Sekhar has acquired 1 /3rd share in the suit
property;
iv) She lamented that Sekhar abandoned her in May, 2011 and
since his marriage, Sekhar subjected her to mental and physical
torture and she used to pass her days taking financial
assistance from her daughter, the defendan t no.2 and by
execut ing one will , which was registered on 4.9.2011, she
bequeathed the suit property in favour of Sumita;
4. Upon pleadings of t he respective parties, the learned C ourt below
framed as many as four issues . In corroboration of the facts depicted i n the
plaint, Sekhar adduced his oral testimony but he did not tender any
document whereas to len d support to their case projected in written
statement, both the defendants deposed and produced some documents
which were admitted in evidence as Ext. A to E.
5. Aggrieved by the judgment and decree whereby the suit was
dismissed, Sekhar preferred the present appeal contending, inter alia, that
the learned C ourt below ought to have considered that Lila happened to be
a mere house -wife and she had no independen t income and hence, she was
a mere name lender and Sailendra, his father purchased the land and
constructed a structure thereon for the benefit s of his family members and
learned C ourt below ought to have considered that Lila in her evidence
admitted that she was not engaged in any profession throughout her life and
Sailendra was the sole bread -earner of her family and defendants failed to
prove that Lila paid the consideration money to purchase the land and Lila
incurred expenses for construction of the b uilding standing thereon.
6. Mr. Poddar , learned Advocate representing Sekhar, the appellant
herein submits that Lila claimed that she purchased the suit property and
constructe d a building thereon from her ‘s tridhan’ properties but no
particulars of ‘stridhan’ properties have been disc losed and Lila did not
disclose wherefrom she acquired the ‘s tridhan’ properties and she did not
disclose the value of her ‘s tridhan’ properties. He contends that from the
evidence of Lila it is graphically clear that she was a mere house -wife and
she had no independent income of her own whereas Sailendra had a
business of soap and oil and that Sailendra was the only earning member of
the family at the relevant time of purchase of the suit property. Accor ding to
Mr. Poddar the learned C ourt below should have considered whether the
story that Lila purchased the suit property from her own fund is probable or
not. He asserts that the defendants failed to prove that suit prope rty was
purchased from Lila’s ‘stridhan’ properties and hence, C ourt should have
decreed the suit. He submits that cavil between the parties should be given
a clear burial by declaring share of Sekhar and by ordering partition of the
suit property. To bolster his submission, he placed reliance upon the
judgmen ts delivered in cases of Union of India –vs- Moksh Builders And
Financiers Ltd. & Ors. reported in (1977) 1 SCC 60 , Pulin Behari Addy –vs-
Debendra Nath Addy reported in (1981) 1 CHN (CAL) 531 , Dr. Prasanta
Kumar Das –vs- Susanta Kumar Das & Ors. reported in (2017) 1 CHN (CAL)
7. In response, Mr. Chatterjee, learned Advocate app earing for the
respondents submits that the suit property was purchased in 1970 and
Sailendra died in 1999. Sekh ar dragged Lila, his mother, aged about 85
years , in Court. Lila deposed in 2016 regarding the suit property which was
purchased almost 46 years back. Hence, it is not expected that Lila would
preserve all the documents and proofs relating to payment of consideration
money and expenses borne for construction of buil ding. He informed the
Court that Lila has gifted the suit property in favour of her daughter in 2015
by dint of registered deed of gift and thereafter Lila died in 2019.
8. Mr. Chatterjee further contends that Lila paid taxes to the
Corporation and drawi ng our attention to the evidence of the parties, he
contends that Sekhar himself admitted that h e did not look after her
mother . He submits that appellant has been making desperate attempt to
shift the burden upon the defendants but it is burden of the pla intiff to
prove that Sailendra paid the consideration money and incurred the
expenses for construction of the structure.
9. Mr. Chatterjee further submits that plaintiff has failed to prove that
Sailendra had a motive to create benami in the name of Lila a nd plaintiff did
not bring any evidence to prove that Sailendra had sufficient money to
finance Lila for purchasing the suit property and hence, the learned C ourt
below has rightly refused to decree the suit. He contends th at from the
evidence it is eviden t that after marriage, Lila came to possess jewellery and
valuable articles and from such ‘stridhan ’ articles, Lila purchased the suit
property and constructed the building. To strengthen his submission he
placed reliance upon a judgment delivered in case of Valliammal –vs-
Subramanian & Ors. reported in (2004)7 SCC 233 .
10. In reply, Mr. Poddar submits that question of onus has not been
prope rly appreciated by the learned C ourt below. According to him, when
both the parties have adduced their respective e vidence, question of burden
of proof loses its significance. Burden lies upon Lila to prove her source
wherefrom she collected consideration money and expenses for construction
of building since it is demonstrable from the evidence that she had no
independ ent income. He submits that Lila lost his father at her age of 2
years and she was brought up by her maternal uncle and hence, the story
that she came to possess jewellery and valuable articles before and at the
time of her marriage has no leg to stand on.
11. Crucial question which is to be answered in the present appeal is
whether the transaction i.e. the purchase of suit property under registered
deed of sale dated 20.01.1970 by Lila is benami transaction.
12. Benami Transaction (Prohibition) Act, 1988 d efines the
expression, ‘benami transaction’ and equipped the appropriate authority
with powers to acquire benami property. Provisions of three sections being
Section s 3, 5 & 8 of the 1988 Act , which was initially a 9 -section legislation,
came into force w ith effect from 5.9.1988 whereas the remaining provisions
thereof came into force from the date being 19.9.1988. Section 3 being a
prohibitory legislation cannot have retrospective operation but the Section
2(a) of the Act which is a pi ece of declaratory legislation can have its
application irrespective of its date or duration. So, definition of the
expression ‘benami transaction’ can be borrowed from Section 2(a) of the
1988 Act in respect of the transaction held prior to promulgation of the said
Act. As defined in Section 2(a) of the Act ‘benami transaction’ means any
transaction in which property is transferred to one person for a
consideration paid or provided by any other person. A transaction must,
therefore, be benami irrespective of its date or dura tion.
13. In India, two kinds of benami transactions ar e generally
recognized. Where a person buys a property with his own money but in the
name of another person without any intention to benefit such other person,
the transaction is called benami . In that case, the transferee holds the
property for the benefit of the person who has contributed the purchase
money, and he is the real owner. The second case which is loosely termed as
a benami transaction is a case where a person who is the owner of the
proper ty executes a conveyance in favour of another without the intention of
transferring the title to the property thereunder. In this case, the transferor
continues to be the real o wner. [ See, the judgment delivered in the cases of
Bhim Singh – vs- Kan Singh , reported in (1980) 3 SCC 72 and Pulin Behari
Addy (supra) ].
14. However, t here is a presumption in law that the person who
purchases the property is the owner of the same and such presumption can
be displaced only by pleading and successfully proving that the person
whose name appears in the document is not the real owner, but only a
benami and heavy burden lies on the person who pleads that recorded
owner is mere name -lender.
15. Now, coming to the case at hand, it can be argued that to hold
the subject t ransaction as benami transaction, it is to be proved by the
principle of preponderance of probability that although the suit property was
purchased in name of Lila but the consideration money was paid or provided
by her husband and not by Lila.
16. Indisp utably, subject deed of sale was executed and registered on
20.01.1970. Sekhar preferring the suit in 2011 claimed that Lila, transferee
was mere name -lender and Sekhar adduced his oral testimony only and he
did not produce any document whereas Lila depose d in 2016 and adduced
her oral accounts which found support from the evidence of DW -2 and Lila
had produced all the documents relating to suit property.
17. During course of hearing , both the appellant and the respondent s
advanced their arguments on the is sue relating to ‘burden of proof’ . So,
main question centred around the present appeal is whether it was Sekhar
who had to discharge the burden to prove that the subject sale transaction
was benami transaction or it was Lil a who was to prove that she purc hased
the suit property from own fund or ‘stridhan ’ properties detailing the source
of such fund and disclosing every details of payment of consideration
money.
18. The question relating to burden of proof has been set at rest in th e
judgment of Jaydayal P oddar ( Deceased) thr. Lrs. –vs. Mst. Bibi Hazra
reported in AIR 1974 SC 171 in which the Hon’ble Apex Court ruled as
follows:
“It is well settled that the burden of proving that a particular sale
is benami and the apparent purchaser is not the real owner , always
rests on the person asserting it to be so. This burden has to be strictly
discharged by adducing legal evidence of a definite character which
would either directly prove the fact or benami or establish
circumstances unerringly and reasonably raisi ng an inference of that
fact. The essence of a benami is the intention of the party or parties
concerned; and not unoften such intention is shrouded in a thick veil
which cannot be easily pierced through. But such difficulties do not
relieve the person ass erting the transaction to be benami of any part of
the serious onus that rests on him; nor justify the acceptance of mere
conjectures or surmises, as a substitute for proof. The reason is that a
deed is a solemn document prepared and executed after conside rable
deliberation, and the person expressly shown as the purchaser in the
deed, starts with the initial presumption in his favour that the apparent
state of affairs is the real state of affairs. Though the question, whether
a particular sale is benami or not, is largely one of fact, and for
determining this question, no absolute formulae or acid test, uniformly
applicable in all situations, can be laid down; yet in weighing the
probabilities and for gathering the relevant indicia, the courts are
usually gu ided by these circumstances: (1) the source from which the
purchase money came; (2) the nature and possession of the property,
after the purchase; (3) motive, if any, for giving the transaction a benami
colour; (4) the position of the parties and the relat ionship, if any,
between the claimant and the alleged benami dar; (5) the custody of the
title-deeds after the sale and (6) the conduct of the parties concerned in
dealing with the property after the sale.”
19. In the given case, Sekhar claimed that his mother , Lila was a mere
name -lender. He deposed that at the relevant time of sale, he was not
present and he could not say the actual amount of consideration money and
he admitted that he did not verify from attesting witness, identifier etc.
whether his f ather pai d the consideration money and he admitted that his
father never claimed himself to be the real owner of the suit pro perty and he
admitted that he did not have any document to show that his father paid the
consideration money.
20. From evidence of Lila, it appears that Lila admitted that she was a
home -maker throughout her life and she had no independent income of her
own and she asserted that she purchased the suit property from her
‘stridhan ’ properties. She claimed that she herself purchased the property
selling her gold ornaments . Admittedly, Lila testified that during his stay in
the suit property, Sekhar used to behave well with her.
21. Mr. Poddar tried to convince us that since both the parties have
led evidence, question of burden of proof has lost its significance and C ourt
should pass judgment appreciating evidence let in by the parties and since,
Lila failed to disclose the particulars of her ‘stridhan ’ properties and since,
Lila admitted that she was a home -maker throughout h er life havin g no
independent income of her own , the learned Court below should have come
to the conclusion that Lila was nothing but a mere name -lender.
22. At the cost of reiteration , it may be stated that a Court is required
to bear in mind the well-settled principl es to the effect that the burden of
showing that a transfer is a benami transaction always lies on the person
who asserts it. In the Indian society, if a husband supplies the consideration
money for acquiring property in the name of his wife, such f act doe s not
necessarily imply benami transaction. S ource of money is, no doubt, an
important factor but not a decisive one. The intention of the supplier of the
consideration money is the vital fact to be proved by the party who asserts
benami . In other words, e ven if it is proved that Sailendra paid the
consideration money, the p laintiff m ust further prove that Sailendra really
intended to enjoy the full benefit of the title in him alone.
23. In the case before us, Sekhar could not bring any evidence even to
show what was amount of consideration money and how the consideration
money was paid and how the suit property was purchased and even he
could not prove who paid the consideration money. He could not produce
any document relating to the suit property. Title deed and all document s
relating to the suit property were all along in the custody of Lila and Lila a ll
along paid municipal tax and got the suit property mutated in her name and
Sekhar could not bring any evidence on record to lead any prudent man to
infer that his father had a motive to create benami in name of his mother or
Sailen dra intended to enjoy the full benefit of the title in him alone.
Judgments relied upon by the appellant in spite of having unquestionable
value of the proposition laid down the rein, shall not come in aid of the
appellant in the fact ual matrix of the case at hand.
24. As a result, we are inclined to hold that learned C ourt below has
correctly held that Sekhar has failed to discharge his burden to prove that
subject sale transacti on is benami transaction and we have not found any
wrong in the approa ch and decision of the learned C ourt below and we are
of the view that judgment and decree impugned cannot be annihilated .
25. Ex consequenti , the appeal fails. Judgment and decree impug ned
are affirmed. Parties shall bear their own cost s.
26. Let a decree be drawn up , accordingly.
27. Let a copy of this judgment along with the L CR be sent down to
the learned C ourt below forthwith.
28. Urgent Photostat copy o f this judgment, i f applied for, shall be
granted to the parties as expeditiously as possible, upon compliance o f all
formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
|
A transaction cannot be labelled a benami transaction merely because the husband bought the property in the name of the wife, the Calcutta High Court recently ruled [Sekhar Kumar Roy vs Lila Roy].
A division bench of Justices Tapabrata Chakraborty and Partha Sarathi Chatterjee said that even if it is proved that husband paid the consideration money, it has to be further proved that husband really intended to enjoy the full benefit of the title in him alone.
"In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one," the bench emphasised in its order passed on June 7.
The intention of the supplier of the consideration money is the vital fact and the same has to be proved by the party who asserts that the transaction was a benami one, the Court said.
"Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami," the Court stated.
The burden of showing that a transfer is a benami one, always lies on the person who asserts it, the bench underlined.
The bench was seized of an appeal filed by one Sekhar Kumar Roy (plaintiff), who sought partition of a two-storey house, which was constructed by his father Sailendra.
Sailendra had purchased the land on which the house stands, in the name of his wife Lila.
After her husband's death in 1999, the wife (Lila), son (Sekhar) and daughter (Sumita) all got 1/3 shares in the property.
Sekhar lived in the house till 2001 but later moved out and then sought to partition the property. However, the mother and daughter (Lila and Sumita) were not ready to accept this.
Things became worse for the family after the mother gave up her share as a gifted property to her daughter.
Sekhar then moved the Court alleging that this was a benami property.
The plaintiff alleged that his father had purchased this benami property which was given to his mother Lila.
However, the bench noted that Sekhar could not bring any evidence even to show what was amount of consideration money was and how the consideration money was paid and how the suit property was purchased.
"He could not produce any document relating to the suit property," the bench noted while dismissing the claim.
Advocates Ayan Poddar, Soham Dutta and Kamran Alam appeared for the plaintiff.
Advocates Sagnik Chatterjee and Sayan Mukherjee represented the defendants.
|
ivil Appeal No. 2847 of 1986 290 From the Judgment and Order dated 1.8.1986 of the Delhi High Court in F.A.O. No. 146 of 1986.
Soli J. Sorabjee, E.C. Agarwala and Lalit for the Appel lants.
T.S.K. Iyer, B.P. Maheshwari, V.N. Ganpule, S.K. Agniho tri and J. Singh for the Respondent.
The Judgment of the Court was delivered by OZA, J.
This appeal arises as a result of leave granted by this Court against the summary dismissal of the first appeal by the appellant before the High Court of Delhi.
The first appeal was filed against an order passed by Sub Judge 1st Class, Delhi rejecting the review petition filed by the petitioner.
The facts necessary for disposal of this case are that in a suit filed against the present appellant in the Court of Sub Judge 1st Class, Delhi when the matter was fixed for evidence of the defendant as the plaintiff 's evidence was over and defendant present appellant 's evidence was to begin when the case was taken up on 24th January, 1985.
The order sheet of the Court shows that no DW is present and at the request of the counsel of the defendant the case was adjourned to 7th May, 1985.
It is stated that on this date for some reason, the. case was transferred to another board and in the transferee court, the order sheet showed presence of the counsel for parties and it further shows that as the case was received on transfer it was ordered to be put up on 21st August, 1985.
Learned counsel for the appellant disputed the mention in these proceedings about the presence of the counsel of the defendantappellant.
But in any event as it is not impor tant for the decision of this appeal it is not necessary to go into that question.
On 21st, August, 1985 it appears that there was a holi day and therefore the case was put up before the learned Judge on 22nd August, 1985 and it was postponed to 30th October, 1985 for the evidence of the defendant.
On 30th October, 1985 the order sheet showed that the counsel for plaintiff was present but no one was present for the defend ant.
The Court therefore directed the case to be taken up at 1 P.M.
At 1 P.M. again the situation remained the same as it is clear from the order sheet.
It also shows that none of the witnesses for defendant was also present and therefore the Court passed the order: "the case was called but none has appeared on behalf of the defendant and no DWs present.
The evidence of defendant closed.
291 Now to come up for arguments.
" The next date fixed was 1st November, 1985.
On this date also nobody appeared for the defendant and counsel for the plaintiff who was present sought adjournment and the case was adjourned to 8th Novem ber, 1985.
On 8th November, 1985 arguments of the plaintiffs counsel were heard and as none was present for the defendant the case was fixed for judgment on 11th November, 1985.
On this date also counsel for the plaintiff was present.
Nobody was present for the defendant and order sheet shows that as judgment was not ready it was postponed to 21st November, 1985.
On 21st November, the judgment was dictated and pro nounced and the order sheet also shows that the learned Judge ordered decree to be prepared.
It appears that after this the defendant claimed that they came to know about the decree on 18th January, 1986 as on that day the plaintiff came to take possession and therefore filed an application under Order 9 Rule 13 for setting aside the exparte decree which was dismissed by the trial court holding that the case was disposed of not in accordance with Order 17 Rule 2 but in accordance with Order 17 Rule 3 and therefore the appli cation under Order 9 Rule 13 was not maintainable.
The appellant defendant thereafter filed an application for review but that application also was dismissed by the trial court.
Thereafter the first appeal Was filed before the High Court of Delhi which was dismissed summarily by the impugned order.
Learned counsel for parties submitted at length the controversy that existed before the amendment of Code of Civil Procedure in 1976 about the interpretation of Order 17 Rule 2 and Order 17 Rule 3.
Apparently there were two views.
one was that Order 17 Rule 3 could be used for deciding the matter on merits if the party is present but has failed to do what was expected of that party to do and this rule could not be used against a party who was present whereas the other view was that even if a party is absent but has failed to do what was expected of him then it was the discretion of the Court either to proceed under Order 17 Rule 2 or under Order 17 Rule 3.
In some decisions, the High Courts have gone to the extent of saying that even if the trail court disposes of the matter as if it was disposing it on merits under Order 17 Rule 3 still if the party against whom the decision was pronounced was absent it could not be treated to be a dis posal in accordance with Order 17 Rule 3 and provisions of Order 9 will be available to such a party either for resto ration or for setting aside an exparte decree.
Learned counsel placed before us a 292 number of decisions of various High Courts on this aspect of the matter.
But in our opinion in view of the amendment to these two rules which have been made by 1976 amendment of the Code of Civil Procedure it is not disputed that to the facts of this case, Code of Civil Procedure as amended will be applicable and therefore it is not necessary for us to go into that question.
Order 17 Rule 2 and Rule 3 as they now stand reads: "Order 17, Rule 2: Procedure if parties fail to appear on day fixed: Where, on any day to which the beating of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf of Order IX or make such other order as it thinks fit.
(Explanation Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.
Order 17 Rule 3: Court may proceed notwith standing either party fails to produce evi dence, etc.
Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act neces sary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding, such default, (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is absent, proceed under Rule 2.
" It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2.
It is therefore clear that in absence of the defend ant, the Court had no option but to 293 proceed under Rule 2, Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fail to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9.
The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence.
It is therefore clear that if on a date fixed, one of the parties remain absent and for that party no evidence has been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure.
It is therefore clear that after this amendment in Order 17 Rules 2 and 3 of the Code of Civil Procedure there remains no doubt and therefore there is no possibility of any con troversy.
In this view of the matter it is clear that when in the present case on 30th October 1985 when the case was called nobody was present for the defendant.
It is also clear that till that date the plaintiffs evidence has been recorded but no evidence for defendant was recorded.
The defendant was only to begin on this date or an earlier date when the case was adjourned.
It is therefore clear that upto the date i.e. 30th October, 1985 when the trial court closed the case of defendant there was no evidence on record on behalf of the defendant.
In this view of the matter there fore the explanation to Order 17 Rule 2 was not applicable at all.
Apparently when the defendant was absent Order 17 Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under Order 9.
It is also clear that Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant.
In this view of the matter it could not ' be disputed that the Court when proceeded to dispose of the suit on merits had committed an error.
Unfor tunately even on the review application, the learned trial Court went on in the controversy about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.
The learned counsel for the respondent attempted to contend that in this view of law as it now stands an appli cation under Order 9 Rule 13 will be maintainable.
However it was suggested that there was also an objection of limita tion about the acceptance of that applica 294 tion.
It is apparent that the learned trial Court has not considered the application on merits but has only rejected it as not maintainable and that order has been maintained.
This objection of the learned counsel for the respondent is not necessary for us to go into at this stage as in view of the law discussed above, the order rejecting the application as not maintainable, has to be set aside and it will be open to the learned trial Court to consider the application under Order 9 Rule 13 and dispose it of in accordance with that law and while so doing, it may even examine the objections that may be raised by the respondent.
The appeal is therefore allowed with costs.
The order passed by Hon 'ble the High Court and also the trial court rejecting the application of the appellant under Order 9 Rule 13 is set aside and it is directed that the learned trial court will proceed to hear and dispose of the applica tion under Order 9 Rule 13 filed by the appellant in accord ance with law.
A.P.J. Appeal al lowed.
|
In a suit in which the appellant was defendant, after the plaintiff 's evidence was over, the defendant was to begin his evidence on 24th January, 1985.
As no witness was present, at the request of defendant 's counsel the case was adjourned to 7th May, 1985.
On that day, the case was trans ferred to another Court and the transferee Court ordered the case to be put up on 21st August, 1985.
It being a holiday, the case was put up on 22nd August, 1985 when it was ad journed to 30th October, 1985.
On that day, no one was present for the defendant.
The case was again taken up at 1 p.m. but the situation remained the same.
Since none of the witnesses for defendant was also present, evidence was closed and case fixed for arguments for 1st November 1985.
On this date also nobody appeared for the defendant and the case was adjourned to 8th November, 1985.
On that day, arguments of the plaintiff 's counsel were heard and as none was present for defendant, the case was fixed for judgment on 11th November, 1985.
On this date also nobody was present for defendant and since judgment was not ready it was post poned to 21st November, 1985.
On this date the judgment was dictated, pronounced and decree was ordered to be prepared.
The defendant filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside ex parte decree urging that he came to know about decree on 18th January, 1986 when the plaintiff came to take posses sion.
The trial Court dismissed the application holding that it was not maintainable because the case was disposed of not in accordance with Order 17 Rule 2, but in accordance with Order 17 Rule 3.
An application for review was also dis missed by the Trial Court.
The first appeal too was summari ly dismissed by the High Court.
Allowing the appeal, 289 Held: 1.
The order passed by the High Court and also the trial Court rejecting the application of the appellant under Order 9 Rule 13 of the Civil Procedure Code 1908 are set aside and the trial Court is directed to dispose of the application in accordance with law.
[294C] 2.
In cases where a party is absent, only course is as mentioned in Order 17(3)(b) to proceed under Rule 2.
The language of amended Rule 2 also lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9.
The Explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in case where a party which is absent has led some evidence or has examined substantial part of their evidence.
Therefore, if on a date fixed, one of the parties remains absent and for that party no evidence has been examined upto that date the court has no option but to proceed to dispose of the matter in accordance with Order 17 Rule 2 in any one of the modes prescribed under Order 9 of the Code of Civil Procedure.
After this amendment in Order 17 Rules 2 and 3 in 1976 there remains no doubt, and therefore, there is no possibility of any controversy.
[292H 293C] 3.
In the present case, on 30th October 1985 when the case was called nobody was present for the defendant, and till that date the plaintiff 's evidence had been recorded but no evidence for defendant was recorded.
The defendant was only to begin on this date or an earlier date when the case was adjourned.
It is, therefore, clear that upto 30th October 1985 when the trial Court closed the case of defend ant there was no evidence on record on his behalf.
There fore, the Explanation to Order 17 Rule 2 was not applicable at all.
Apparently when the defendant was absent Order 17 Rule 2 only permitted the Court to proceed to dispose of the matter in any one of the modes provided under Order 9.
[293D E] 4.
Order 17 Rule 3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of the defendant was closed nobody appeared for the defendant and, therefore, the Court when it proceeded to dispose of the suit on merits had committed an error.
Even on the review application, the trial Court went on in the controversy about Order 17 Rules 2 and 3 which existed before the amendment and rejected the review application and on appeal, the High Court also unfortunately dismissed the appeal in limine by one word.
[293F G]
|
1. Leave granted.
2. Vide order1 passed by the High Court2 in Criminal Petition
No. 2585 of 2019 filed by the appellant -State, an order dated 18.01.2018
passed by the Trial Court3 was upheld. Vide the aforesaid order an
1 Dated 27.01.2022.
2 High Court of Karnataka at Bengaluru .
3 XLVIII Additional City Civil and Sessions Judge (Special Court for Trial of CBI Cases) City Civil Court, Bangalore .
application s4 filed by the prosecution under Section 311 of the Cr.P.C.5,
seeking recall of M. Krishna (PW -189) and permit the prosecution to
produce the report and the certificate under Section 65B of the Act6 was
rejected.
3. Genesis of the trial is that in a serial bomb blast s which took
place in Bangalore on 25.07.2008 , one woman lost her life whereas
several persons were injured. Several FIRs were registered at
Madivala7, Koramangala8, Byatarayanapura9, Kengeri10,
Ashokanagar11, Sampangirama12 and Adugodi13 Police Stations for the
offence punishable under Section s 120B, 121, 121A, 123, 153A, 302, 307,
326, 337, 435, 506 & 201 of the IPC14 and Sections 3 to 6 of the Explosive
Substance s Act, 1908 , Sections 3 and 4 of the Prevention of Destruction
and Loss of Property Act, 1981 , Sections 3 and 4 of the Prevention of
Damage to Public Property Act, 1984 and Sections 10 and 13 of the
Unlawful Activities (Prevention) Act, 1967 . During the course of
4 S.C. Nos. 1480/2010 & 1481/2010.
5 The Code of Criminal Procedure, 1973.
6 The Indian Evidence Act, 1872
7 Criminal Case No. 483/2008.
8 Criminal Case No. 297/2008.
9 Criminal Case No. 314/2008.
10 Criminal Case No. 117/2008.
11 Criminal Case No. 260/2008 and 261/2008.
12 Criminal Case No. 92/2008.
13 Criminal Case No. 217/2008.
14 The Indian Penal Code, 1860.
investigation certain electronic devices such as one Laptop, one
external Hard D isc, 3 Pen Drive s, 5 floppies, 13 CDs, 6 SIM cards, 3
mobile phones, one memory card and 2 digital cameras etc. were
seized at the instance of accused no.3 i.e., Sarafaraz Nawaz@ Seju
@Hakeem . The original electronic devices were submitted before the
Trial Court along with the additional chargesheet dated 09.06.2010.
The Trial Court vide order dated 07.04.2017 ordered that the CFSL
Report dated 29.11.2010 with reference to the electronic devices was
inadmissible in evidence in the absence of a certificate under Section
65-B of the Act . Though, according to the prosecution, the original
devices being already on record (as a primary evidence), there was no
requirement of a certificate under Section 65 -B of the Act. Still, as a
matter of abundant caution, a certificate under Section 65 -B of the Act
was obtained and when M. Krishna (PW -189) was further examined in
chief on 27.04.2017, a certificate under Section 65 -B of the Act was
sought to be produced. Objection was raised by the counsel for the
accused. Vide order dated 20.06.2017, the Trial Court opined that the
certificate issued under Section 65 -B of the Act produced on 27.04.2017
was not admissible in evidence. Thereafter an application was filed in
the court to allow the prosecution to recall M. Krishna (PW -189) and to
produce the certificate under Section 65 -B of the Act in evidence. The
application was rejected by the Trial Court holding the same to be
delayed. The order of the Trial Court was upheld by the High Court. It
is the aforesaid order which is under challenge before this Court.
4. Mr. Aman Panwar, Additional Advocate General, appearing
for the appellant -State, in his brief argument submitted that in the case
in hand, which shocked the whole country as such , serial bomb blast s
in Bangalore w ere master minded by the accused. The courts below
should have considered the application in that light . What was sought
to be produced by the prosecution was not something , which was
created later on . Rather it was merely a certificate under Section 65B of
the Act. The primary evidence in the form of electronic devices was
already on record along with the report from CFSL. It is only because
the accused raised an objection to the production of that report and not
to take any chances, the prosecution filed an application under Section
311 Cr.P.C. to resummon M. Krishna (PW -189) and produce the
certificate under Section 65 -B of the Act in evidence. There was no
delay as immediately after the court rejected the report dated
29.11.2010 of CFSL on 07.04.2017, an application was filed on
16.12.2 017 seeking to produce the certificate under Section 65B of the
Act dated 27.04.2017. The learned courts below should have
appreciated the fact that by denying the prosecution opportunity to
produce the certificate under Section 65 -B of the Act , great injustice
would be caused to the appellant . In support of the arguments that a
certificate under Section 65 -B of the Act can be furnished /produced at
any stage of proceedings, reliance was placed on the judgment s of this
Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and Arjun
Panditrao Khotkar v. Kailash Kushanr ao Gorantyal, (2020) 7 SCC
5. In response, Mr. Balaji Srinivasan, learned counsel
appearing for the respondents, submitted that there was no error in the
orders passed by the courts below. The prosecution cannot be allowed
to fill up the lacuna in the evidence by filing an application under
Section 311 of the Cr.P.C. The certificate was sought to be produced
after a delay of six years. Hence, the same was rightly not permitted to
be produce d on record. Great prejudice shall be caused to the
responden ts now if the same is permitted . The respondents will be
deprived of their right of fair trial. The appeal deserves to be
dismissed.
6. We have heard learned counsel for the parties and perused
the relevant referred record.
7. The facts of the case have been briefly noticed in the
preceding paragraphs. Serial bomb blast s took place in Bangalore on
25.07.2008 which shocked not only the Bangalore city or the State but
the entire country, as in such terror attacks it is only the innocents who
suffer . The investigation had to be scientific. At the instance of the
accused no.3 , electronic devices such as one Laptop, one external Hard
Disc, 3 Pen Drives, 5 floppies, 13 CDs, 6 SIM cards, 3 mobile phones,
one memory card and 2 digital cameras etc. were recovered and
seized. These were sent for examination to the CFSL, Hyderabad.
Report was received on 29.11.2010. The same was submitted before
the Trial Court on 16.10.2012 and sought to be proved at the time of
recording of statement , M. Krishna, Assistant Government Examiner,
Computer Forensic Division, CFSL, appeared as PW -189. The accused
vide application dated 06.03.2017 objected to taking the report dated
29.11.2010 in evidence in the absence of a certificate under Section 65 -
B of the Act. Immediately, thereafter a certificate dated 27.04.2017 was
got issued under Section 65 -B of the Act and an application was filed
under Section 311 of the Cr.P.C. seeking to recall M. Krishna ( PW-189)
and to produce the aforesaid certificate in evidence. The trial was still
pending. Learned Trial Court without appreciating the legal position
in this regard had dismissed the application. The order was upheld by
the High Court. It was primarily for the reason of delay in producing
the certificate under Section 65B of the Act.
8. This Court in Anwar ’s case (supra) has opined that a
certificate under Section 65B of the Act is not required if electronic
record is used as a primary evidence. Relevant paragraph thereof is
quoted herein below:
“24. The situation would have been different
had the appellant adduced primary evidence, by making
available in evidence, the CDs used for announcement
and songs. Had those CDs used for objectionable songs
or announcements been duly got seized through the
polic e or Election Commission and had the same been
used as primary evidence, the High Court could have
played the same in court to see whether the allegations
were true. That is not the situation in this case. The
speeches, songs and announcements were recorded
using other instruments and by feeding them into a
computer, CDs were made therefrom which were
produced in court, without due certification. Those CDs
cannot be admitted in evidence since the mandatory
requirements of Section 65 -B of the Evidence Act are not
satisfied. It is clarified that notwithstanding what we
have stated herein in the preceding paragraphs on the
secondary evidence of electronic record with
reference to Sections 59, 65 -A and 65 -B of the Evidence
Act, if an electronic record as such is used as primary
evidence under Section 62 of the Evidence Act, the
same is admissible in evidence, without compliance
with the conditions in Section 65 -B of the Evidence
Act. ” (Emphasis added)
9. The aforesaid issue was subsequently considered by this
Court in Arjun Panditrao Khotkar ’s case (supra). It was opined that
there is a difference between the original information contained in a
computer itself and the copies made therefrom. The former is primary
evidence and the latter is secondary one. The certificate under Section
65-B of the Act is unnecessary when the original document (i.e.,
primary evidence) itself is produced. Relevant paragraph ‘33’ thereof
is extracted below:
“33. The non obstante clause in sub -section (1)
makes it clear that when it comes to information contained
in an electronic record, admissibility and proof thereof
must follow the drill of Section 65 -B, which is a special
provision in this behalf — Sections 62 to 65 being
irrelevant for this purpose. However, Section 65 -B(1)
clearly differentiates between the “original”
document — which would be the original “electronic
record” contained in the “computer” in which the
original information is first stored — and the
computer output containing such inform ation, which
then may be treated as evidence of the contents of the
“original” document. All this necessarily shows that
Section 65 -B differentiates between the original
information contained in the “computer” itself and
copies made therefrom — the former being primary
evidence, and the latter being secondary evidence.”
(Emphasis added)
10. In State of Karnataka v. M.R. Hiremath, 2019(7) SCC 515 ,
this Court after referring to the earlier judgment in Anwar ’a case
(supra) held that the non-production of the Certificate under Section
65B of the Act is a curable defect. Relevant paragraph ‘16’ thereof is
extracted below:
“16. The same view has been reiterated by a two -
Judge Bench of this Court in Union of India v. Ravindra V.
Desai , (2018) 16 SCC 273. The Court emphasised that
non-production of a certificate under Section 65 -B on
an earlier occasion is a curable defect . The Court
relied upon the earlier decision in Sonu v. State of
Haryana , (2017) 8 SCC 570 in which it was held:
‘32. … The crucial test, as affirmed by this Court,
is whether the defect could have been cured at the
stage of marking the document. Applying this test to
the present case, if an objection was taken to the CDRs
being marked without a certificate, the court could
have given the prosecution an opportunity to rectify
the deficiency .’
(Emphasis added)
11. Coming to the issue as to the stage of production of the
certificate under Section 65 -B of the Act is concerned, this Court in
Arjun Panditrao Khotkar ’s case (supra) held that the certificate under
65-B of the Act can be produced at any stage if the trial is not over .
Relevant paragraphs are extracted below:
“56. Therefore, in terms of general procedure,
the prosecution is obligated to supply all documents
upon which reliance may be placed to an accused before
commencement of the trial. Thus, the exercise of power
by the courts in criminal trials in permitting evid ence to
be filed at a later stage should not result in serious or
irreversible prejudice to the accused. A balancing
exercise in respect of the rights of parties has to be
carried out by the court, in examining any application by
the prosecution under Sections 91 or 311 CrPC or Section
165 of the Evidence Act. Depending on the facts of each
case, and the court exercising discretion after seeing
that the accused is not prejudiced by want of a fair
trial, the court may in appropriate cases allow the
prosecution to produce such certificate at a later
point in time. If it is the accused who desires to
produce the requisite certificate as part of his
defence, this again will depend upon the justice of
the case — discretion to be exercise d by the court in
accordance with law.
59. Subject to the caveat laid down in paras 52
and 56 above, the law laid down by these two High
Courts has our concurrence. So long as the hearing in
a trial is not yet over, the requisite certificate can be
directed to be produced by the learned Judge at any
stage, so that information contained in electronic
record form can then be admitted and relied upon in
evidence. ”
(Emphasis added)
12. The courts below had gone on a wrong premise to opine that
there was delay of six years in producing the certificate whereas there
was none. The matter was still pending when the application to
resummon M. Krishna (PW -189) and produce the certificate under
Section 65 -B of the Act was filed under Section 311 of the Cr.P.C.
13. It was only vide order dated 07.04.2017 that the report
prepared on the basis of electronic devices was refused to be taken on
record by the Trial Court. The original electronic devices had already
been produced in evidence and marked as MOs. It was during the
examination in chief of M. Krishna (PW -189) that the report of CFSL
dated 29.11.2010 was sought to be exhibited. However, the Trial Court
vide order dated 07.04.2017 declined to take the same on record in the
absence of a certificate under Section 65B of the Act. When the
aforesaid witness was further examined in chief on 27.04.2017, the
report under Section 65B was produced to which objection was raised
by the counsel of the defence and vide order dated 20.06.2017 the Trial
Court declined to take the certificate, issued under Section 65B of the
Act, on record. It was thereafter that an application was filed under
Section 311 of the Cr.P.C. for recalling M. Krishna (PW -189) and
produc e the certificate under Section 65 -B of the Act on record. The
same was rejected by the Trial Court vide order dated 18.01.2018.
14. From the aforesaid facts, it cannot be inferred that there was
delay of six years in producing the certificate. In fact, report received
from CFSL, Hyderabad on the basis of the contents of electronic devices
dated 29.11.2010 was already placed before the Trial Court on
16.10.2012. In fact, the stand of the prosecution was that when the
original electronic devices were already produced and marked MOs,
there was no need to produce the certificate under Section 65 -B of the
Act. Still, as a matter of abundant caution, the same was produced that
too immediately after objection was raised by the accused against the
production of CFSL report pre pared on the basis of the electronic
devices seized.
15. Fair trial in a criminal case does not mean that it should be
fair to one of the parties. Rather, the object is that no guilty should go
scot-free and no innocent should be punished. A certificate under
Section 65 -B of the Act , which is sought to be produced by the
prosecution is not an evidence which has been created now. It is
meeting the requirement of law to prove a report on record. By
permitting the pro secution to produce the certificate under Section 65B
of the Act at this stage will not res ult in any irreversibl e prejudice to the
accused. The a ccused will have full opportunity to rebut the evidence
led by the prosecution. This is the purpose for which Section 311 of the
Cr.P.C. is there . The object of the Code is to arrive at truth. However,
the power under Section 311 of the Cr.P.C. can be exercised to
subserve the cause of justice and public interest. In the case in hand,
this exercise of power is required to uphold the truth, as no prejudice
as such is going to be caused to the accused.
16. For the aforesaid reasons, t he appeal is allowed . The orders
passed by the courts below are set aside. Resultantly, application filed
by the prosecution under Section 3 11 of the Cr.P.C. is allowed. The
Trial Court shall proceed with the matter further.
|
The Supreme Court recently reiterated that a certificate verifying the authenticity of electronic evidence under Section 65B of the Indian Evidence Act can be produced at any stage of the trial regardless of any delay in doing so. [State of Karnataka vs T Naseer and ors]
A bench of Justices Vikram Nath and Rajesh Bindal added that a fair criminal trial does not mean the process is fair only to one side.
"A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution," the Court explained.
The observations came while setting aside a 2018 Karnataka High Court order that had not allowed the prosecution in the 2008 Bengaluru blasts to produce the said certificate on the ground of delay.
The 2008 Bengaluru blasts had left one person dead and 20 others injured.
In 2018, the Karnataka High Court upheld the trial court's refusal to accept a Section 65B certificate submitted by the prosecution in relation to certain electronic evidence in the case.
The electronic evidence recovered during the probe had been sent the Central Forensic Sciences Laboratory (CFSL) in Hyderabad, which in turn prepared its report on the same in 2010.
In 2017, the trial court refused to accept the CFSL report since Section 65B certificate was not submitted along with it.
At the time, the prosecution argued that such a certificate was not necessary as the original electronic devices had been produced as primary evidence.
However, the matter reached the High Court after the trial court refused to allow the production of the Section 65B certificate on grounds of delay.
After the High Court affirmed the trial court order, the State government moved a plea before the Supreme Court for relief.
The top court relied on its earlier decision in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal to reiterate that such a certificate can be produced at any stage of the trial.
The bench found that the High Court's approach was erroneous and also noted that the defence had also objected to the lack of a certificate after a delay, only in 2017.
"It cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012," the Supreme Court further observed.
The Karnataka government's appeal was, thus, allowed, and the prosecution was allowed to produce the Section 65B certificate. The trial court was directed to proceed with the trial accordingly.
"Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished", the Supreme Court added.
Additional Advocate General Aman Panwar appeared for the Karnataka government. Advocate Balaji Srinivasan appeared for accused.
|
Appeal No. 780 of 1962.
Appeal by special leave from the judgment and decree dated November 28, 1960, of the Patna High Court, in Miscellaneous Judicial Case No. 724 of 1958.
K. N. Rajagopal Sastri and R. N. Sachthey, for the appel lant.
section K. Kapur and B. N. Kirpal, for the respondent.
March 13, 1964.
The judgment of HIDAYATULLAH and SHAH, JJ. was delivered by HIDAYATULLAH J. SARKAR J. delivered a dissenting opinion.
SARKAR, J.
This matter has come before us on a case stated by the Income tax Appellate Tribunal.
The question is how to determine the cost of acquisition of bonus shares for ascertaining the profits made on a sale of them.
The assessment year concerned is 1949 50 for which the accounting year is the calendar year 1948.
The assessee held shares by way of investment and also as stock in trade of his business as a share dealer.
We are concerned in this case only with its holdings of ordinary shares in Rohtas Industries Ltd. In 1944 the assessee acquired 31,909 of these shares at a cost of Rs. 5,84,283 / and was holding them in January 1945.
In that month the Rohtas Industries Ltd. distributed bonus shares at the rate of one ordinary bonus share for each original share and so the assessee got 31,909 bonus shares.
Between that time and December 31, 1947, the assessee sold 14,650 of the original shares with the result that on January 1, 1948 it held the following shares: (a) 17,259 original shares acquired in 1944, (b) 31,909 bonus shares issued in January 1945, (c) 59,079 newly issued shares acquired in the year 1945 after the issue of the bonus shares and (d) 2,500 further shares acquired in 1947.
The total holding of the assessee on January 1, 1948 thus came to 1,10,747 shares which in its books had been valued at Rs. 15,57,902/ .
In arriving at this figure the assessee had valued the bonus shares at the face value of Rs. 10/ each and the other shares at actual cost.
On January 29, 1948, the assessee sold all these shares for the total sum of Rs. 15,50,458 / , that is, at Rs. 14/ per share and in its return for the year 1949 50 claimed a loss of Rs. 7,444 on the sale.
It is this return which has led to this appeal.
213 The Income tax officer held that the assessee was not en titled to charge as the cost of acquisition of the bonus shares a sum equivalent to their face value for nothing had in fact been paid and he computed their cost at Rs. 6 8 0 per share.
He arrived at this price by the following method, which has been called as the method averaging: 584283 x Face value of bonus shares: 319090 x 1/31909.
In adopting this procedure the Income tax Officer purported to follow the decision of the Bombay High Court in Commissioner of Income tax vs Maneklal Chunilal and Sons Ltd.(1).
The Bombay High Court later followed this case in Emerald and Co. Ltd. vs Commissioner of Income tax, Bombay City, Bombay (2).
On that basis he held that the assessee had made a profit of Rs. 2,39,317 by way of capital gains and levied tax on it accordingly.
On appeal the Appellate Assistant Commissioner held that these shares were not investment shares but formed the assessee 's stock in trade on which it was liable to pay income tax and not capital gains tax.
He also held that the assessee having adopted the method of valuing the stocks at cost and no price having actually been paid for the bonus shares, it must be held that there was an inflation in the opening stock by Rs. 3,19,090.
This figure, it may be observed, represented the cost of the bonus shares at their face value.
It% his opinion the bonus shares had to be valued at nit.
The appellate Commissioner 's conclusion was that the assessee was liable to be taxed on a trading profit of Rs. 3,11.646/ in respect of the sale of shares.
Thise view was confirmed on a further appeal to the Appellate Tribunal.
It is however not clear whether the Tribunal held that there had been a trading profit or capital gains.
This matter does not seem to have been raised at any stage after the Appellate Commissioner 's order and is not material to the real question that has to be decided.
After the Tribunal 's judgment the assessee got an order from the High Court directing the Tribunal to refer the following question to it: "Whether on the facts and circumstances of the case the profit computed at Rs. 3,11,646/ on the sale of shares in Rohtas Industries Ltd. was in accordance with law?" The answer to this question admittedly depends on the cost of acquisition, if any, to be properly attributed to the bonus shares.
If the Appellate Commissioner 's method of valuing (1) (I.T. Ref.
No. 16 of 1948, unreported).
(2) 214 them at nil was wrong, the question had to be answered in the negative.
The High Court, following the judgment of Lord Sumner in Swan Brewery Company Limited vs The King(1), held that the real cost of the bonus shares to the assessee was the face value of the shares and answered the question in the negative.
The observations of Lord Sumner which he later expressed more fully in Commissioner of Inland Revenue vs Blott(2) , no doubt, lend support to the High Court 's view.
I shall consider the view expressed by Lord Sumner later.
Now, I wish to notice another case on which the High Court also relied and that was Osborne (H.M. Inspector of Taxes) vs Steel Barrel Co. Ltd(3).
I do not think that the observations of Lord Greene M. R. in this case to which the High Court referred, are of any assistance.
All that was there said was that when fully paid shares were properly issued for a consideration other than cash, the consideration must be at the least equal in value to the par value of the shares and must be based on an honest estimate by the directors of the value of the assets acquired.
In that case fully paid shares had been issued in lieu of stocks and the question was as to how the stocks were to be valued.
That case had nothing to do with the issue of bonus shares or the ascertainment of the cost of their acquisition.
As I have said earlier, Lord Sumner 's observation in Blott 's case (2) certainly supports the view taken by the High Court but in that case Lord Sumner was in a minority.
The other learned Judges, excepting Lord Dunedin, who took a somewhat different view to which reference is not necessary because it has not been relied upon, held that when the articles of a company authorise the issue of bonus shares and the transfer of a sufficient amount out of the accumulated profits in its hands representing their face value to the share capital account, what happens when the articles are acted upon is a capitalisation of the profits and the bonus shares issued are not in the hands of the share holder income liable to tax.
In Blott 's case (2) the articles gave the power which had been acted upon.
Lord Sumner on the other hand held that since a company could not issue shares for nothing nor pay for them out of its profits, it must be held that what happened in such a case was as if the company had issued cash dividend to the shareholder and had set it off against the liability of the shareholder to pay for the bonus share issued to him.
I think the preferable view is that taken by the majority of the Judges.
When the articles permit the issue of bonus shares and the transfer of undivided profits direct to the share capital account, it cannot be said that a cash dividend must be (1) (3) 215 deemed to have been declared which could be set off against the liability to pay for the shares.
This is not what was done in fact.
What in fact was done, and legally done, was to transfer the profits to the share capital account by a resolution passed by the majority of the shareholders so that the shareholders never acquired any right to any part of it.
The view taken by the majority has since been followed unanimously, and even if it was open to doubt, for myself, at this distance of time, I would not be prepared to depart from it: Commissioners of Inland Revenue vs Fisher 's Executors(1) and Commissioner of Income tax, Bengal vs Mercantile Bank of India Limited(2).
It is of some significance to observe that the latter is a case from India.
In the present case the record does not contain any refer ence to the resolutions resulting in the issue of the bonus shares nor to the provisions of the articles but the case has proceeded before us on the basis that the bonus shares had been legally issued under powers contained in the articles and the profits had been equally legally transferred to the share capital account without the shareholders having acquired any right in them.
Following the majority opinion in Blott 's case(3) I think I must hold that the High Court was in error in the view it took in the present case.
There is no foundation for proceeding on the basis as if the bonus shares had been acquired by the assessee at their face value.
Its profits cannot be computed on that basis.
Two other methods of ascertaining the cost of acquisition of the bonus shares for computing the profits made on their sale have been suggested.
One of them is the method of averaging which is the method adopted by the Bombay High Court in the cases earlier mentioned.
The other is the method of finding out the fall in the price of the original shares on the issue of the bonus shares and attributing to the latter shares that fall and to value them thereby.
The object of these methods seems to me to find out what the bonus shares actually cost the assessee.
But this would be an impossible task for they actually cost the assessee nothing; it never paid anything for them.
There would be more reason for saying that it paid the face value of the bonus shares because the profits of the Company of a, similar amount which might otherwise have come to it had been directly appropriated to the share capital account on the issue of the bonus shares.
But this method I have rejected already and, for the reason that no amount was actually paid for the bonus shares by the assessee.
For the same reasons the two suggested methods for ascertaining the actual (1) ; 2) (1936) A.C. 478.
(3 ) 216 cost of these shares have also to be rejected.
If however it were to be said that these methods were for finding out the market value of the bonus shares the importance of which value for the present purpose will soon be seen I would say that the only way to find out the market value is from the market itself.
How then is the cost of the bonus shares to be determined? We start with this that nothing in fact was paid for them.
But if the cost of acquisition is nil, the whole of the sale proceeds of the shares would be taxable profits.
In Commis sioner of Income tax vs Bai Shirinbai K. Kooka(1) this Court has approved of the Bombay High Court 's view that "obvious ly, the whole of the sale proceeds or receipts could not be treated as profits and made liable to tax, for that would make no sense" (P. 397).
So the profits cannot be ascertained on the basis that the bonus shares had been acquired for nothing.
The view taken by the Appellate Commissioner and the Tribunal cannot be supported.
It seems to me that the cost price of the bonus shares has to be decided according to the principle laid down in Bai Shirinbai Kooka 's case(1).
The assessee in that case had purchased shares many years ago by way of investment at a comparatively lower price.
She started trading with them from April 1, 1945.
The question was how the profits on the sale of these shares were to be ascertained.
The sale price was known but what was the cost price? The High Court said that in order to arrive at real profits one must consider the accounts of the business on commercial principles and construe profits in their normal and natural sense, a sense which no commercial man would misunderstand.
The High Court 's conclusion was this: When the assessee purchased the shares at a lesser price, that is what they cost her and not the business; but so far as the business was concerned, the shares cost the business nothing more or less than their market value on April 1, 1945.
This date, it will be remembered, was the date when the business was started.
These observations were fully approved by this Court.
Bai Shirinbai Kooka 's case(1) therefore is authority for the proposition that where it cannot be shown what was paid for the acquisition of a trading asset by a trader, it has for tax purposes to be deemed to have been acquired at the market value of the date when it was acquired.
I think on the authority of this case, the bonus shares must in the present case be deemed to have been acquired at the market value of the date ,of their issue.
I would, therefore, answer the question framed in the negative.
(1) [1962] Supp. 3 S.C.R. 391. 217 HIDAYATULLAH, J.
This appeal by the Commissioner of Income tax, Bombay raises the important question how bonus shares must be valued by an assessee who carries on business in shares.
The assessee here is Dalmia Investment Co. Ltd. (now Shri Rishab Investment Co. Ltd.) which is a public limited company and the bonus shares were issued in the calendar year 1945 by Rohtas Industries Ltd. in the propor tion of one bonus share for one ordinary share already held by the shareholders.
In this way, the assessee company received 31,909 bonus shares of the face value of Rs. 10/ per share which shows that its previous holding was 31,909 ordinary shares.
The existing ordinary shares were purchased by the assessee company for Rs. 5,85,283/ .
We now come to the assessment year 1949 50 which corresponded to the accounting period of the assessee company the calendar year 1948.
The assessee company was holding shares as investment and was also dealing in shares.
The shares in the trading account, being the stock in trade, were valued at the beginning of the year and also at the end of the year and the book value was based on cost.
Between December 31, 1945 and January 1, 1948, the assessee company sold some shares of Rohtas Industries Ltd. and bought others.
Its holding on the first day of January 1948 was 1,10,747 shares which were valued in its books at Rs. 15,57,902/ .
The assessee company sold these shares on January 29, 1948 to Dalmia Cement and Paper Marketing Company Limited for Rs. 15,50,458/ .
This date, it may be pointed cut, fell within the period in which capital gains were taxable.
The assessee company returned a loss of Rs. 7,444/on this sale.
In its books it had valued these shares as follows: Existing shares Book value (1) 17,259 (out of 31,909 original 13,10,951 Proportionate shares).
cost from Rs. 5,84,283.
(2) 31,909 Bonus shares 3,19,090. 00 at face value of Rs. 10 per share (3) 59,079 Now Issue shares 8,88,561 00at cost.
(4) 2,500 New purchase shares 39,300 00at cost.
Total 1,10,747 shares 15,57,902. 00 The amount of Rs. 3,19,090/ which represented the cost of the bonus shares in the above account was debited to the investment account and an identical amount was credited to a capital reserve account.
, The loss which was returned was the difference between Rs. 15,57,902/ claimed to be the cost price of 1, 10,747 shares and their sale price of Rs. 15,50,458/.
The return was not accepted by the Income tax Officer, Special Investigation Circle, Patna.
In his assessment order, the Income tax Officer held that the market value of the existing 218 shares when bonus shares were issued, was Rs. 18/ per share and the value of the shares was Rs. 5.74,362/ (31,909 x Rs. 18).
He held that the sale of the shares took place at Rs. 14/ per share.
To this data he purported to apply a deci sion of the High Court of Bombay in Commissioner of Income tax vs Maneklal Chunnilal and Sons(1) and held that there was profit of Rs. 7/8/0 per bonus share and the, total profit was Rs. 2,39,317/ which he held was capital gain.
He brought Rs. 2,39,317/ to tax as capital gains.
Before the Appellate Assistant Commissioner, Patna.
reliance was placed upon the decision of the Bombay High Court in Emerald and Co. Ltd. vs Commissioner of Incometax, Bombay City(2) and it was argued that by applying the principle laid down in that case, the average cost was Rs. 9/10/0 per share and total profit Rs. 1,49,355/ .
The Appellate Assistant Commissioner did not accept the above calculation.
According to the Appellate Assistant Commissioner, the bonus shares had cost nothing to the assessee company.
He omitted Rs. 3,19,090/ from the book valuation and held that the actual cost of 1,10,747 shares was Rs. 12,38,812/and that the assessee company instead of suffering a loss of Rs. 7,444/ on the sale of the shares had actually made profit of Rs. 3,11,646/ .
He issued a notice to the assessee company and enhanced the assessment.
On further appeal to the Tribunal, the assessee company submitted again on the strength of the ruling of the Bombay High Court in Emerald and Co. Ltd. vs Commissioner of Income tax, Bombay City(2) that the actual profit was Rs. 1,57,326/ .
This was done by spreading the cost of the 31,909 ordinary shares over those shares and bonus shares taken together and adding to half the cost attributable to the old ordinary shares the cost of new purchases in the same year and finding out the average cost of shares other than bonus shares.
The Tribunal did not accept this calculation.
According to the Tribunal it was not possible to put a valuation upon shares for which nothing was paid.
The Tribunal held that the old shares and bonus shares could not be "clubbed together" and the decision of the Appellate Assistant Commissioner was right.
The Tribunal, however, stated a case under section 66(1) of the Income tax Act at the instance of the assessee company suggesting the question for the opinion of the High Court: "Whether on the facts and circumstances of the case, the profit computed at Rs. 3,11,646/ on the sale of shares in Rohtas Industries Ltd. was in accordance with law?" (1) Income tax Reference No. 16 of 1948 dt.
23 3 1949.
(2) 219 The reference was heard by V. Ramaswamy, C.J. and Kanhaiya Singh, J. They held that the Income tax authorities were wrong in holding that profit should be computed at Rs. 3,11,646/ or at any other amount.
According to them, there was no profit on the sale of 31,909 shares and they answered the question in favour of the assessee.
Before the High Court it was contended by the assessee company that the bonus shares must be valued at their face value of Rs. 10/ per share and the Department contended that they should be valued at nil.
It appears that the other methods of calculation of the cost price of bonus shares were abandoned at that stage.
Ramaswami, C.J. and Kanhaiya Singh, J. held that the issue of bonus shares was nothing but a capitalisation of the company 's reserve account or the profits and the bonus shares could not be considered to be issued free.
According to them, the payment for the shares must be found in the bonus which was declared from the undistributed profits and the face value of the bonus shares represented the detriment to the assessee company in respect of the undistributed reserves.
The present appeal was brought against the decision of the High Court by special leave granted by this Court.
It will be seen from the above that there are four possible methods for determining the cost of bonus shares.
The first method is to take the cost as the equivalent of the face value of the bonus shares.
This method was followed by the assessee company in making entries in its books.
The second method adopted by the Department is that as the shareholder pays nothing in cash for the shares, cost should be taken at nil.
The third method is to take the cast of the original shares and to spread it over the original shares and bonus shares taken collectively.
The fourth method is to find out the fall in the price of the original shares on the stock exchange and to attribute this to the bonus shares.
Before us the assessee company presented for our acceptance the first method and the Department the third method.
We shall now consider which is the proper way to value the bonus shares.
It is convenient to begin with the contention that the cost of bonus shares must be taken to be their face value.
The argument requires close attention, because support for it is sought in certain pronouncements of Lord Sumner to which reference will be made presently.
Mr. Kapur contends that a company cannot ordinarily issue shares at a discount, and argues that a fortiori it cannot issue shares for nothing.
He submits therefore that the issue of bonus shares involves a twofold operation the creation of new shares and the declaration of a dividend or bonus which dividend or bonus must be deemed to be paid to the shareholder and to be returned by him to acquire the new shares.
Since the amount credited in 220 the books of the company as contribution of capital by the shareholder is the face value of the bonus shares, he contends that the cost to the shareholder is equal to the face value of the bonus shares.
He relies upon the decision of the Privy Council in Swan Brewery Company Ltd. vs Rex(1).
In that case, Lord Sumner observed: "True, that in a sense it was all one transaction, but that is an ambiguous expression.
In business, as in contemplation of law, there were two transactions, the creation and issue of new shares on the company 's part, and on the allottees ' part the satisfaction of the liability to pay for them by acquiescing in such a transfer from reserve to share capital as put an end to any participation in the sum of pound 101,450 in right of the old shares, and created instead a right of general participation in the company 's profits and assets in right on the new shares, without any further liability to make a cash contribution in respect of them." Lord Sumner adhered to his view later in the House of Lords in Commissioner of Inland Revenue vs John Blott(2) but Lord Dunedin and he were in a minority, and this view was not accepted by the majority.
In view of this conflict, it is necessary to state what really happens when a company issues bonus shares.
A limited liability company must state in its memorandum of association the amount of capital with which the company desires to do business and the number of shares into which that capital is to be divided.
The company need not issue all its capital at the same time.
It may issue only a part of its capital initially and issue more of the unissued capital on a later date.
After the company does business and profits result, it may distribute the profits or keep them in reserve.
When it does the latter, it does not keep the money in its coffers , the money is used in the business and really represents an increase in the capital employed.
When the reserves increase to a considerable extent, the issued capital of the company ceases to bear a true relation to the capital employed.
The company may then decide to increase its issued capital and declare a bonus and issue to the shareholders in lieu of bonus, certificates entitling them to an additional share in the increased capital.
As a matter of accounting the original shares in a winding up before the increase of issued capital would have yielded to the shareholder the same return as the old shares and the new shares taken together.
What was previously owned by the shareholder by virtue of the original certificates is after the issue of bonus (1) (2) 8 Tax Cases 101.
221 shares, held by them on the basis of more certificates.
In point of fact, however, what the shareholder gets is not cash but property from which income in the shape of money may be derived in future.
In this sense, there is no payment to him but an increase of issued capital and the right of the shareholder to it is evidenced not by the original number of certificates held by him but by more certificates.
There is thus no payment of dividend.
A dividend in the strict sense means a share in the profits and a share in the profits can only be said to be paid to the shareholder when a part of the profits is released to him in cash and the company pays that amount and the shareholder takes it away.
The conversion of the reserves into capital does not involve the release of the profits to the shareholder , the money remains where it was, that is to say, employed in the business.
Thereafter the company employs that money not as reserves of profits, but as its proper capital issued to and contributed by the shareholders.
If the shareholder were to sell his bonus shares, as shareholders often do, the shareholder parts with the right to participation in the capital of the company, and the cash he receives is not dividend but the price of that right.
The bonus share when sold may fetch more or may fetch less than the face value and this shows that the certificate is not a voucher to receive the amount mentioned on its face.
To regard the certificate as cash or as representing cash paid by the shareholder is to overlook the internal process by which that certificate comes into being.
We may now see what was decided in the Swan Brewery 's(1) case.
In that case the company had not distributed all its profits in the past.
As a result, it had a vast reserve fund.
The company increased its capital and from the reserve fund, issued shares pro rata.
These shares, it was held by Lord Sumner, were dividend.
It was claimed in that case that there was no dividend and no distribution of dividend, because nothing had been distributed and nothing given.
Where formerly there was one share, after the declaration of bonus there were two but the right of participation was the same.
This argument was not accepted and the face value of the shares was taken to be dividend.
Section 2 of the Act of Western Australia, however, defined dividend to include "every profit, advantage or gain intended to be paid or credited to or distributed among the members of any company.
" It is obvious that it was im possible to hold that the bonus shares were outside the extended definition.
Swan Brewery 's(1) case has been accepted as rightly decided on the special terms of the section, as indeed it was.
In Blott 's(2) case, Rowlatt, J. observed that the bonus shares were included in the expression "advantage" occurring in the (1) (2) 8 Tax Cases 101.
222 highly artificial definition of the word "dividend".
In the Court of Appeal, Lord Sterndale, M. R. and Warrington and ' Scrutton, L. JJ. distinguished the case on the same ground.
It was, however, pointed out by the Master of Rolls that in Bouch vs Sproule(1) Lord Herschell had observed that in such a case, the company does not pay or intend to pay any sum as dividend but intends to and does appropriate the undivided profits and deals with them as an increase of the capital stock in the concern.
Blott 'S(2) case then reached the House of Lords.
It may be pointed out at this stage that it involved a question whether super tax was payable on the amount represented by the face value of the bonus share.
For purposes of assessment of supertax which was (as it is in our country) a tax charged in respect of income of an individual the total of all income from all sources had to be taken into account and the tax was exigible if the total increased a certain sum.
Such additional duty is really nothing but additional income tax and is conveniently described as super tax.
Viscounts Haldane, Finlay and Cave held that an amount equal to the face value of the shares could not be regarded as received by the tax payer and that there was no more than the capitalisation of the profits of the company in respect of which certificates were issued to the shareholders entitling them to participate in the amount of the reserve but only as part of the capital.
Lords Dunedin and Sumner, however, held that the word "capitalisation" was somewhat "hazy" and the issue of the shares involved a dual operation by which an amount was released to the shareholder but was retained by the company and applied in payment of those shares.
In our opinion, and we say it respectfully, the better view is that of the majority and our conclusions set out earlier accord substantially with it.
It follows that though profits are profits in the hands of the company but when they are disposed of by converting them into capital instead of paying them over to the share holders, no income can be said to accrue to the shareholder because the new shares confer a title to a larger proportion of the surplus assets at a general distribution.
The floating capital used in the company which formerly consisted of subscribed capital and the reserves now becomes the subscribed capital.
The amount said to be payable to the shareholders as income goes merely to increase the capital of the company and in the hands of the shareholders the certificates are property from which income will be derived.
Lord Dunedin did not rely upon Swan Brewery 's(3) case.
He held that as the company could not pay for another, the shareholder must be taken to have paid for the bonus shares himself and the payment was (2 ) 8 Tax Cases 101.
(3) 223 the amount which came from the accumulated profits as pro fits.
Lord Sumner, however, stated that in Swan Brewery 's(1) case, he did not rely upon the extended definition of dividend in the Australian Statute, but upon the principle involved.
He observed that as a matter of machinery, what was done was to keep back the money released to the shareholder for application towards payment for the increased capital.
Lord Sumner had already adhered to his view in an earlier case of the Privy Council, but Swan Brewery 's(1) case and Blott 's(2) case were considered by the Privy Council in Com missioner of Income tax, Bengal vs Mercantile Bank of India Ltd. and others(3).
Lord Thankerton distinguished Swan Bre wery 's(1) case and followed Blott 's(2) case, though in Nicholas vs Commissioner of Taxes of the State of Victoria(4), Blott 's (2) ,case was distinguished on the ground that the definition in the Unemployment Relief Tax (Assessment) Act, 1933 also included within a person 's assessable income "any dividend, interest, profit or bonus credited, paid or distributed to him by the company from any profit derived in or from Victoria or elsewhere by it", and that bonus shares must be regarded as dividend under that definition.
The Indian Income tax Act defines "dividend" and also extends it in some directions but not so as to make the issue of bonus shares a release of reserves as profits so that they could be included in the term.
The face value of the shares cannot therefore be taken to be dividend by reason of anything in the definition.
The share certificate which is issued as bonus entitles the holder to a share in the assets of the company and to participate in future profits.
As pointed out above, if sold, it may fetch either more or less.
The market price is affected by many imponderables, one such being the yield or the expected yield.
The detriment to the shareholder, if any, must therefore be calculated on some principle, but the method of computing the cost of bonus shares at their face value does not accord either with fact or business accountancy.
Can we then say that the bonus shares are a gift and are acquired for nothing? At first sight, it looks as if they are so but the impact of the issue of bonus shares has to be seen to realise that there is an immediate detriment to the shareholder 'in respect of his original holding.
The Income tax Officer, in this case, has shown that in 1945 when the price of shares became stable it was Rs. 9 per share, while the value of the shares before the issue of bonus shares was Rs. 18/ per share.
In other words, by the issue of bonus shares pro rata, which Tanked pari passu with the existing shares, the market price was exactly halved, and divided between the old and the bonus shares.
This will ordinarily be the case but not when the shares (1)(1914) A.C. 231.
(3)(1936) A.C. 478.
(2) 8 Tax Cases 101.
(4) 224 do not rank pari passu and we shall deal with that case separately.
When the shares rank pari passu the result may be stated by saying that what the shareholder held as a whole rupee coin is held by him, after the issue of bonus shares, in two 50 nP coins.
The total value remains the same, but the evidence of that value is not in one certificate but in two.
This was expressed forcefully by the Supreme Court of United States of America, quoting from an earlier case, in Eisner vs Macomber(1) thus: "A stock dividend really takes nothing from the property of the corporation, and adds nothing to the interests of the shareholders.
Its property is not diminished, and their interests are not increased.
The proportional interest of each shareholder remains the same.
The only change is in the evidence which represents that interest, the new shares and the original shares together representing the same proportional interest that the original shares represented before the issue of the new ones In short, the corporation is no poorer and the stock holder is no richer than they were before If the plaintiff gained any small advantage by the change, it certainly was not an advantage of $417,450 the sum upon which he was taxed What has happened is that the plaintiff 's old certificates have been split up in effect and have diminished in value to the extent of the value of the new.
necessarily disposes of a part of his capital interest, just as if he should sell a part of his old stock, either before or after the dividend.
What he retains no longer entitles him to the same proportion of future dividends as before the sale.
His part in the control of the company likewise is diminished.
" Swan Brewery 's (2) case, it may be pointed out, was distinguished here also on the basis of the extended definition.
it follows that the bonus shares cannot be said to have cost nothing to the shareholder because on the issue of the bonus shares, there is an instant loss to him in the value of his original holding.
The earning capacity of the capital employed remains the same, even after the reserve is converted into bonus shares.
By the issue of the bonus shares there is a corresponding fall in the dividends actual or expected and the market price moves accordingly.
The method of calculation which places the value of bonus shares at nil cannot be correct.
(1) L.Ed. 521.
(2)(1914) A.C. 231.
225 This leaves for consideration the other two methods.
Here we may point out that the new shares may rank pari passu with old shares or may be different.
The method of cost .accounting may have to be different in each case but in essence and principle there is no difference.
One possible method is to ascertain the exact fall in the market price of the shares already held and attribute that fall to the price of the bonus shares.
This market price must be the middle price and not as represented by any unusual fluctuation.
The other method is to take the amount spent by the shareholder in acquiring his original shares and to spread it over the old and new shares treating the new as accretions to the old and to treat the cost price of the original shares as the cost price of the old shares and bonus shares taken together.
This method is suggested by the Department in this case.
Since the bonus shares in this case rank pari passu with the old shares there is no difficulty in spreading the original cost over the old and the new shares and the contention of the Department in this case is right.
But this is not the end of the present discussion.
This simple method may present difficulties when the shares do not rank pari passu or are of a different kind.
In such cases, it may be necessary to compare the resultant price of the two kinds of shares in the market to arrive at a proper cost valuation.
In other words, if the shares do not rank pari passu, assistance may have to be taken of other evidence to fix the cost price of the bonus shares.
It may then be necessary to examine the result as reflected in the market to determine the equitable cost.
In England paragraph 10 of Schedule Tax to the Finance Act, 1962 provides for such matters and for valuing Rights issue but we are not concerned with these matters and need not express an opinion.
It remains to refer to three cases to which we have already referred in passing and on which some reliance was placed.
In The Commissioner of Income tax (Central), Bombay vs M/s Maneklal Chunnilal and Sons Ltd., Bombay(1), the assessee held certain ordinary shares of the face value of Rs. 100/ in Ambica Mills Ltd. and Arvind Mills Ltd. These two com panies then declared a bonus and issued preference shares in the proportion of two to one of the face value of Rs. 100/ each.
These preference shares were sold by the assessee and if the face value was taken as the cost, there was a small profit.
The Department contended that the entire sale proceeds were liable to be taxed, because the assessee had paid nothing for the bonus shares and everything received by it was profit.
The assessee 's view was that the cost was equal to the face value of the shares.
The High Court rejected both these contentions and held that the cost of the shares previously held must be divided between those shares and the bonus shares in the same (1)I.T. Ref.
No. 16 of 1948 d. 23rd March 1949.
226 proportion as their face value, and the profit or loss should then be found out by comparing the cost price calculated on this basis with the sale price.
In our opinion, there is difficulty in the High Court 's decision.
The preference shares and the ordinary shares could hardly be valued in the proportion of their face value.
The ordinary shares and the preference shares do not rank pari passu.
The next case is Emerald Co. Ltd. vs C.I.T., Bombay City(1).
In that case, the assessee had, at the beginning of the year, 350 shares of which 50 shares were bonus shares and all were of the face value of Rs. 250/ each.
The assessee sold 300 shares and claimed a loss of Rs. 35,801 / by valuing the bonus shares at face value.
The Department arrived at a loss of Rs. 27,766/ by the method of averaging the cost, following the earlier case of the Bombay High Court just referred to.
The Tribunal suggested a third method.
It ignored the 50 shares and the loss was calculated by considering the cost of 300 shares and their sale price.
The loss worked out at Rs. 27,748/ , but the Tribunal did not disturb the order of the Appellate Assistant Commissioner in view of the small difference.
The High Court held that the method adopted by the Department was proper but this Court, on appeal, held that in that case the method adopted by the Tribunal was correct.
This Court did not decide which of the four methods was the proper one to apply, leaving that question open.
The reason was that the assessee originally held 50 shares in 1950; in 1951, it received 50 bonus shares.
It sold its original holding three days later and then purchased another 100 shares after two months.
In the financial year 1950 51 (assessment year 1951 52), the Income tax Officer averaged the price of 150 shares and found a profit of Rs. 1,060/ on the sale of 50 shares instead of a loss of Rs. 1,365/ which was claimed.
The assessee did not appeal.
In the financial year 1951 52 (assessment year 1952 53), the assessee started with 150 shares (100 purchased and 50 bonus).
It then purchased 200 shares in two lots and sold 300 shares, leaving 50 shares.
The assessee company claimed a loss of Rs. 35,801 / .
The Income tax Officer computed the loss at Rs. 27,766/ and the Tribunal computed the loss at Rs. 27,748 The Tribunal, however, did not disturb the loss as computed by the Income tax Officer in view of the slender difference of Rs. 18/ .
The High Court 's decision was reversed by this Court, because the High Court ignored all intermediate transactions and averaged the 300 shares with the 50 bonus shares.
The shares in respect of which the bonus shares were issued were already averaged with the bonus shares.
This was not a case of bonus shares issued in the year of account.
It involved purchase and sale of some of the shares.
The average cost price of the original and bonus shares was (1)(1956) 227 already fixed in an earlier year by the Department and this fact should have been taken into account.
No doubt, Chagla, C.J. observed that it was not known which of the several :shares were sold in the year of account, but in the Statement of the Case it was clearly stated that bonus shares were untouched.
The decision of this Court in Emerald Company 's(1) case.
however, lends support to the view which we have expressed here.
The bonus shares can be valued by spreading the cost of the old shares over the old shares and the new issue taken together, if the shares rank pari passu.
When they do not, the price may have to be adjusted either in the proportion of the face value they bear (if there is no other circumstance differentiating them) or on equitable considerations based on the ,market price before and after the issue.
Applying the principles to the present case, the cost of 31,909 shares, namely, Rs. 5,84,283/ must be spread over those shares and the 31,909 bonus shares taken together.
The ,cost price of the bonus shares therefore was Rs. 2,92,141 /because the bonus shares were to rank equal to the original ,shares.
The account would thus stand as follows: Share in Rohtas Industries Ltd. Rs. 1 .
Old issue of 17,259 shares brought forward from 1945, at (proportionate) cost 1,58, 035 2.
Bonus shares 31,909 received in 1945, at (proportionate, spread out) cost 2,92,141 3.
New issue 59,079 shares brought forward from 1945 8,88,561 4.
New purchases 2,500 shares brought forward from 1947 39,300 Total 1,10,747 shares 13,78,037 Sales of all theabove shares in 1948 15,50,458 Profit 7,444 Profit to be added to the income returned 1,79,865 The answer to the question given by the High Court was therefore erroneous and the right answer would be that the profit computed at Rs. 3,11,646/ was not in accordance with law.
The appeal is therefore allowed with costs here and in the High Court.
Appeal allowed.
|
The assessee company dealt in shares and also held invest ments of shares on January 1, 1948.
The assessee held 1,10,747, shares of Rohtas Industries at a book value of Rs. 15,57,902/ .
Of these shares 31,909 were bonus shares issued by Rohtas Industries in 1945 at the face value of Rs. lo/, each and the assessee had debited the investment account in respect of the bonus shares by Rs. 3,19,090 with a corresponding entry in the capital reserve account on its credit side for the same amount.
The assessee acquired these bonus shares at a cost of Rs. 5,84,283 in 1944.
On January 29, 1948, the assessee sold the entire lot of 1,10,747 shares for Rs. 15,50,458.
The assessee deducted the sale price from the book value of Rs. 15,57,902 and claimed a loss of Rs. 7,444 on the sale of shares.
The appellate Tribunal valued the bonus shares at nil and held that the assessee had made a profit of Rs. 3,11,646/ .
On a reference the High Court held that the Tribunal was wrong in holding that the assessee had made a profit of Rs. 3,11,646/ .
Held (per Hidayatullah and Shah, JJ.): (i) The Income tax Act defines "dividend" and also extends it in some directions but not so as to make the issue of bonus shares a release of reserves as profits so that they could be included in the term.
The face value of the shares cannot therefore be taken to be dividend by reason of anything in the definition.
The shares certificate which is issued as bonus entitles the holder to a share in the assets of the company and to participate in future profits.
The bonus share when sold may fetch more or may fetch less than the face value, and this shows that the certificate is not a voucher to receive the amount mentioned on its face.
The market price is affected by many imponderables, one such being the yield or the expected yield.
The detriment to the share holder, if any, must therefore be calculated on some principle, but the method of computing the cost of bonus shares at their face value does not accord either with fact or business accountancy.
Swan Brewery Co. Ltd. vs Rex , disapproved.
Commissioner of Inland Revenue vs John Blott, 8 Tax Cases 101, approved.
Bouch V. Sproule, , referred to.
Commissioner of Income tax, Bengal vs Mercantile Bank of India Ltd., and Nicholas vs Commissioner of Taxes of the State of Victoria, , referred to.
(ii) The bonus shares cannot be said to have cost nothing to the share holder because on the issue of its bonus shares, there is an instant loss to him in the value of his original holding.
The earning capacity of the capital employed remains the same, even after the reserve is converted into bonus shares.
By the issue of the bonus shares there is a corresponding fall in the dividends 211 actual or expected and the market price moves accordingly.
The method of calculation which places the value of bonus shares, at nil cannot be correct.
(iii) The bonus shares can be valued by spreading the cost of the old shares over the old shares, and the new issue taken together, if the shares rank pari passu.
When they do not, the price may have to be adjusted either in the proportion of the face value they bear (if there is no other circumstances differentiating them) or on equitable considerations based on the market price before and after the issue taking the middle price not that represented by any unusual fluctuations.
On the facts of this case it was held that since the bonus shares in this case rank pari passu with the old shares there is no difficulty in spreading the original cost over the old and the new shares.
Commissioner of Income tax vs Maneklal Chunilal and Sons, Income tax Reference No. 16/1948, dt. 23 3 1949, disapproved.
Emerald and Co. Ltd. vs Commissioner of Income tax, Bombay City, , distinguished.
Eisner vs Macomber, L.Ed. 521, referred to.
Per Sarkar, J. (dissenting): (i) The view taken by the majo rity of Judges in Blott 's case is a correct one.
In that case the learned Judges held that when the articles of a company authorise the issue of bonus shares and the transfer of a sufficient amount out of the accumulated profits in its hands representing their face value to the share capital account, what happens when the articles are acted upon is a capitalisation of the profits and the bonus shares issued are not in the hands of the share holder income liable to tax.
Following the majority opinion in Blott 's case it was held that the High Court was in error in the view it took in the present case.
There is no foundation for proceeding on the basis as if the bonus shares had been acquired by the assessee at their face value.
Its profits cannot be computed on that basis.
Commissioner of Inland Revenue vs Blott (1921)2 A.C. 171, relied on.
Swan Brewery Co. Ltd. vs King , disapproved.
Osborne (H.M. Inspector of Taxes) vs Steel Barrel Co. Ltd., , inapplicable.
Commissioner of Inland Revenue vs Fisher 's Executors, ; and Commissioner of Income tax, Bengal vs Mer cantile Bank of India Ltd., , referred to.
Commissioner of Income tax vs Maneklal Chunilal and Sons Ltd., I.T. Ref.
No. 16 of 1948 and Emerald and Co. Ltd. vs Commissioner of 1ncome tax, Bombay City, , referred to.
(ii) Bai Shirinbai Kooka 's case is the authority for the proposition that where it cannot be shown what was paid for the acquisition of a trading asset by a trader, it has for tax purposes to be deemed to have been acquired at the market value of the date when it was acquired.
On the basis of this authority the Bonus shares must in the present case be deemed to have been acquired at the market value of the date of their issue.
(iii) On the basis of the same authority, it would not be correct to say that the bonus shares had been acquired for nothing.
212 The view taken by the Appellate Commissioner and the Tribunal cannot be supported.
Commissioner of Income tax vs Bai Shirinbai K. Kooka, [1962] Supp.
3 S.C.R. 391, relied on.
|
: Criminal Appeal Nos.
287 288 of 1978.
From the Judgment and Order dated 14.10.1977 of the Allahabad High Court in Criminal Appeal Case No. 2242 of 1972.
966 Frank Anthony, Sushil Kumar and J.K. Das for the Appel lant in Crl.
A.No. 287 of 1978.
U.R. Lalit, S.K. Bisaria and A.D. Malhotra for the Appellant in Crl.
288 of 1978.
Prithvi Raj, C.P. Mittal and Dalveer Bhandari for the Re spondent.
The Judgment of the Court was delivered by NATARAJAN, J.
These Appeals by Special Leave arise out of a common judgment rendered by the Allahabad High Court in three Criminal Appeals filed before it by the appellants and one Raj Kishore.
Appellant Subash and appellant Shiv Shankar were convicted alongwith Raj Kishore by the 4th Additional Sessions Judge, Bareilly under Section 302 read with Section 34 Indian Penal Code and Section 324 read with Section 34 Indian Penal Code respectively for having committed the murder of one Ram Babu and for having caused hurt with a knife to witness Dinesh Shankar.
For the said convictions they were awarded imprisonment for life and three year 's R.I., respectively and the sentences were ordered to run concurrently.
One Om Kumar who was also sent up for Sessions trial under the two charges mentioned above was acquitted by the Sessions Judge.
The three convicted persons preferred appeals to the High Court and the High Court has confirmed the convictions and sentences awarded to Subash and Shiv Shankar but acquitted Raj Kishore.
The offences in question were committed on March 12, 1971 i.e., a day after Holi Festival at about 11 a.m. on the Bareilly Nainital Road in Bareilly.
The prosecution case was that while Shiv Shankar caught hold of Ram Babu, Subash, Raj Kishore and Om Kumar repeatedly stabbed him with knives and caused fatal injuries to him.
When Dinesh Shankar (P.W. 2) tried to intercede he was also stabbed by Subash and caused an injury.
Besides, Dinesh Shankar (P.W. 2) the occurrence was witnessed by an uncle of Ram Babu viz.
Budh Sen (P.W. 1) and Shyam Behari (P.W. 3) and some others.
Ram Babu and Dinesh Shankar were taken to the hospital but Ram Babu was pronounced dead in the hospital.
The motive for the occur rence was that about 15 or 20 days prior to the occurrence Ram Babu had given a machine part to Subash for being welded but Subash failed to carry out the work; nevertheless he refused to return the machine part without the repair charges being paid to him.
Ram Babu refused to pay the charges and there was an altercation but the parties were pacified by 967 Dinesh Shankar and Ram Babu took away the machine part without paying any charges to Subash.
The quarrel had taken place about 3 or 4 days before the occurrence.
Bearing this grudge in mind, when Ram Babu, accompanied by Budh Sen and Dinesh Shankar was proceeding to Qutabkhana to witness the Holi celebrations, Subash assisted by his three companions attacked Ram Babu in the manner set out earlier and caused fatal injuries to him.
There were as many as 14 injuries on Ram Babu among which 7 were punctured wounds.
Among the punctured wounds, injury nos.
7 and 8 were deep injuries which had injured the pleura, left lung, pericardium and the heart.
These injuries were certified to be sufficient in the ordinary course of nature to cause death.
Dinesh Shankar (P.W. 2) also had sustained an incised wound on his left thigh.
Budh Sen (P.W. 1) got a report Exhibit Kha 1 written by his son and presented it at the Police Station at 1.12 p.m.
Therein he has stated that accused Subash was known to him but the other three assailants were not known to him but another witness Bhuvan Chand examined as C.W. 1, had in formed him that one Raja Ram was one of the assailants of Ram Babu.
It would appear that subsequently Bhuvan Chand refused to testify out of fear of the accused and hence he was not cited as a witness in the charge sheet.
Even so, having regard to the averments in Exhibit Kha 1, the Ses sions Judge examined Bhuvan Chand as a court witness.
He, however, failed to corroborate Budh Sen and stated that he did not know anything about the occurrence.
Subash was absconding and he surrendered before the court on 12.3.71.
He was subsequently questioned by the Investigating Officer and he gave information regarding the names and addresses of the other three assailants.
Raj Kishore was arrested on 23.5.1971 and Shiv Shankar was arrested on 14.6.71 from the office of the Central Excise, Bareilly where he was employed.
Om Kumar surrendered himself in Court on 15.7.71.
Test identification parades were held for Raj Kishore and Shiv Shankar on 5.5.71 wherein Shiv Shankar was identi fied by Budh Sen, Dinesh Shankar and Shyam Behari but Raj Kishore was identified only by Dinesh Shankar.
In the subse quent test identification parade held for Om Kumar on 27.7.71 none of the witnesses was able to identify him.
The defence of all the accused was one of denial.
Since accused Om Kumar was not identified by any of the witnesses at the test identification parade and since his name was not 968 mentioned in Exhibit Kha 1 the Sessions Judge acquitted him of the charges and convicted only the two appellants and Raj Kishore.
The High Court acquitted Raj Kishore because he had been identified only by Dinesh Shankar and not by the other witnesses but, however, confirmed the conviction of these two appellants and it is against such confirmation by the High Court, the appellants have preferred these Appeals.
Before dealing with the case of Subash we can conven iently deal with the appeal of Shiv Shankar.
Admittedly he was not known to any of the eye witnesses and his name does not also find a place in the First Information Report Exhib it Kha 1.
His name came to be known only through Subash when he was questioned in the jail on 7.4.1971.
Even if it were so, it is not understandable why the Investigating Officer should have taken three weeks to question Subash after his surrender in Court on 17.3.1971.
Be that as it may, even after getting the name and address of Shiv Shankar from Subash, the Investigating Officer has failed to trace him and arrest him till 14.6.1971.
Shiv Shankar was an employee in the office of the Central Excise Department at Bareilly itself.
It is, therefore, difficult to believe that the Investigating Officer would not have been able to trace him and arrest him for nearly 9 weeks after coming to know of Shiv Shankar 's name and address from Subash.
As a matter of fact, the Investigating Officer has stated in his evidence that he visited the house of Shiv Shankar two or three times to arrest him but Shiv Shankar was not to be found.
If Shiv Shankar was absent from the house the Investigating Officer could have easily learnt from the neighbours where he was working and where he had gone and located him and arrested him.
It is not the prosecution case that Shiv Shankar was absconding.
In such circumstances it is difficult to accept the prosecution case that the Investigating Officer could not trace and arrest Shiv Shankar till 14.6.71 in spite of coming to know on 7.4.71 itself that he was one of the assailants of Ram Babu.
Apart from this infirmity we further find that Shiv Shankar was not put up for test Identification parade promptly.
The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade.
There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock up or in the jail premises and make a note of his features.
Over and above all these things there remains the fact that a 969 sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade.
It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval.
It is relevant to mention here that neither in Exhibit Kha I nor in their statements during investigation, the eye witnesses have given any descriptive particulars of Shiv Shankar.
While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had 'sallow ' complexion.
If it is on account of these features the witnesses were able to identi fy Shiv Shankar at the identification, parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then.
Thus in the absence of any descriptive particulars of Shiv Shan kar in Exhibit Kha 1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three wit nesses at the identification parade and hold that he was one of the assailants of Ram Babu.
As pointed out in Muthu Swami vs State of Madras, A.I.R. 1954 S.C 4 where an identifica tion parade is held about 2 1/2 months after the occurrence it would not be safe to place reliance on the identification of the accused by the eye witnesses.
In another case Mohd. Abdul Hafeez vs State of Andhra Pradesh, A.I.R. 1983 S.C. 361 it was held that where the witnesses had not given any description of the accused in the First Information Report, their identification of the accused at the Sessions trial cannot be safely accepted by the court for awarding convic tion to the accused.
In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.
Mr. U.R. Lalit, learned counsel for Shiv Shankar further contended that Shiv Shankar had certain distinctive features like scars on the face, reddish lips etc., and these marks of identification should have been furnished to the witness es before they were called upon to identify Shiv Shankar at the identification parade.
We do not think it necessary to go into the merits of this argument in the light of our conclusion already reached.
As the conviction of Shiv Shan kar is based solely with reference to his identification at the identification parade, he has to be given the benefit of doubt and acquitted in the light of our finding.
According ly, Shiv Shankar 's appeal has to succeed.
970 Coming now to the appeal of Subash it was strenuously contended by Mr. Frank Anthony, learned counsel that the prosecution evidence suffers from numerous infirmities and as such the Sessions Judge and the High Court ought not to have convicted him.
His further argument was that in any case the benefit of doubt given to Om Kumar and Raj Kishore, ought to have been given to Subash also.
Mr. Anthony argued that Exhibit Kha 1 could not have been given at 1.12 p.m. because there is no evidence to show when the report was sent to the Magistrate and when it was received by him.
The learned counsel referred to Gurdev Singh and others vs The State, [1963] Punjab Law Reporter, 409 where the dangers ensuing from a First Information Report not being lodged promptly have been pointed out.
We are unable to accept the argument of Mr. Anthony because there are no materials to warrant an inference that Exhibit Kha 1 had been given later but ante dated to cover up the delay in making the report.
It is true that the First Information Report sent to Court does not contain the Magistrate 's endorsement regarding the time of its receipt, but Ram Kishan, Head Constable (P.W. 5) has deposed that the special report was despatched to the Magistrate at 1.20 p.m. itself through constable Chiman Lal and that the General Diary contains an entry to that effect.
It was seriously urged by Mr. Anthony that the motive put forward for the occurrence Was of a flimsy nature and it is unbelievable that for non payment of repair charges Subash would have attacked Ram Babu along with his compan ions.
This argument has to fail because Dinesh Shankar has clearly deposed that there was an altercation between Subash and Ram Babu there on four days earlier and Ram Babu took away the machine part without paying repair charges to Subash.
There is, therefore, nothing improbable in Subash having nurtured a grievance against Ram Babu and wanting to settle scores with him.
The evidence of the eye witnesses is clearly to the effect that Subash told his companions on seeing Ram Babu, that he is the person who had quarrelled with him and taken away the machine part without paying the repair charges.
Making common cause of his grievance Su bash 's companions had also joined him in perpetrating an attack on Ram Babu.
The intent of Subash in launching an attack on Ram Babu can be gauged from the fact that when Dinesh Shankar tried to intervene, he had prevented him and inflicted a stab injury on him also.
The further argument of Mr. Anthony was that Budh Sen did not have proper eye sight, that Shyam Behari was a chance witness and 971 that Bhuvan Chand named in Exhibit Kha 1 had failed to support the prosecution case and as such there is no accept able evidence to convict Subash.
He also stated that even though Dinesh Shankar is an injured witness, there is no guarantee his evidence is truthful.
None of these conten tions in our opinion, has any merit.
Budh Sen has stated that his eye sight is poor without glasses but with specta cles he can see well.
It is not the case of the appellant that Budh Sen was not wearing his spectacles at the time of the occurrence.
In so far as Dinesh Shankar and Shyam Behari are concerned, their presence at the scene cannot admit any doubt because their names find a place in Exhibit Kha I. Moreover Dinesh Shankar has sustained an injury on his left thigh.
The evidence of these witnesses has been accepted by the Session Court and the High Court and we see no reason to take a different view.
In so far as Bhuvan Chand (C.W. 1) is concerned, the prosecution has satisfactorily explained why he was not cited as a witness.
He had no doubt furnished the name of Raja Ram alias Raj Kishore to Budh Sen but he subse quently backed out fearing reprisal at the hands of the accused.
Mr. Anthony argued that even if his contentions are not accepted, Subash can be convicted only for an offence under Section 324 Indian Penal Code for the injury caused to Ram Babu as well as Dinesh Shankar.
We may mention here that the Sessions Judge had framed a separate charge against the appellant Subash under Section 324 Indian Penal Code in addition to the charge under Section 302 read with Section 34 Indian Penal Code.
Mr. Anthony invited our attention to State of U.P. vs Hari Prasad, ; and Ugar Ahir vs State of Bihar, A.I.R. 1965 S.C. 277 to contend that when the sub stratum of the prosecution case fails, the entire case has to fail.
We find the facts in those cases were entirely different and hence they can have no relevance to this appeal.
In the present case, the prosecution version fully survives in spite of the acquittal of the other ac cused for want of proof of indentity.
The last argument of Mr. Anthony was that in any event when the other accused persons are acquitted, Subash alone cannot be convicted under Section 302 read with Section 34 Indian Penal Code in the absence of evidence to show that he caused any of the fatal injuries on Ram Babu.
This argument is devoid of any merit.
The case of Subash stands on a different footing from that of the other accused because he has been clearly named and the particulars of his profession and address have been furnished in Exhibit Kha 1.
All the witnesses have stated that he was known to all of them.
In contrast the names of the other accused were not known to the eye witnesses and the name of Raj Kishore alone had been furnished to Budh Sen by Bhuvan Chand.
972 Besides attacking Ram Babu Subash had also attacked Dinesh Shankar.
He was absconding and had later surrendered himself in court.
No test identification parade was held for him because his identity was never in doubt.
He had a grudge against Ram Babu and it was on his instigation the attack on Ram Babu had been launched.
His case, therefore, stands on a distinctively different footing from that of the other accused persons.
Even though the other accused are acquitted it is only for want of proof of their identity and not because the eye witnesses had not seen the occurrence or that the occurrence had taken place in a different manner.
Subash cannot, therefore, escape the consequences of the attack jointly committed by him and his accomplices in furtherance of their common intention even though the other accused stand acquitted for want of acceptable proof of their identity.
Mr. Anthony referred us to the decision in Vijay Kumar vs State of J & K, A.I.R. 1982 S.C. 1022 to contend that when the other accused stand acquitted Subash also should be acquitted of the charge under Section 302 read with Section 34 Indian Penal Code.
The facts in that case bear no comparison with the facts in this case.
On the other hand Amir Hussain vs State of U.P., A.I.R. 1975 S.C. 2211 will be the decision apt for consideration in this case.
In the above case 10 persons were acquitted by the Sessions Judge and three alone were convicted under Section 302 read with Section 34 Indian Penal Code.
Among those three, two were acquitted by the High Court and consequently only one of the accused stood convicted.
The said accused appealed to this court and contended that since the other two accused had been acquitted, he should also be acquitted of the charge under Section 302 read with Section 34 Indian Penal Code.
Repelling the contention this Court held as follows: "Much stress has been laid on behalf of the appellant upon the fact that despite the evidence of the above mentioned four eye witnesses, the High Court has acquitted Kari muddin and Mohd. Ibrahim accused.
It is, in our view, not necessary to express an opinion on the point as to whether those two accused were rightly acquitted or not.
All that we can say is that the benefit of doubt which resuit ed in the acquittal of the other two accused would not vitiate the conviction of the appel lant in case the evidence adduced against him is found to be satisfactory and convincing.
The material on record establishes that the appellant had a motive to join in the assault on Ibrahim Pradhan.
The appellant held out a threat and report about it was lodged by Ibrahim deceased at the police station about 973 3 1/2 months prior to the present occurrence.
The evidence about the motive lends assurance to the evidence of the eye witnesses regarding the complicity of the appellant.
We would, therefore, maintain the conviction of the appellant.
As regards the sentence, it may be stated that the only injury which is attribut ed to the appellant is an incised wound on the right arm of Ibrahim.
The incised wound which was found on the scalp of Mehandi Hasan was ascribed by the eye witnesses to Karimuddin who has been acquitted.
In view of the fact that a comparatively minor injury was at tributed to the appellant and he is being vicariously held liable for the fatal injuries caused by the other culprits, we consider it to be a fit case in which we might substitute the lesser sentence for the extreme penalty of death.
We accordingly maintain the conviction of the appellant but reduce his sentence to that of imprisonment for life.
" We are, therefore, of the view that even though the other accused stand acquitted and even though there is no evidence that Subash caused one of the fatal injuries, he cannot escape conviction under Section 302 read with Section 34 Indian Penal Code when his participation with three other assailants in the attack on Ram Babu has been established beyond reasonable doubt by the prosecution.
We, therefore, confirm his convictions and the sentences awarded therefor.
In the result Crl.
Appeal No. 287 of 1978 will stand dismissed while Crl.
Appeal No. 288 of 1978 will stand allowed.
Appellant Subash will surrender himself to custody failing which he should be arrested for serving out the sentence.
Appellant Shiv Shankar will stand acquitted of the convictions under Section 302 read with Section 34 Indian Penal Code and 324 read with Section 34 Indian Penal Code and his bail bonds will stand cancelled.
N.P.V. Crl.
Appeal No. 287/78 dismissed.
Appeal No. 288/78 allowed.
|
The prosecution alleged that there was a dispute between the appellant in Appeal No. 287 of 1978 and the deceased in regard to payment of repair charges for a machine part and that three or four days later this appellant alongwith others attacked the deceased when he was accompanied by P.W. 1 and P.W. 2.
It was further alleged that while the appel lant in Appeal No. 288 of 1978 caught hold of the deceased, the appellant in the first appeal and two others repeatedly stabbed him with knives and caused several injuries.
P.W. 2 was also injured when he tried to intercede.
The deceased and P.W. 2 were taken to hospital where the deceased was pronounced dead.
P.W. 1 presented a complaint at the Police Station.
The appellant in the first appeal absconded and surren dered before the court later.
On questioning, he named the assailants, who were arrested on different dates.
Test indentification parades were held for two accused persons wherein the appellant in the second appeal was identified by three witnesses, but the other accused was identified by only of them.
In the subsequent identification parade held for another accused, none of the witnesses was able to identify him.
All the accused were tried and the two appel lants and another accused were convicted under Section 302 read with Section 34 Indian Penal Code and Section 324 read with Section 34 Indian Penal Code for having committed murder of the deceased and caused hurt with a knife to P.W. 2 and were awarded imprisonment for life and three years ' rigorous imprisonment respectively, the sentences to run concurrently.
The fourth accused who was not identified by any one of the witnesses at the identification 963 parade and whose name was not mentioned in the First Infor mation Report, was acquitted.
The High Court in appeal confirmed the conviction of the two appellants but acquitted the third accused on the ground that he had been identified by only P.W. 2 and not by other witnesses.
In the appeal to this Court, it was submitted on behalf of the appellant in Criminal Appeal No. 287 of 1978 that the prosecution evidence suffers from numerous infirmities and as such, the trial court and the High Court ought not to have convicted him, that in any case the benefit of doubt given to the two of the other accused ought to have been given to him, that there was an attempt to cover up the delay in making the report, that the motive put forward for the occurrence was of a flimsy nature and it was unbelieva ble that for non payment of repair charges the deceased would have been attacked alongwith his companions, that P.W. 1 did not have proper eye sight, that P.W. 3 was a chance witness and that C.W. 1 failed to support the prosecution case, and that even though P.W. 2 was an injured witness, there was no guarantee that his evidence is truthful.
It was further urged that the appellant could be convicted only for an offence under Section 324 Indian Penal Code for the injury caused to the deceased as well as P.W. 2, that as the sub stratum of the prosecution fails, the entire case had to fail and that when the other accused persons were acquitted, the appellant alone cannot be convicted under Section 302 read with Section 34 I.P.C., in the absence of evidence that he caused any of the fatal injuries on the deceased.
It was submitted on behalf of the appellant in Criminal Appeal No. 288 of 1978 that neither his name nor any of his characteristics were mentioned in the First Information Report by any of the eye witnesses, that he was falsely implicated, that there was no motive for him to murder the deceased, that one of the prosecution witnesses had alto gether denied his presence, that there was delay in his arrest and ho1ding of the identification parade and he was exposed to the identifying witnesses by not covering his distinctive features, that the prosecution had failed to prove beyond reasonable doubt his participation in the commission of the occurrence and that when the other ac cused, one of whose name figured in the First Information Report, were acquitted by giving the benefit of doubt.
he should also have been given the same benefit of doubt.
Dismissing the appeal of the appellant in Appeal No. 287 of 1978 and allowing the appeal of the appellant in Appeal No. 288 of 1978, this Court, 964 HELD: 1.
When participation of the appellant with the other assailants is established beyond reasonable doubt by the prosecution, he cannot escape the consequences of the attack committed by him and his accomplices in furtherance of their common intention and conviction under Section 302 read with Section 34 Indian Panel Code even though the other accused stand acquitted and even though there may be no evidence that the accused caused one of the fatal injuries.
[973E] 2.
The other accused were acquitted only for want of acceptable proof of their identity and not because the eye witnesses had not seen the occurrence or that the occurrence had taken place in a different manner.
Therefore, there is no merit in the contention that when the other accused persons were acquitted, the appellant in Criminal Appeal No.287 of 1978 alone cannot be convicted under Section 302 read with Section 34 Indian Penal Code, in the absence of evidence to show that he caused any of the fatal injuries on the deceased.
The appellant, therefore, cannot escape the consequences of the attack jointly committed by him and his accomplices in furtherance of the common intention.
[972B E] 3.
There is nothing improbable in the appellant having nurtured a grievance against the deceased and wanting to settle scores with him.
The evidence of the eye witnesses was clearly to the effect that the appellant told his com panions on seeing the deceased that he was the person who had quarreled with him and taken away the machine part without paying the repair charges.
Making common cause of his grievance, the appellant 's companions had also joined him in perpetrating an attack on the deceased.
The trial court and the High Court were right in accepting the evi dence of these witnesses.
[970F G] 4.
There is no merit in the contention that the appel lant can be convicted only for an offence under Section 324 Indian Penal Code for injury caused to the deceased as well as P.W. 2.
The trial court had framed a separate charge against the appellant under Section 324 Indian Penal Code in addition to the charge under Section 324 read with Section 34 Indian Penal Code.
There is also no merit in the conten tion that when the sub stratum of the prosecution case fails, the entire case has to fail.
The prosecution version fully survives in spite of the acquittal of the other ac cused for want of proof of identity.
[971 D F] 5.
Where there is delay in holding an identification parade, it would not be safe to place reliance on the iden tification of the accused by the eye witnesses.
[969D E] 965 6.
Where the witnesses had not given any description of the accused in the First Information Report or in the state ments during the investigation, their identification of the accused at the trial cannot be safely accepted by the court for convicting the accused.
[969E] 7.
The appellant in Criminal Appeal No. 288 of 1978 was not arrested for nearly nine weeks after coming to know of his name and address from the other appellant.
It was not the case of the prosecution that the appellant was abscond ing.
Apart from this infirmity, the appellant was not put up for test identification parade promptly and it was held three weeks after his arrest and no explanation was offered for the delay in holding it.
There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock up or in the jail premises and make a note of his features.
A sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen the appellant for a few minutes and the date of the identification parade.
[968D H; 969A] 8.
Although all the three witnesses had identified the appellant at the identification parade, after nearly four months, in the absence of any descriptive particulars of the appellant in the First Information Report or in the state ments of witnesses during the investigation, it would not be safe and proper to act upon the identification of the appel lant by the three witnesses at the identification parade and hold that he was one of the assailants of the deceased.
[969A D] 9.
As the conviction of the appellant was based solely with reference to his identification at the parade, he has to be given the benefit of doubt and acquitted.
[973E] Muthu Swami vs State of Madras, AIR 1954 SC 4; Mohd. Abdul Hafeez vs State of Andhra Pradesh, ; Gurdev Singh and others vs The State, 1963 Punjab Law Re porter, 409; State of U.P. vs Hari Prasad, ; ; Ugar Ahir vs State of Bihar, AIR 1965 SC 277; Vijay Kumar v: State of J & K, AIR 1982 SC 1022; and Amir Hussain vs State of U.P., AIR 1975 SC 2211, referred to.
|
ION: Civil Appeal No. 2966 of 1986.
From the Judgment and Order dated 26.9.1984 of the Allahabad High Court in Writ Petition No. 3921 of 1982.
R.N. Trivedi, Additional Advocate General, Gopal Subramaniam and Mrs. Shobha Dikshit for the Appellants.
B. Sen, D.P. Gupta, N.A. Raja Ram Aggarwal, N.R. Khaitan, E.D. Desai, Y.K. Khaitan, Jijina, Sandeep Aggarwal and T.N. Sen for the Respondents.
The following Judgments of the Court were delivered: SABYASACHI MUKHARJI, J.
This appeal by special leave is directed against the judgment and order of the High Court of Allahabad dated 26th September, 1984.
The first appellant is the State of Uttar Pradesh impleaded through the Chief Secretary to the Government of Uttar Pradesh, Lucknow.
The second appellant is the Secretary to the Government of Uttar Pradesh, Department of 635 Energy, Lucknow.
The third appellant is one Shri Yogendra Narain, presently acting as Secretary to the Chief Minister, State of Uttar Pradesh, Lucknow.
At a particular point of time Shri Yogendra Narain was the Secretary to the Department of Energy.
The fourth appellant is the Assistant Electrical Inspector, a functionary under the U.P. Electricity (Duty) Act, 1952, Mirzapur Zone, Rani Patti, Mirzapur.
The fifth appellant is the Collector of Mirzapur.
There are four respondents in this appeal.
The first respondent is Renusagar Power Company Ltd. The second respondent is M/s Hindustan Aluminium Corporation Ltd. Respondent No. 3 is Shri D.M. Mimatramka who resides at Hindalco Administrative Colony, Renukut, Mirzapur.
The fourth respondent is Shri Rajendra Kumar Kasliwal who resides at Hindustan Aluminium Corporation Ltd., Renukut, District Mirzapur.
Respondents 3 and 4 mentioned above are the shareholders of the first respondent and the second respondent, that is, Renusagar Power Company and M/s. Hindustan Aluminium Corporation Ltd. respectively.
It is stated that M/s Hindustan Aluminium Corporation Ltd., established and aluminium factory at Renukut in Mirzapur District, U.P. in 1959.
It is the case of the respondents that it was induced to do so on the assurance that cheap electricity and power would be made available at the relevant time.
In 1962, a plant of Hindustan Aluminium Corporation Ltd. for manufacture of aluminium, was commissioned.
M/s Renusagar Power Co. Ltd. a wholly owned subsidiary of M/s Hindustan Aluminium Corporation Ltd, was incorporated in 1964.
M/s Renusagar Power Company Ltd. was incorporated separately and had its own separate Memorandum and Articles of Association.
On 9th September, 1967, the first generating unit of 67.5 MW in Renusagar was commissioned by M/s Renusagar Power Company Ltd. The second generating unit of the company was commissioned on 5th October, 1968.
The U.P Electricity (Duty) Act, 1952 (hereinafter called 'the Act ') came into force from 15th January, 1953 and it sought to levy a duty on the consumption of electrical energy in the State of Uttar Pradesh.
In the Statement of Objects and Reasons, which was published in U.P. Gazette, it was stated that the programmes of development of the State involved enormous expenditure and.
thus additional resources had to be raised, the bulk of which could only be raised by means of fresh taxation.
It was stated that the object of the Bill, inter alia, provided as follows: "A tax on the consumption of electrical energy will impose 636 a negligible burden on the consumer and is a fruitful source of additional revenue.
The Bill has been so prepared as to ensure that the tax payable by a person will be related to the quantity of electricity consumed by him.
The Bill is being introduced with the above object.
" By virtue of the provisions of the U.P. Electricity (Duty) (Amendment) ordinance, 1959 various amendments were carried out in the said Act.
In section 2 of the principal Act, a new clause, clause (hh) describing a scheduled industry was inserted.
By virtue of the aforesaid newly inserted clause, the expression 'scheduled industry ' meant any of the industries specified in the schedule.
In the proviso to section 3 of the principal Act, after clause (d), a new clause (e) was inserted which provided for non levy or exemption from the payment of electricity duty on the energy consumed by a consumer in a scheduled industry.
The. expression which was added was "by a consumer in a scheduled industry".
By virtue of section 8 of the Amending Act, a schedule was added to the principal Act.
In the schedule, non ferrous metals and alloys were placed at serial No. 1 in Part of the schedule under a broad heading 'Metallurgical Industries '.
It appears, therefore, that by virtue of the aforesaid provisions electricity duty on the energy consumed by M/s Hindustan Aluminium Corporation Ltd. was exempted from 1st April, 1959, the date on which the ordinance came into force.
It was further stated that the U.P. Electricity (Duty) (Amendment) ordinance, 1959 was repealed and the provisions were incorporated into an amending Act, viz., U.P. Act No. 12 of 1959 and termed as the U.P. Electricity (Duty) (Amendment) Act, 1959.
By virtue of sub section (2) of section 1, the Amendment Act provided that the Act would be deemed to have come into force with effect from 1st April, 1959.
The amendment Act repealed the provisions of the U.P. Electricity (Duty) (Amendment) ordinance, 1959.
In section 2, after clause (d), the clause which was inserted as a new clause (e) provided that electricity duty would not be leviable on the consumption of energy by a consumer in any industry engaged in the manufacture, production, processing, or repair of goods.
Ordinance No. 14 of 1970 was promulgated on 5th August, 1970.
The provisions contained in the ordinance were subsequently incorporated in U.P. Act No. 2 of 1971.
The amended provisions of U.P. Act No. 2 of 1971 came into force from 1st April, 1970.
The Amendment Act was preceded by U.P. Ordinance No. 14 of 1970.
The ordinance was described as "the Uttar Pradesh Taxes and Fees Laws (Amendment) ordinance 1970.
"By virtue of Chapter III of the said ordinance, amendments were sought to be made to the Act.
Section 3 of the principal Act was 637 substituted by a new section which provided that there would be levied and paid to the State Government a duty called electricity duty on the energy sold to a consumer by a licensee/Board/the State Government the Central Government; there would be a duty on the consumption of energy by a licensee or the Board in or upon the premises used for commercial or residential purposes, or in or upon any other premises except "in the construction, maintenance or operation of his or its works", and there would be a duty upon the consumption of electricity by any other person from "his own source of generation.
" It was provided that a duty was to be determined at such rate or rates as may, from time to time, be fixed by the State Government by notification in the official gazette.
Sub section (2) of section 3 provided that in respect of certain classes of consumption the electricity duty would not exceed 25% of the rate charged.
It may be expedient to refer to the Prefatory Note of the Act which, inter alia, is as follows: "Prefatory Note: The minimum programme of development which this State must carry out within the next three or four years for the attainment of the objective of a welfare State is set out in the Five Year Plan drawn up by the Planning Commission.
This plan provides for an expenditure of 13.58 crores of rupees on power development projects.
Such a huge expenditure cannot be met from our present resources.
It is, however, essential for the welfare of the people that the expenditure should be incurred and that nothing should be allowed to stand in the way of the progress of the plan.
Additional resources have therefore to be found, the bulk, of which can be raised only by means of fresh taxation.
" Section 3 of the Act provides as follows: "3.
Levy of electricity duty. (1) Subject to the provisions hereinafter contained, there shall be levied for and paid to the State Government on the energy: (a) sold to a consumer by a licensee, the Board, the State Government or the Central Government; or (b) consumed by a licensee or the Board in or upon premises used for commercial or residential purposes, or in or 638 upon any other premises except in the construction, maintenance or operation of his or its works; or (c) consumed by any other person from his own source of generation; a duty (hereinafter referred to as 'electricity duty ') determined at such rate or rates as may from time to time be fixed by the State Government by notification in the Gazette, and such rate may be fixed either as a specified percentage of the rate charged or as a specified sum per unit.
Provided that such notification issued after October 1, 1984 but not later than March 31, 1985 may be made effective on or from a prior date not earlier than October 1, 1984.
(2) In respect of clauses (a) and (b) of sub section ( 1), the electricity duty shall not exceed thirty five per cent of the rate charged.
Provided that in the case of one part tariff where the rate charged is based on units of consumption, the electricity duty shall not be less than one paisa per unit or more than eight Paisa per unit.
Explanation For the purposes of the calculation of electricity duty as aforesaid, energy consumed by a licensee or the Board or supplied free of charge or at the concessional rates to his or its partners, directors, members, officers or servants shall be deemed to be energy sold to consumers by the licensee or the Board, as the case may be, at the rates applicable to other consumers of the same category.
(3) In respect of clause (c) of sub section (1), the electricity duty shall not be less than one paisa or more than six paisa per unit.
(4) The State Government may, in the public interest, having regard to the prevailing charges for supply of energy in any area, the generating capacity of any plant, the need to promote industrial production generally or any specified class thereof and other relevant factors, either fix 639 different rates of electricity duty in relation to different classes of consumption of energy or allow any exemption from payment thereof.
(5) No electricity duty shall be levied on (a) energy consumed by the Central Government or sold to the Central Government for consumption by that Government; or (b) x x x (c) energy consumed in the construction, maintenance or operation of any railway by the Central Government or sold to that Government for consumption in the construction, maintenance or operation of any railway; (d) by a cultivator in agricultural operations carried on in or near his fields such as the pumping of water for irrigation, crushing, milling or treating of the produce of those fields or chaffcutting.
(e) Energy consumed in light upon supplies made under the Janta Service Connection Scheme.
Explanation.
For the purposes of clause (e) "Janta Service Connection Scheme" means a scheme approved by the State Electricity Board for supplying Energy to Harijans, landless labourers, farmers (holding land not exeeeding one acre), members of armed forces (whether serving or retired), war widows and other weaker sections in district notified by the State Government.
" Section 4 of the Act read as follows: "4.
Payment of electricity duty and interest thereon. (1) The electricity duty shall be paid, in such manner and within such period as may be prescribed, to the State Government.
(a) where the energy is supplied or consumed by a licensee, by the licensee; 640 (b) where the energy is supplied by the State Government or the Central Government or is supplied or consumed by the Board, by the appointed authority; and (c) where the energy is consumed by any other person from his own source of generation, by the person generating such energy.
(2) Where the amount of electricity duty is not paid by the State Government within the prescribed period as aforesaid, the licensee, the Board or other person mentioned in clause (c) of sub section (1), as the case may be, shall be liable.
to pay within such period as may be prescribed, interest at the rate of eighteen per cent per annum on the amount of electricity duty remaining unpaid until payment thereof is made.
" Section 9 of the Act provides as follows: "Exemptions.
Nothing in this Act shall apply to any energy generated by a person for his own use or consumption or to energy generated by a plant having a capacity not exceeding two and a half killowatts.
" M/s. Renusagar Power Company Ltd. had in the meantime obtained a sanction under section 28 of the to engage in the business of supply of electricity to the second respondent, M/s. Hindustan Aluminium Corporation Ltd. By virtue of section 2(f) which defines a licensee for the purposes of the Duty Act to mean any person licensed under Part II of the and includes any person who has obtained sanction from the State Government under section 28.
Renusagar Power Company Ltd., the first respondent herein, was deemed to be a licensee for the purposes of the U.P. Electricity (Duty) Act.
By virtue of section 2(d) of the Act, M/s. Hindustan Aluminium Corporation Ltd. was a consumer since it was supplied energy by the licensee, M/s. Renusagar Power Company Ltd., the first respondent.
Thus, the consumption of electricity by M/s. Hindustan Aluminium Corporation Ltd. under a contract of sale by the licensee was exigible to duty.
In other words, clause (a) of sub section (1) of section 3 of the Act, as amended, came into operation and a levy of duty would take place on the energy sold, to a consumer by a licensee.
Clause (a) of sub section (1) of section 4 as newly added provided that where the energy was supplied by a 641 licensee, the licensee would be liable to pay electricity duty.
Thus, by virtue of the amended provisions of the Electricity (Duty) Act, M/s. Renusagar Power Co. Ltd. the first respondent herein was liable to pay electricity duty in respect.
Of its supplies to M/s. Hindustan Aluminium Corporation Ltd. In exercise of the powers conferred by the Amendment Ordinance (U.P. Ordinance No. 14 of 1970, the provisions of which were re enacted in U.P. Act No. 2 of 1971), the Governor on or about 25th August, 1970 passed an order that with effect from 1st September, 1970 the electricity duty on industrial consumption would be levied at one paisa per unit.
On 28th August, 1970, the Governor ordered in supersession of all the previous orders that with effect from 1st September, 1970 electricity duty on the energy consumed by the consumers would be levied at the rates specified therein.
There was further notification dated 30th September, 1970, issued in the name of the Governor modifying the terms of the notifications dated 25th August, 1970 and 28th August, 1970.
On or about 4th December, 1952 after the inauguration of the First Five Year Plan, electricity duty was imposed to gather additional revenue for attaining the objectives set out in the plan.
The U.P. Electricity (Duty) Act, 1952 was enacted on 4th December, 1952.
On 1st April, 1959 in order to mitigate the hardship which might be caused to certain industries in the State, the U.P. Electricity (Duty) (Amendment) Ordinance, 1959 (U.P. Ordinance No. 3 of 1959) was promulgated by the Governor of U.P.
By the aforesaid ordinance it was provided in the first proviso to section 3 of the principal Act that no duty shall be leviable on the energy consumed by a consumer in a Scheduled Industry, including Non ferrous Industries manufacturing Aluminium like that of respondent No. 2, Hindalco.
The aforesaid ordinance was substituted by the U.P. Electricity (Duty) (Amendment) Act, 1959 (U.P. Act No. 12 of 1959).
It substituted sub clause (e) in the first proviso of section 3 which reads as follows: "(e) by a consumer in any Industry engaged in the manufacture, production, processing or repairs of goods".
In the year 1959 respondent No. 2 looking to the profitability of establishing a factory for manufacture of aluminium, set up a plant at Renukut, District Mirzapur in the State of U.P.
On or about 29th October, 1959 an agreement was arrived at with the State Government and the Hindustan Aluminium Corporation Ltd. (Hindalco) for supply 642 of 55 M.W. electrical power at the rate of 1.997717 paise per unit inclusive of all charges.
duties and taxes of whatever nature on electricity for 25 years.
In the year 1962 Hindalco, respondent No. 2, started production of aluminium.
On 14th October, 1964 respondent No. 2 requested the State Government to grant sanction to the Renusagar Power Company Ltd., to supply electricity to respondent No. 2.
On 12th November, 1964 respondent No. 1 Renusagar Power Company Ltd. was granted sanction under section 28 of the , to engage in the business of supply of electricity to respondent No. 2 Hindalco.
There was an agreement on 29th December, 1967 with Hindalco and U.P. State Electricity Board to supply 5.5 M.W. and 7.5 M.W. Of power.
The rate of charges along with levy of sales tax, etc. were to be paid by the consumer.
On 1st July, 1970, there was an agreement between Hindalco and State Electricity Board to supply 7.5 M.W. Of power.
The rate of charges including levy such as Sales Tax etc.
were to be paid by the consumer.
On 5th August, 1970, the U.P. Ordinance No. 14 of 1970 was promulgated further to amend the U.P. Electricity (Duty) Act, 1952 which came into force from 1st September, 1970.
By the aforesaid amendment provisions of sections 3, 4 and 7 were substituted by new sections, sections 3A and 9 were omitted and there were several amendments in various sections of the original Act.
As a result of the promulgation of the ordinance, electricity duty became leviable on the industrial consumption as well as on the energy consumed by any person from his own source of generation.
The provisions of section 3 have been set out before.
Thereafter notification was issued on 25th August, 1970 under which rate of electricity duty on the energy consumed for industrial purposes was prescribed at one paisa per unit on consumption of electricity with effect from 1st September, 1970.
On 1st September, 1970, the provisions of the ordinance amending U.P. Electricity (Duty) Act, 1952 came into force.
Electricity duty became leviable on the respondent No. 1 on the energy supplied to Hindalco, respondent No. 2 for the industrial purposes.
On 28th September, 1970 respondent No. 2, Hindalco, made an application under sub section (4) of section 3 of the Act to the State Government to grant exemption on the energy supplied by respondent No. 1 to respondent No. 2 for industrial purposes.
On 17th January, 1971 ordinance No. 14 of 1970 was substituted by the U.P. Electricity (Duty) (Amendment) Act, 1970.
On 26th February, 1971 report was made by the Three Men Committee appointed to examine the request of Hindalco for grant of exemption from payment of electricity duty on the energy supplied by Renusagar Power Company Ltd. According to 643 the Committee the burden as a result of the imposition of electricity duty did not result in substantial or insufferable increase of the rate of duty for Hindalco.
On 27th August, 1971 a demand for payment of electricity duty amounting to Rs.59,13,891.80 was raised on respondent No. 1.
On 29th March, 1972 application of respondent No. 2 for grant of exemption was rejected by the State Government on the following reasons: "(a) That the intention of the legislation was clear to withdraw the exemption from payment of electricity duty on the industrial consumers with effect from 1.9.1970 the facility of which was being availed for a period of more than 11 years.
(b) That the applicant was never given any assurance that he will be exempted from electricity duty nor the applicant is entitled for any exemption as a matter of right under the provisions of the amended Act.
(c) That it was not in public interest to grant them exemption from electricity duty.
(d) That the electricity duty is also being levied on the Aluminium Industries in other States also.
(e) That the additional resources are taken into account to give the final shape of the State Development Plans and with a view to fulfil the requirement of these Development Plans the Electricity Duty Act was amended in 1970.
The expected income from this duty is essential for the execution of State Government plans.
(f) It cannot be inferred that the imposition of electricity duty will be an unbearable burden on Hindalco.
" Aggrieved by the aforesaid rejection, the respondents filed Writ Petition No. 4521 of 1972 before the High Court of Allahabad.
On 17th March, 1973 the State Government granted exemption from payment of electricity duty on the energy consumed by any person from his own source of generation.
Exemption was also granted on the energy sold to a consumer establishing a factory having capital investment upto Rs.25 laks in the backward district for five years.
644 The High Court by its judgment on 17th May, 1974 in the Writ Petition No. 4521 of 1972 quashed the order of the State Government and directed the State Government to reconsider the application of the respondents for exemption in the light of the observations made in that judgment.
On 6th September, 1975 Hindalco submitted an application again to the State Government for reconsideration of their previous application for exemption from payment of electricity duty.
In the meanwhile, the State Government filed a special leave petition to this Court against the judgment and order of the High Court of Allahabad dated 17th May, 1974 in Writ Petition No. 4521 of 1972.
In the meantime of 13th November, 1976 an agreement was entered into between the State Electricity Board and Hindalco for supply of 85 M.W. main supply.
The rate fixed was 11 paise per unit inclusive of all taxes of whatever nature on electricity.
Special leave petition was, however, dismissed on 28th March, 1977.
In compliance with the High Court 's judgment dated 17th May, 1974, on 5th April, 1977 respondents were given an opportunity of hearing by the State Government.
For the purpose of considering the representation and to verify the correctness of the data and the profit and loss accounts furnished by Hindalco in their printed Balance Sheets the matter was got examined by Shri B.B. Jindal, Controller of Banking operations, U.P. State Electricity Board who submitted his report in 1977.
The State Government, however, was not satisfied with the report of Shri B.B. Jindal.
On 6th September, 1978 the matter was got re examined by the Chief Electrical Inspector to Government, Uttar Pradesh.
He submitted his report.
The Chief Electrical Inspector in his report compared the cost of power of Hindalco with similar industries in other States.
On 5th December, 1978 Secretary of Power discussed the matter with Dr. R. Rajagopalan, Chief Advisor (Costs), Government of India.
Then a note was prepared by the Secretary, Power, Government of U.P. in which reference was made to the above report of Chief Electrical Inspector to the Government of U.P.
Thereafter the Chief Secretary to the Government of U.P.
On 26th December, 1978 wrote a letter to the Secretary, Ministry of Finance, Government of India, requesting him that the matter may be got examined by the Chief Advisor (Costs), Government of India, expeditiously.
After examination on 29th January, 1979 Dr. R. Rajagopalan, Chief Advisor (Costs), Government of India, submitted his report that the effect of imposition of electricity duty on the margin of profit available to Hindalco has been very insignificant.
It did not have any adverse effect on the profitability of Hindalco since such a levy has been included in the cost in fixing the selling prices of Hindalco 's products by the Government of India.
Imposition of electricity duty did not result in reducing the 645 normal profits of Hindalco to either an absolute loss or such a small margin of profit that Hindalco was turned into an uneconomic unit.
According to him the claim of Hindalco for exemption from levy of electricity duty is not based on justifiable grounds of either low profitability or incapacity of resources with which to pay.
Personal hearing was given to the respondents in view of the directions given by the High Court.
Report of Dr. Rajagopalan was made available to the respondents.
On 28th January, 1980 rate of electricity duty on the energy consumed for industrial purposes was revised from one paisa to two paise per unit applicable from the date of notification, that is, from 16th February, 1980.
There was an agreement on 24th April, 1980 between the State Electricity Board and the Hindalco regarding 85 M.W. main supply and 60 M.W. stand by Emergency Supply.
Rate of 28.42 paise per unit was fixed.
A personal hearing was given to the respondents in compliance with the directions issued by the High Court.
Respondents were allowed to inspect the report of the Chief Electrical Inspector and other reports available with the State Government were shown to them and they submitted their comments on the report of Dr. Rajagopalan which were duly considered by the State Government.
A personal hearing was again given to the respondents to submit their submissions in support of their application for exemption.
Respondents were represented by counsel during the course of hearing.
After giving full consideration to the submissions made in the original and additional representations and the comments dated 23rd August, 1980 on the report of Dr. Rajagopalan and to the entire material placed before the State Government, the State Government came to the conclusion that the claim for exemption from levy of electricity duty was not at all justified on any ground whatsoever.
Accordingly the request for exemption was disallowed.
On 3rd March, 1982 respondent No. 1 was asked to pay Rs.11,96,83,153.80 as the amount of electricity duty on the energy supplied by it to respondent No. 2 for industrial purposes.
Respondent No. 1.
however, failed to pay the aforesaid amount within the stipulated time.
On 22nd March, 1982, the District Magistrate, Mirzapur, was requested to recover the said amount as arrears of land revenue.
Being aggrieved by the decision of the State Government, the respondent filed a Writ Petition No. 3921 of 1982 in the High Court of Allahabad and the High Court issued stay order directing the petitioners not to take any proceedings for the recovery of the impugned electricity duty.
On 26th September, 1984 the High Court allowed the Writ Petition No. 3921 of 1982 and held that the impugned order of the State Government was not maintainable in law and hence quashed the order of the State Government as well as the notice of demand dated 3rd March, 1982.
The State 646 Government was also directed to consider the request of the respondents for exemption in accordance with the directions issued by the Division Bench in Writ Petition No. 4521 of 1972 and also in the light of the observations made in the judgment after affording an opportunity of personal hearing to the respondents.
Being aggrieved thereby the appellants have come up in appeal to this Court.
In the background of the facts and the circumstances set out.
hereinbefore, we have now to examine the correctness of the judgment and order of the High Court which is under appeal.
There are two different aspects.
One is whether the Renusagar Power Co. Ltd., was 'own ' source of generation of electricity for the Hindalco, in the facts and circumstances of the case.
The second aspect is whether the order passed by the State Government, having regard to the nature of the order passed, was in accordance with the principles of natural justice in so far as the same were applicable to the facts of this case.
As it is apparent on the state of law mentioned hereinbefore from 1952 to 1970 no duty was payable if electricity was generated from own source of energy.
From 1970 to 1973 duty of one paisa was payable in respect of electricity supplied from own source of generation.
However, after 1973 no duty was payable in respect of electricity supplied from own source of generation. 'Own source of generation is an expression connected with the question of lifting or piercing the corporate veil.
It is well settled that in interpreting items in statutes whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should be had not to the scientific and technical meaning of the terms or expressions used but to the meaning attached to them by those dealing in them.
See the observations of this Court in Chiranjit Lal Anand vs State of Assam & Anr., [1985] Suppl 2 SCR 385.
As mentioned hereinbefore, the application for exemption was made after disposal of the first writ petition No. 4521/72 by the High Court on 17th May, 1974.
Thereafter, the respondent made another application for exemption under section 3(4) of the Act.
The said application was ultimately rejected, which rejection was subsequently challenged.
The High Court in the judgment under appeal on 26th September, 1984 has set aside me order of rejection passed by the State Government.
Was the High Court right, is the question involved in this appeal.
647 Examination of this question involves two aspects, namely, what is the rate of duty under which various notifications were applicable to the energy consumed by Hindalco from Renusagar.
Is Renusagar "own source of generation" of Hindalco within the meaning of section 3(1)(c) of the Electricity Duty Act, 1952 and the various notifications issued thereunder.
The question whether Renusagar was "own source of generation" of Hindalco, is a mixed question of law and facts as correctly contended by Shri Palkhiwala as well as by Shri Sen appearing on behalf of the respondents.
Shri Palkhiwala appearing for the respondents submitted before us the historical background of the setting up of Renusagar Power Plant.
It was urged that for producing aluminium by Hindalco, electricity is a raw material.
The Hindalco was set up with a capacity of 20,000 tons per annum on the basis of sole assurance according to the respondent, given by the State of U.P. that adequate power would be given at a very cheap and economical rate.
The Government of U.P. in 1959 agreed to give 55 m.w.
Of power @1.99 paise per unit.
This, according to the respondents, was in accordance with the policy of Central (Government and on the basis of the report of the various Committees set up by the Government.
Our attention was drawn to certain facts appearing in Vol.
A pages 8 9 which set out the averments made in the writ petition filed in the instant case.
It was stated therein that aluminium is an essential raw material in a large number of industries of strategic national importance and its production is of vital public interest.
60% of the production of Renusagar goes to the electric industries and an extra 16% of the production goes to the utensils manufacturing unit and all the remaining production goes to defence, ordnance, mint, transportation and packaging industry.
Aluminium is, therefore, a commodity of national importance and, as such, is mentioned in Schedule 1 of the Industries (Development and Regulation) Act, 1951 which contains only such industries which have been declared by the Parliament to be of public interest.
The Union Government was anxious to set up new units in private sector as for want of sufficient foreign exchange such units could not be set up in the public sector.
In this connection reliance was placed on the report of the Industrial Licensing Enquiry Committee known as 'Data Committee '.
In this background Shri G.D. Birla who eventually floated the Corporation was prevailed upon to explore the possibility of setting up of aluminium plant.
The Government of India appointed a Committee of Experts headed by Shri Nagarajarao in the year 1956 for recommending the location of a new Aluminium Plant.
In that report Shri Nagarajarao recommended Rihand as one of 648 the places for setting up the Aluminium Plant.
The U.P. Government was also keen to have the industry located in the State and persuaded Shri G.D. Birla to set up the plant with the assurance that sufficient electricity at constant and concessional rate would be available.
Here, it was reiterated that the agreement dated 29th October, 1959 was entered into called the parallel agreement so that at any time any one of the Thermal Power Stations could be maintained independently.
Hindalco was allowed to expand its aluminium production capacity from time to time on the condition that it would instal its own power plant subject to the further condition that this power plant could be taken over by the State at a later date.
To avoid take over complications Hindalco decided to set up captive power house through the instrumentality of Renusagar Power Co., a 100% subsidiary of Hindalco fully controlled by Hindalco in all respects to supply power to Hindalco only.
Reference may be made to page 28 of Vol.
XVI which is a letter dated 13th February, 1963 written by the Deputy Secretary, Govt.
Of India, Ministry of Commerce & Industry, to Shri D.P. Mandelia of Hindustan Aluminium Corporation, New Delhi, where on the question of power plant it was suggested that as stated by Shri Mandelia a separate Company may be formed with the power plant project and the major portion of the capital subscribed by Hindalco.
It was highlighted that setting up of a power plant project was part of the scheme for meeting the needs of Hindalco for electricity.
All planning, designing, engineering, purchase of equipments financing was done by Hindalco exclusively for Renusagar.
See Vol.
XVI Pages 20, 33, 49, 58 & 62 of the paper book.
The only object and purpose of power plant was to supply power and suit the requirements of Hindalco.
Reference may be made to pages 36 & 37 of Vol.
XVI of the Paper Book.
According to Shri Palkhiwala and Shri B. Sen from the aforesaid background the following facts emerge: (a) 1967/1968 Unit 1 & 2 of Renusagar went into operation.
(b) Renuagar was set up as part and parcel of Aluminium Expansion Scheme.
(c) All steps to set up Renusagar including expansion were taken by Hindalco.
649 (d) Agency of Renusagar was set up by Hindalco because of Take over option by the State.
(e) Renusagar is 100% subsidiary of Hindalco.
(f) Borrowings of Renusagar arranged and guaranteed by Hindalco.
(g) Renusagar supplies power to Hindalco only.
(h) There is only one transmission line from Renusagar to Hindalco.
(i) Renusagar generates power only to the extent required by Hindalco.
(j) Hindalco has complete control over Renusagar.
Hindalco has undertaken various obligations for the running of Renusagar.
(k) The agreement between Renusagar and Hindalco is not a normal sale purchase agreement.
This agreement shows complete control of Hindalco over Renusagar.
THE CONDITIONS UNDER THE APPLICABLE To NORMAL SANCTION HOLDERS AND LICENSEES WERE NOT APPLIED To RENUSAGAR BECAUSE IT WAS HINDALCO 'S CAPTIVE SOURCE OF GENERATION.
For Instance: (a) After the incorporation in 1964 Renusagar was granted sanction u/s 28 of the Electricity Supply Act, 1910 to supply power to Hindalco only.
See Vol.
XVI page 64 of the Paper Book.
(b) Since Renusagar was not public utility but a captive plant of Hindalco certain conditions applicable to normal sanction holders in the nature of public utilities but inapplicable to Renusagar were deleted from the sanction.
See Vol.
XVI page 74 of the Paper Book.
FOR THE PURPOSE OF EXPANSION OF HINDALCO AS WELL AS RENUSAGAR THE GOVT.
OF INDIA AND THE 650 STATE OF U.P. SPECIFICALLY PROCEEDED ON THE FOOTING THAT HlNDALCO HAD ITS "OWN SOURCE OF GENERATION" IN RENUSAGAR, SINCE RENUSAGAR WAS THE CAPTIVE POWER PLANT OF HINDALCO.
(a) Hence, for all practical purposes Renusagar was treated as part and parcel of the Hindalco 's expansion programme.
In 1962 Hindalco decided to expand capacity to 60,000 tons per annum.
This meant need of extra power.
The U.P. Government and the UPSEB expressed inability to give the extra power.
The U.P. Govt.
had no objection if Hindalco set up its own power house with an option to the U.P. Govt.
to take over the power plant later.
On this important basis Hindalco was granted permission to set up captive power plant.
Reliance was placed in this connection on Vol.
XVI, pages 4, 6, 7, 15 and 16 of the Paper Book.
Also see sections 34, 36, 37, & 44 of the Electricity Supply Act, 1910.
(b) Thus Hindalco was allowed to expand its aluminium production on the condition of its setting up its own power plant which was part and parcel of the expansion scheme.
See in this connection Vol.
XVI, pages 22 & 25 of the Paper Book.
(c) When Hindalco decided to expand its aluminium plant again from 60,000 to 1,20,000 tons per annum, the expansion of the powerhouse was a condition precedent to aluminium expansion.
All negotiations, requests for permission, correspondence with authorities, intimation from Government were done and received by Hindalco.
In this connection reference may be made to Vol.
XVI, pages 129 to 134, 15 1, 157 & 180 of the Paper Book.
(d) Renusagar was allowed expansion limited to power requirement of Hindalco for captive use of Hindalco.
See Vol.
XVI, pages 145, 159, 161, 185, 187 and 189 of the Paper Book.
(e) All Government authorities including Central Govt.
, State of U.P. and U.P. State Electricity Board have always treated Renusagar to be "Captive Plant" as either "Self Generation" or "own generation" or "own Plant" or "own Source of generation" or "Generation for self use" or "own use" etc.
Of Hindalco.
In this connection reference may be made to Vol.
XVI, pages 81, 90 91, 112, 135A, 139 140, 146, 150, 152, 160, 163, 167, 169, 172, 183A & 184 of the Paper Book.
It further appears that 100% power cuts stoppage of electricity from the State grid were imposed on those who had 651 50% or more of their "own source of generation".
Hindalco suffered 100% power cuts precisely on this account.
It was submitted on behalf of the respondents and in our opinion rightly that the words "own source of generation" could not have one meaning for power cuts and another meaning for concession/exemptions under the same law.
It further appears that the Secretary, Power, U.P. Govt. submitted a note to the Advisory Council for recommending 100% powercuts on Hindalco as Hindalco had more than 50% power supply from its own source of generation i.e. Renusagar.
See Vol.
XVI, page 163 of the Paper Book.
Notification under section 22B of the Act as appearing in Vol.
XIII of the Paper Book was accordingly issued.
The U.P.S.E.B. served notice on Hindalco to reduce drawal to zero.
See Vol.
XVI, page 167 of the Paper Book.
The U.P. Government refused exemption from power cut to Hindalco on the ground that it had its own source of generation.
See Vol.
XVI, page 172.
In Court proceedings Hindalco challenged power cut.
The Government filed affidavits, always asserting Renusagar to be "own source of generation" of Hindalco.
See Vol.
XXIV, pages 68 to 75 of the Paper Book.
Indeed, it appears from the observations of this Court in State of U.P. vs Hindustan Aluminium Corpn.
Ltd., ; that this Court proceeded on the basis that Renusagar had its own source of generation.
It is further said that the appellants have also admitted in the present proceedings the position that Hindalco had in Renusagar its own source of generation.
Reliance has been placed on: (a) Section 9 of the Duty Act as it existed upto 1970.
See Vol.
XVIII, page 5 of the Paper Book.
(b) Three men Committee Report on exemption treated Renusagar as own generation.
See Vol.
A page 158 at 163 of the Paper Book.
652 (c) The Government of U.P. rejected exemption application.
A page 3 of the Paper Book.
(d) Counter affidavit in the first petition.
X, pages 26, 27 & 32 of the Paper Book.
(e) Counter affidavit in second petition.
XI, pages 93 & 130 of the Paper Book.
(f) See the Judgment of the Allahabad High Court.
A, pages 7, 10 11, 13 & 19.
(g) Petition of the U.P. Government under Article 138.
XI page 134.
(h) It is also significant to note the special leave petition filed by the U.P. Government.
Reference may be made to Vol.
XI, pages 139 to 141.
(i) Reference may be made to Rajagopalan Report, Vol.
A pages 237 & 265 of the Paper Book.
(j) See the affidavit of State of U.P. in Allahabad High Court in present proceedings.
A, pages 71 72, 76 & 84.
(k) The High Court 's Judgment dated 26.9.84 in the present proceedings.
B, pages 391 397.
All these factors have to be borne in mind in considering whether Renusagar was Hindalco 's own source of generation.
Counsel for the respondents drew our attention to the fact that in the manufacture of aluminium, electrical energy is raw material and between 16,000 to 20,000 units of energy are required for the production of 1 ton of aluminium.
The impact of the imposition of duty on energy @1 paise per unit would be an increase in the cost of production of aluminium by Rs.160 to Rs.200 per ton.
The impact of the imposition of duty on energy @ 6 paise per unit will be an increase in the cost of aluminium by Rs.960 to Rs.1,200 per tan.
Hindalco was incorporated in 1959 and its aluminium plant commenced production in 1962 with a capacity of 20,000 tons of aluminium ingots p.a. Hindalco obtained electrical energy required for the manufacture of aluminium to the extent of 55 MW from the State/ 653 Board Hydle power under an agreement dated 29.10.59 @1.997717 paise per unit inclusive of all charges, duties and taxes of whatever nature on electricity.
Hindalco 's plant was located at Renukut because of their assurances for power supply at economical rates.
The first expansion of Hindalco from 20,000 to 60,000 tons p.a. required further electricity.
According to the respondent the basic planning of the power plant at Renusagar, the arrangement for its design, engineering, purchase and for importing the plant and for financing the whole project were done by Hindalco.
Renusagar, which is a 100% subsidiary of Hindalco, wholly owned and controlled by Hindalco, was incorporated in March 1964.
Hindalco established the power plant through the agency of Renusagar in order to avoid complications in the case of a take over of the power plant by the State/Board of which there could be a possibility as power generation is generally not permitted in normal conditions in private sector In this background what was highlighted on behalf of the respondent was that the sanction under section 28 of the 1910 Act given to Renusagar and its amendment established that Renusagar was not a normal type of sanction under section 23 of the 1910 Act as the holder could supply power only to Hindalco.
The first generating unit in Renusagar commenced on 9.9.67 and the second one commenced on 5.10. 68.
All steps for the expansion of the power in Renusagar so as to match the power requirement of Hindalco 's expansion were taken by Hindalco even though Renusagar had been incorporated.
Applications for all the necessary sanctions and permissions were made by Hindalco.
Permissions and sanctions were first intimated to Hindalco even though Renusagar was in existence.
See Vol.
XVI, pages 129 134 & 149 of the Paper Book.
Changes in the sanctions and/or permissions granted were obtained by Hindalco and not by Renusagar.
See Vol.
XVI, pages 157, 180 of the Paper Book.
The expansion of the power plant in Renusagar was to exactly match the requirements of Hindalco for the production of aluminium.
The expansion of the power plant in Renusagar was part and parcel of the expansion of the aluminium plant of Hindalco.
See Vol.
XVI, pages 145, 159, 161, 185, 187 & 189 of the Paper Book.
654 The third generation unit in Renusagar commenced in November 1981 and the fourth generating unit in April 1983.
Hindalco consumes about 255 MW power out of which 250 MW comes from Renusagar and 5 MW by way of main supply and 15 MW by way of emergency supply is made by the Board.
It was emphasised on behalf of Hindalco that the power plants at Renusagar were set up as part and parcel of the aluminium expansion scheme of Hindalco and the only object and purpose of the power plants in Renusagar was to supply power to suit the needs of Hindalco.
All steps to set up the power plant in Renusagar and its further expansion were taken by Hindalco.
The power plant was set up by Hindalco through the agency of Renusagar (100% subsidiary and wholly owned and controlled by Hindalco) to avoid complications in the event of take over by the State/Board.
All the borrowings of Renusagar were arranged and guaranteed by Hindalco.
Further, there is only one transmission line going out of Renusagar and the same goes to Hindalco.
Renusagar can supply power only to Hindalco.
Renusagar generates power only to the extent required by Hindalco.
Hindalco has complete control over Renusagar including its day to day operations.
This will be evident from the applications with regard to running of Renusagar Power Plant Station undertaken by Hindalco to the Board.
See Vol.
XV, pages 104, 118, 124 of the Paper Book.
The agreement between Renusagar and Hindalco indicates this was not a normal sale purchase agreement between two independent persons at arms length.
The price of electricity is determined according to the cash needs of Renusagar.
This covenant also shows complete control of Hindalco over Renusagar.
It was submitted before us that if looked at properly, Renusagar was Hindalco 's own source of generation and according to the respondent an analysis of the different provisions of the Amendment Act, makes the position clear.
Submissions were made on the construction of section 3 of the Act and also that the difference in language of section 2(g)(c) and old section 9 is significant.
Ambit of section 3(1)(c) is wider than the old section in view of the addition of the words 'source of generation ' which must be given their full meaning.
We have set out hereinbefore the provisions of sections 3(1)(c) and 9 of the Act.
Rule 2(g) referred to in the order shows that the expression 'any 655 person ' in section 3(1)(c) would mean a person other than licensee or a Board who consumes energy from his own source of generation.
Hindalco fixes in the expression 'any other person ' under section 3(1)(c) and it consumes energy from its own source of generation.
Generation being done by Renusagar, it was pointed out that Rule 2(g) of the U.P. Electricity Duty Rules, 1952 supports this plea of the respondents.
It should be borne in mind that the expression 'own source of generation ' which has not been defined in the Duty Act or 1910 Act, cannot be regarded as a term of article The various documents and letters placed before the Court and referred to hereinbefore indicate that all persons and authorities dealing and conversant with this matter had consistently treated Renusagar as own source of generation of Hindalco.
In the power cuts matter under section 22B of cut was imposed on Hindalco on the footing that it has its own source of generation.
All the authorities including the State and the Board have all along treated Renusagar as own source of generation of Hindalco.
The High Court as well as this Court had proceeded on that basis.
In a note with the Advisory Counsel dated 31.5.77 the Secretary, Power Deptt.
Of the State Govt.
treated Renusagar as own source of generation of Hindalco.
In the proceedings under the Electricity Duty Act itself, it was the case of the State that Renusagar generation was by Hindalco for its own use within the meaning of section 9 of the Duty Act.
It was also the case of the State that Renusagar was own source of generation of Hindalco and since by its amendment in 1952 the Legislature had shown an intention to levy duty on own source of generation, Hindalco was not entitled to exemption.
It was, therefore, submitted that Renusagar must be regarded as alter ego of Hindalco i.e., own source of generation of Hindalco within the meaning of section 3(1)(c) of the Duty Act.
The word "own" is a generic term, embracing within itself several gradations of title, dependent on the circumstances, and it does not necessarily mean ownership in fee simple; it means, "to possess to have or hold as property".
See Black 's Law Dictionary, 5th Edn.
p. 996.
It was further submitted that by the 1970 Amendment Act, the Legislature intended to cover a wide area under section 3(1)(c) than under the old section 9.
If Renusagar is the own source of generation of Hindalco then the consumption clearly falls within section 3(1)(c).
The three clauses of section 3(1), it was submitted, had to be read together by way of harmonious construction.
Section 3(1)(a) should 656 not be so construed as to defeat the aim of section 3(1)(c).
In the case of harmonious construction what needs to be looked at, is the dominant or the primary element in the provisions.
Thus section 3(1)(c) should not be interpreted to cover all the cases of own generation notwithstanding the fact that a sale may be involved and to that extent the transaction should be excluded from the operation of section 3(1)(a).
Alternatively, it was submitted that if the three clauses were to be treated as independent of each other then the result of construction that each provision would yield to special provisions applied should be applied as a part and parcel of harmonious construction of this section.
In this approach clause (c) of section 3(1) ought to be regarded as dealing with the special situation, namely, a person consuming from its own source of generation while provisions of clause (a) of section 3(1) should be regarded as general provisions dealing with the cases of sale and consumption generally.
The aforesaid construction would be in harmony, it was urged, with the object and purpose of the legislation.
Reliance was placed on the observations of this Court in J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U.P. & Ors., ; , where at page 193 this Court insisted on harmonious construction and not on literal construction.
Also see M/s Girdhari Lal & Sons vs Balbir Nath Mathur & Ors., ; at 241 & 246; State of Tamil Nadu vs Kodaikanal Motor Union (P) Ltd., at 100 and D. Sanjeevayya vs Election Tribunal, A.P. & ors.; , at 492.
On behalf of the respondents and in support of their contention, it was urged that the harmonious construction would advance purpose and object of the legislation inasmuch as it was clearly one of the purposes of the legislation to treat captive generation or self generation as a separate category and to confer benefits on the same in public interest.
Our attention was drawn to the notification dated 17th March, 1973 which appears at Vol.
XVIII, page 34.
It was further contended on behalf of the respondents that interpretation of section 3(1)(c) of the Act would not depend on the manner in which a person might choose to organise his affairs.
Further that there was no rational distinction having a nexus with the object of the Duty Act, where a person generating electrical energy himself was consuming the same and a person who engaged another person to generate electrical energy exclusively for and on behalf of his complete control and who consumes all the electrical energy so generated.
Accordingly it was urged that such a distinction being arbitrary and irrational, it would be 657 violative of Article 14 of the Constitution.
Hence, it was contended that a construction of the Duty Act, which would make such a distinction, must be avoided.
This naturally brings us to the question of lifting the corporate veil or piercing the corporate veil as we often call it.
On behalf of the appellants, however, it was very strongly urged that in this case there was no ground for lifting the corporate veil and Shri Trivedi, learned Additional Advocate General, State of U.P., who was assisted by Shri Gopal Subramaniam, submitted before us elaborate arguments and made available to us all the relevant documents, urged that there was no warrant either in law or in fact to lift the corporate veil and to treat Renusagar 's plant as Hindalco.s own source of generation.
Shri Trivedi urged that facts in this case do not justify such a construction and the law does not warrant such an approach.
We may say that Shri Trivedi mainly relied on the proposition that normally the Court has disregarded the separate legal entity of a Company only where the Company was formed or used to facilitate evasion of legal obligations.
He referred us to the observations of this Court in Western Coalfields Ltd. vs Special Area Development Authority, Korba & Anr., ; at 17.
The facts of that case were, however, entirely different and it is useless to refer to them but at page 17 of the report, Chandrachud, C.J. speaking for the Court quoted the observations in Andhra Pradesh State Road Transport Corpn.
vs The I.T.O. & Anr., ; , where this Court had held that though the Transport Corporation was wholly controlled by the State Government it had a separate entity and its income was not the income of the State Government.
While delivering the Judgment in that case Gajendragadkar, C.J., referred to the observations of Lord Denning in Tamlin vs Hannaford, where Lord Denning had observed that the Crown and the corporation were different and the servants of the corporation were not civil servants.
Chandrachud, C.J., relied on the aforesaid observations and referred to Pennington 's Company Law 4th Edn., pages 50 51, where it was stated that there were only two cases where the Court had disregarded the separate legal entity of a Company and that was done because the company was formed or used to facilitate the evasion of legal obligations.
The learned editor of Pennington 's Company Law, 5th Edn., at page 49 has recognised that this principle has been relaxed in subsequent cases.
He states that the principle of company 's separate legal 658 entity has on the whole been fully applied by the Courts since Salomon 's case.
Corporate veil has been lifted where the principal question before the court was one of company law, and in some situations where the corporate personality of the company involved was really of secondary importance and the application of the old principle has worked hardship and injustice.
In England, there have been only a few cases where the court had disregarded the company 's corporate entity and paid attention to where the real control and beneficial ownership of the company 's undertaking lay.
When it had done this, the court had relied either on a principle of public policy, or on the principle that devices used to perpetrate frauds or evade obligations will be treated as nullities, or on a presumption of agency or trusteeship which at first sight Salomon 's case seems to prohibit.
Again at page 36 of the same Book, the learned author notes a few cases where the courts have disregarded separate legal entity of a company and investigated the personal qualities of the shareholders or the persons in control of it because there were overriding.
public interests to be served by doing so.
Indubitably, in this case there was no question of evasion of taxes but the manner of treatment of the power plant of Renusagar as the power plant of Hindalco and the Government taking full advantage of the same in the case of power cuts and denial of supply of 100% power to Hindalco, in our opinion, underline the facts and, as such, imply acceptance and waiver of the position that Renusagar was a power plant owned by Hindalco.
Shri Trivedi natually relied on several decisions which we shall briefly note in aid of the submission that Renusagar 's power plant could not be treated as Hindalco 's power plant.
He referred us to the well known case of Aron Salomon vs A. Salomon & Co. Ltd., ; at 27, 30 31, 43. 56 to emphasise the distinction between the shareholders and the company.
This point of view was emphasised by this Court also in which Chandrachud, CJ., relied on Western Coalfields Ltd. in Rustom Cavasjee Cooper vs Union of India, ; at 555, where this Court held that a Company registered under the Companies Act was a legal person, separate and distinct from its individual members.
Property of the Company was not the property of the shareholders.
These propositions, in our opinion, do not have any application to the facts of the instant case.
Shri Trivedi also drew out attention to the Bank Voor Handel En Scheepvaart N. V. vs Stalford, , where in the context of the international law property belonging to or held on behalf of a Hungarian national came up for consideration and the distinction between a shareholder and a company was emphasised and highlighted.
659 In Kodak Ltd. vs Clark, , the Court of Appeal in England while dealing with an English company carrying on business in the U.K. Owned 98% of the shares in a foreign company, which gave it a preponderating influence in the control, election of directors etc., of the foreign company.
The remaining shares in the foreign company were, however, held by independent persons, and there was no evidence that the English company had ever attempted to control or interfere with the management of.
the foreign company, or had any power to do so otherwise than by voting as shareholders.
It was held that the foreign company was not carried on by the English company, nor was it the agent of the English company, and that the English company was not, therefore, assessable to income tax.
Renusagar was not the alter ego of Hindalco, it was submitted.
On the other hand these English cases have often pierced the veil to serve the real aim of the parties and for public purposes.
See in this connection the observations of the Court of Appeal in DHN Food Distributors Ltd. & Ors., vs London Borough of Tower Hamlets, It is not necessary to take into account the facts of that case.
We may, however, note that in that case the corporate veil was lifted to confer benefit upon a group of companies under the provisions of the Land Compensation Act, 1961 of England.
Lord Denning at page 467 of the report has made certain interesting observations which are worth repeating in the context of the instant case.
The Master of the Rolls said at page 467 as follows: "Third, lifting the corporate veil.
A further very interesting point was raised by counsel for the claimants on company law.
We all know that in many respects a group of companies is treated together for the purpose of general accounts, balance sheet and profit and loss account.
They are treated as one concern.
Professor Gower in his book on company law says: 'there is evidence of a general tendency to ignore the separate legal entities of various companies within a group, and to look instead at the economic entity of the whole group '.
This is especially the case when a parent company owns all the shares of the subsidiaries, so much so that it can control every movement of the subsidiaries.
These subsidiaries are bound hand and foot to the parent company and must do just what the parent company says.
A striking instance is the decision of the House of Lords in Harold Holdworth & Co. (Wakefield) Ltd vs Caddies.
So here.
This group is virtually the same as a partnership in which all the three companies are partners.
They 660 should not be treated separately so as to be defeated on a technical point.
They should not be deprived of the compensation which should justly be payable for disturbance.
The three companies should, for present purposes, be treated as one, and the parent company, DHN, should be treated as that one.
So that DHN are entitled to claim compensation accordingly.
It was not necessary for them to go through a conveyancing device to get it.
I realise that the President of the Lands Tribunal, in view of previous cases, felt it necessary to decide as he did.
But now that the matter has been fully discussed in this court, we must decide differently from him.
These companies as a group are entitled to compensation not only for the value of the land, but also compensation for disturbance.
I would allow the appeal accordingly." Lord Justice Goff proceeded with caution and observed as follows at pages 468 & 469 of the report: Secondly, on the footing that that is not in itself sufficient, still, in my judgment, this is a case in which one is entitled to look at the realities of the situation and to pierce the corporate veil.
I wish to safeguard myself by saying that so far as this ground is concerned, I am relying on the facts of this particular case.
I would not at this juncture accept that in every case where one has a group of companies one is entitled to pierce the veil, but in this case the two subsidiaries were both wholly owned; further, they had no separate business operations whatsoever; thirdly, in my judgment, the nature of the question involved is highly relevant, namely whether the owners of this business have been disturbed in their possession and enjoyment of it.
I find support for this view in a number of cases, from which I would make a few brief citations, first from Harold Holdworth & Co (Wakefield) Ltd: vs Caddies where Lord Reid said: 'It was argued that the subsidiary companies were separate legal entities, each under the control of its own board of directors, that in law the board of the appellant company could not assign any duties to anyone in relation to the management of the subsidiary companies, and that, there 661 fore, the agreement cannot be construed as entitling them to assign any such duties to the respondent.
My Lords, in my judgment, this is too technical an argument.
This is an agreement in re mercatoria, and it must be construed in the light of the facts and realities of the situation.
The appellant company owned the whole share capital of British Textile Mfg. Co. and, under the agreement of 1947, the directors of this company were to be the nominees of the appellant company.
So, in fact, the appellant company could control the internal management of their subsidiary companies, and, in the unlikely event of there being any difficulty, it was only necessary to go through formal procedure in order to make the decision of the appellant company 's board fully effective.
That particular passage is, I think, especially cogent having regard to the fact that counsel for the local authority was constrained to admit that in this case, if they had thought of it soon enough, DHN could, as it were, by moving the pieces on their chess board, have put themselves in a position in which the question would have been wholly unarguable.
l also refer to Scottish Co operative Wholesale society Ltd. vs Meyer.
That was a case under section 210 of the Companies Act, 1948 and Viscount Simonds said: 'I do not think that my own views could be stated better than in the late Lord President Cooper 's words on the first hearing of this case.
He said: "In my view, the section warrants the court in looking at the business realities of a situation and does not confine them to a narrow 1egalistic view." My third citation is from the judgment of Danckwerts LJ in Merchandise Transport Ltd. vs British Transport Commission where he said that the cases 'Show that where the character of a company, or the nature of the persons who control it, is a relevant feature the court will go behind the mere status of the company as a legal entity, and will consider who are the persons as share sholders or even as agents who direct and control the 662 activities of a company which is incapable of doing anything without human assistance. ' The third ground, which I place last because it is longest, but perhaps ought to come first, is that in my judgment, in truth, DHN were the equitable owners of the property.
In order to resolve this matter, it will be necessary for me to refer in some detail to the facts." Shaw L.J. also observed at page 473 as follows: "Even if this were not right, there is the further argument advanced on behalf of the claimants that there was so complete an identity of the different companies comprised in the so called group that they ought to be regared for this purpose as a single entity.
The completeness of that identity manifested itself in various ways.
The directors of DHN were the same as the directors of Bronze; the shareholders of Bronze were the same as in DHN.
the parent company, and they had a common interest in maintaining on the property concerned the business of the group.
If anything were necessary to reinforce the complete identity of commercial interest and personality, cl. 6, to which I have referred already, demonstrates it, for DHN undertook the obligation to procure their subsidiary company to make the payment which the bank required to be made.
If each member of the group is regarded as a company in isolation, nobody at all could have claimed compensation in a case which plainly calls for it.
Bronze would have had the land but no business to disturb; DHN would have had the business but no interest in the land.
" In this connection it would be useful to refer to Harold Holdsworth & Co. (Wakefield), Ltd. vs Caddies, , where Lord Morton of Henryton in England, at page 734 of the report observed as follows: "My Lords, this clause refers to a group of companies consisting of the appellant company and their existing subsidiary companies.
I cannot read the clause as compelling the board to assign duties to the respondent in relation to the business of every company in the group.
Nor can I read it as 663 compelling the board to assign him duties in relation to the business of the appellant company.
That business is not treated as being on a different footing from the business of British Textile or of another subsidiary of the appellant company, Whalley & Appleyard, Ltd., which is mentioned in the respondent 's condescendence 3.
As I read the clause, it leaves the board of the appellant company free to assign to the respondent duties in relation to the business of one only, or two only or all of the companies in the group, and to vary the assignment and the duties from time to time.
Further, I think the clause leaves the board free to appoint another person to be "a managing director", and to divide the duties and powers referred to in the clause between the respondent and the other managing director in such manner as they think fit.
It is true that each company in the group is, in law, a separate entity, the business whereof is to be carried on by its own directors and managing director, if any; but there is no doubt that the appellant company, by taking any necessary formal steps, could make any arrangements they pleased in regard to the management of the business of (for instance) British Textile.
They owned all the issued capital and the directors were their nominees." Lord Reid at pages 737 738 observed as follows: "It was argued that the subsidiary companies were separate legal entities, each under the control of its own board of directors, that in law the board of the appellant company could not assign any duties to any one in relation to the management of the subsidiary companies, and that, therefore, the agreement cannot be construed as entitling them to assign any such duties to the respondent.
My Lords, in my judgment, this is too technical an argument.
This is an agreement in re mercatoria, and it must be construed in the light of the facts and realities of the situation.
The appellant company owned the whole share capital of British Textile Manufacturing Co., and, under the agreement of 1947, the directors of this company were to be the nominees of the appellant company.
So, in fact, the appellant company could control the internal management of their subsidiary companies, and, in the unlikely 664 event of there being any difficulty, it was only necessary to go through formal procedure in order to make the decision of the appellant company 's board fully effective.
" our attention was drawn by Shri Sen to Scottish Co operative Wholesale Society Ltd. vs Meyer and Anr., , where Viscount Simonds of House of Lords observed at pages 71 72 as follows: "My Lords, it may be that the acts of the society of which complaint is made could not be regarded as conduct of the affairs of the company if the society and the company were bodies wholly independent of each other, competitors in the rayon market, and using against each other such methods of trade warfare as custom permitted.
But this is to pursue a false analogy.
It is not possible to separate the transactions of the society from those of the company.
Every step taken by the latter was determined by the policy of the former.
I will give an example of this.
I observed that, in the course of the argument before the House, it was suggested that the company had only itself to blame if, through its neglect to get a contract with the society, it failed in a crisis to obtain from the Falkland Mill the supply of cloth that is needed.
The short answer is that it was the policy of the society that the affairs of the company should be so conducted, and the minority shareholders were con tent that it should be so.
They relied how unwisely the event proved on the good faith of the society, and in any case they were impotent to impose their own views.
It is just because the society could not only use the ordinary and legitimate weapons on commercial warfare but could also control from within the operations of the company that it is illegitimate to regard the conduct of the company 's affairs as a matter for which it had no responsibility.
After much consideration of this question, I do not think that my own views could be stated better than in the late Lord President, Lord Cooper 's words on the first hearing of this case .
He said (1954 SC at p.391); "In my view, the section warrants the court in looking at the business realities of a situation and does not confine them to a narrow legalistic view.
The truth is tnat, whenever a subsidiary is formed as in this case with an 665 independent minority of shareholders, the parent company must, if it is engaged in the same class of business, accept as a result of having formed such a subsidiary an obligation so to conduct what are in a sense its own affairs as to deal fairly with its subsidiary.
" At the opposite pole to this standard may be put the conduct of a parent company which says "our subsidiary company has served its purpose, which is our purpose.
Therefore let it die" and, having thus pronounced sentence, is able to enforce it and does enforce it not only by attack from without but also by support from within.
If this section is inept to cover such a case, it will be a dead letter indeed.
I have expressed myself strongly in this case because it appears to me to be a glaring example of precisely the evil which Parliament intended to remedy.
" Similarly, at page 84 of the report, Lord Keith 's observations are also relevant to the facts of this case.
"My Lords, if the society could be regarded as an organisation independent of the company and in competition with it, no legal objection could be taken to the actions and policy of the society.
Lord Carmont pointed this out in the Court of Session.
But that is not the position.
In law, the society and the company were, it is true, separate legal entities.
But they were in the relation of parent and subsidiary companies, the company being formed to run a business for the society which the society could not at the outset have done for itself unless it could have persuaded the respondents to become servants of the society.
This the respondents were not prepared to do.
The company, through the knowledge, the experience, the connexions, the business ability and the energies of the respondents, had built up a valuable goodwill in which the society shared and which there is no reason to think would not have been maintained, if not increased, with the co operation of the society.
The company was in substance, though not in law, a partnership consisting of the society and the respondents.
Whatever may be the other different legal consequences following on one or other of these forms of combination one result, in my opinion, followed in the present case from the method adopted, which is common to partnership, that 666 there should be the utmost good faith between the constitutent members.
In partnership the position is clear.
As stated in Lindley on Partnership (11th Edn.) p.401: "A partner cannot, without the consent of his co partners, lawfully carry on for his own benefit, either openly or secretly,.
any business in rivalry with the firm to which he belongs.
" It may not be possible for the legal remedies that would follow in the case of a partnership to follow here, but the principle has, I think, valuable application to the circumstances of this case.
" In Charterbridge Corpn.
Ltd. vs Lloyds Bank Ltd. & Anr.
at page 1194 Justice Pennycuick emphasised that the reality of the situation must be looked in.
Shri Trivedi drew out attention to the decision in Marshall Richards Machine Co. Ltd. vs Jewitt (H.M. Inspector of Taxes) , where at page 525 of the report Lord Upjohn, J. Observed that where you have a wholly owned subsidiary, and both the parent company and wholly owned subsidiary enter into trading relationships, there is, of course, a dual relation, but you cannot for the purposes of tax disregard the fact that there are, in fact, two entities and two trades, that is to say, the trade of each company.
It is normally a question of fact whether the disbursement in question is laid out wholly and exclusively and for the purposes of the trade.
In aid of this proposition and in furtherance Shri Trivedi drew our attention to the profits of the two companies which were separately computed and also referred to Vol.
C, 641 where the profits of Renusagar were separately indicated and Vol.
at page 642 where the profits of Hindalco were separately indicated.
We are, however, of the opinion that these tests are not concIusive tests by themselves.
Our attention was also drawn to the decision of the Madras High Court in M/s. Spencer & Co. Ltd., Madras vs The Commissioner of Wealth Tax, , where Veeraswami J. held that merely because a company purchases almost the entirety of the shares in another company, there was no extinction of corporate character for each company was a separate juristic entity for tax purposes.
Almost on similar facts, are the observations of P.B. Mukharji, J. in Turner Morrison & Co. Ltd. vs Hungerford Investment 667 Trust Ltd., where he held that holding company and subsidiaries are incorporated companies and in this context each has a separate legal entity.
Each has a separate corporate veil but that does not mean that holding company and the subsidiary company within it, all constitute one company.
Mr Justice o. Chinnappa Reddy speaking for this Court in Life Insurance Corpn of India vs Escorts Ltd. & Ors [1985] Suppl 3 SCR 909 had emphasized that the corporate veil should be lifted where the associated companies are inextricably connected as to be, in reality, part of one concern.
It is neither necessary nor desirable to enumerate the classes of cases where lifting the veil is permissible, since that must necessarily depend on the relevant statutory or other provisions, the object sought to be achieved, the impugned conduct, the involvement of the element of the public interest, the effect on parties who may be affected.
After referring to several English and Indian cases, this Court observed that eversince A. Salomon & Co. Ltd 's case (supra), a company has a legal independent existence distinct from individual members.
It has since been held that the corporate veil may be lifted and corporate personality may be looked in.
Reference was made to Pennington and Palmer 's Company Laws.
It is hightime to reiterate that in the expanding of horizon of modern jurisprudence, lifting of corporate veil is permissible.
Its frontiers are unlimited.
It must, however, depend primarily on the realities of the situation.
The aim of the legislation is to do justice to all the parties.
The horizon of the doctrine of lifting of corporate veil is expanding.
Here, indubitably, we are of the opinion that it is correct that Renusagar was brought into existence by Hindalco in order to fulfil the condition of industrial licence of Hindalco through production of aluminium.
It is also manifest from the facts that the model of the setting up of power station through the agency of Renusagar was adopted by Hindalco to avoid complications in case of take over of the power station by the State or the Electricity Board.
As the facts make it abundantly clear that all the steps for establishing and expanding the power station were taken by Hindalco, Renusagar is wholly owned subsidiary of Hindalco and is completely controlled by Hindalco.
Even the day to day affairs of Renusagar are controlled by Hindalco.
Renusagar has at no point of time indicated any independent volition.
Whenever felt necessary, the State or the Board have themselves lifted the corporate veil and have treated Renusagar and Hindalco as one concern and the generation in Renusagar as the own source of generation of Hindalco.
In the impugned order of the profits of Renusagar 668 have been treated as the profits of Hindalco.
In the aforesaid view of the matter we are of the opinion that the corporate veil should be lifted and Hindalco and Renusagar be treated as one concern and Renusagar 's power plant must be treated as the own source of generation of Hindalco and should be liable to duty on that basis.
In the premises the consumption of such energy by Hindalco will fall under section 3(1)(c) of the Act.
The learned Additional Advocate General for the State relied on several decisions, some of which have been noted.
The veil on corporate personality even though not lifted sometimes, is becoming more and more transparent in modern company jurisprudence.
The ghost of Salomon 's case still visits frequently the hounds of Company Law but the veil has been pierced in many cases.
Some of these have been noted by Justice P.B. Mukharji in the New Jurisprudence.
(Tagore Law Lecture 183).
It appears to us, however, that as mentioned the concept of lifting the corporate veil is a changing concept and is of expanding horizons.
We think that the appellant was in error in not treating Renusagar 's power plant as the power plant of Hindalco and not treating it as the own source of energy.
The respondent is liable to duty on the same and on that footing alone; this is evident in view of the principles enunciated and the doctrine now established by way of decision of this Court in Life Insurance Corpn of India, (supra) that in the facts of this case sections 3(1)(c) and 4(1)(c) of the Act are to be interpreted accordingly.
The person generating and consuming energy were the same and the corporate veil should be lifted.
In the facts of this case Hindalco and Renusagar were inextricably linked up together.
Renusagar had in reality no separate and independent existence apart from and independent of Hindalco.
In the aforesaid view of the matter we are of the opinion that consumption of energy by Hindalco is clearly consumption by Hindalco from its own source of generation.
Therefore, the rates of duty applicable to own source of generation have to be applied to such consumption, that is to say.
I paisa per unit for the first two generating sets and nil rate in respect of 3rd and 4th generating sets.
It is appropriate to refer that having regard to the conduct of the State the power cuts matter and also the present proceedings the State should not be permitted to treat consumption of Renusagar 's energy by Hindalco as anything other than different from consumption of energy 669 by Hindalco from its own source of generation.
We are, therefore, of the opinion that in the facts of this case the corporate veil must be lifted and Hindalco and Renusagar should be treated as one concern and if that is taken the consumption of energy by Hindalco must be regarded as consumption by Hindalco from its own source of generation.
Inasmuch as the High Court upheld this contention of the respondent we are in respectful agreement of its views and the appeal directed against this finding of the High Court must, therefore, be rejected.
The electricity bill for arrears, subject to consideration of other aspects of the matter, that is to say, the validity of the order of rejection passed by the State on 16th February, 1982 rejecting the claim for exemption would be treated hereinafter.
In order to appreciate the second aspect of the matter, that is to say, the challenge to the order which has been quashed by the High Court, it is necessary to recapitulate certain facts.
Hindalco made an application to the State Government under section 3(4) of the Act for exemption on 28th September, 1970.
In spite of repeated requests made by Hindalco the State did not take any decision on the said application of Hindalco and also purported to raise and enforce demands under the Duty Act against Hindalco.
Hindalco and Renusagar filed a Writ Petition No. 368 of 1972 in the High Court of Allahabad on 21st March, 1972.
On that very date Hindalco was informed that the application previously made by it had been rejected by the State Government.
Hindalco applied for amendment of the writ petition.
Reasons for rejection were intimated on 16th June, 1972.
Thereafter Writ Petition No. 368 of 1972 was withdrawn.
On 21st July, 1972 Hindalco and Renusagar filed another Writ Petition No. 4521 of 1972 in the High Court of Allahabad challenging the order of rejection.
On 17th May, 1974 the High Court delivered judgment quashing the aforesaid rejection and asking the State Government to consider the matter afresh in accordance with law and in accordance with the directions contained in the said judgment.
Another Writ Petition being Writ Petition No. 3921 of 1982 out of which the present appeal arises was filed by Renusagar and Hindalco on 16th April, 1982.
The High Court passed an order on 26th September, 1984 quashing the order.
The High Court was of the view that the Government was under a mandatory duty to consider certain factors.
These were: (1) How did the cost of power to the Corporation compare with the cost of power to 670 similar industries in other States? (2) How the spending of huge sums A by the Government of India in foreign exchange decreased and its keenness to attain self sufficiency in the country by increasing its indigenous production in public interest attained? (3) The commitment made by the Government of Uttar Pradesh to the Hindalco to supply power at cheap rate as noticed in the report of Dr. Nagarajarao.
(4) The effect of imposition of duty on the margin of profit available to Hindalco.
The provisions of sub section (4) of section 3 have been noticed.
As we have read the said provisions, it appears to us that the dominance of public interest is significant and we refer to the various factors, namely, (a) prevailing charges for supply of energy in any area, (b) the generating capacity of any plant, (c) the need to promote industrial production generally or any specified class therof and other relevant factors and then taking all these factors into consideration, in public interest, to fix different rates of electricity duty in relation to different classes of consumption of energy or allow any exemption from payment thereof.
Various grounds have been made out.
Shri Sen for the respondents is right that in view of the ceilings prescribed the power conferred upon the State under section 3(1) of the Act by itself is valid and does not amount to excessive delegation.
See also in this connection the observations of this Court in Devi Das Gopal Krishnan & Ors.
vs State of Punjab & Ors., [1967] 3 S.C.R. 557 and Ram Bachan Lal vs The State of Bihar, ; Shri Trivedi, learned Additional Advocate General, State of Uttar Pradesh drew our attention to the case of Panama Canal Company vs Grace Line, ; 2 Lawyers ' Edn. 788, where at page 793 of the report while dealing with the facts of that case Justice Douglas observed that, as it was seen in that case, the conflict raged over questions that at heart involved problems of statutory construction and cost accounting: whether an operating deficit in the auxiliary or supporting activities was a legitimate cost in maintaining and operating the Canal for purpose of the toll formula.
These are matters on which experts might disagree; these involve nice issues of judgment and choice, which required the exercise of informed discretion.
In those circumstances Justice Douglas observed that the case was, therefore, quite unlike the situation where a statute created a duty to act and an equity court was asked to compel the agency to take the prescribed action.
What was emphasised was that the matter should be far less cloudy, much more clear for courts to intrude.
It is also in this connec 671 tion necessary that if technical considerations are involved the Court feels shy to interfere.
Reliance was placed on the observations of this Court in Vincent Panikurlangara vs Union of India and others; , There the writ petition involved the claim for withdrawal of 7000 fixed dose combinations and withdrawal of licences of manufacturers engaged in manufacture of about 30 drugs which have been licensed by the Drugs Control Authorities; the issues that fell for consideration are not only relating to technical and specialised matters relating to therapeutic value, justification and harmful side effects of drugs but also involved examination of the correctness of action taken by respondents 1 and 2 therein on the basis of advice; the matter also involved the interest of manufacturers and traders of drugs as also the interest of patients who require drugs for their treatment.
This Court reiterated that in view of the magnitude, complexity and technical nature of the enquiry involved in the matter as also the far reaching implications of the total ban of certain medicines for which the petitioner had prayed, a judicial proceeding of the nature initiated was not an appropriate one for determination of such matters.
The technical aspects which arose for consideration in a matter of that type could not be effectively handled by a court.
This Court also reiterated that similarly the question of policy which was involved in the matter was also one for the Union Government keeping the best interest of citizens in view to decide.
No final say in regard to such aspects came under the purview of the court.
The High Court in the instant case reiterated the necessity of cheap electricity and if cheap electricity was not made available, the cost of indigenous aluminium would go up.
It would necessitate import of aluminium causing drain on the foreign exchange of the country.
On the other hand, the learned Additional Advocate General for the State of U.P. contended and in our opinion rightly that primary purpose of the Act as stated in the preamble was to raise the revenue for the development projects.
Whether in a particular situation, rural electrification and development of agriculture should be given priority or electricity or development of aluminium industry should be given priority or which is in public interest, in our opinion, are value judgments and the legislature is the best judge.
The High Court in its impugned judgment referred to the order of the Government.
The said order read as follows: "The Corporation has also emphasized that the Government of India is spending a huge sum of money in foreign exchange to meet the requirements of aluminium in India, 672 with a view to increasing the aluminium production by Hindalco Electricity should be made available at cheap rate and exemption should be granted to the Corporation from payment of electricity duty.
In this connection it may again be pointed out that the imposition of electricity duty will not affect the productivity of aluminium by M/s Hindalco as electricity duty is negligible as clearly made out in the earlier paragraphs.
Accordingly, the electricity duty is not likely to have any adverse effect on foreign exchange of the country.
Referring to the aforesaid observations of the State Government, the High Court was of the view that the said observations of the State Government clearly showed that the State Government did not address itself to the need of promoting aluminium industry for increasing production of aluminium which would in the long run save foreign exchange.
We are unable to agree.
What was paramount before introduction of the development programme and how the funds should be allocated and how far the Government considers a negligible increase and rise in the cost of aluminium for the purpose of raising monies for other development activities are matters of policy to be decided by the Government.
It is true as the High Court has pointed out that the question regarding public interest and need to promote indigenous industrial production was related with the question of exemption of duty.
But what the High Court missed, in our opinion with respect, was that a matter of policy which should be left to the Government.
Reading the order of the Government, it appears to us that the Government had adverted itself to all the aspects of sub section (4) of section 3 of the Act.
It is true that certain amount of encouragement was given to Hindalco to start the industry in a backward area.
After considerable point of time the very low rate of duty was charged.
But if we need other sectors of growth and development for example, food, shelter, water, rural electrification, the need for encouragement to aluminium industry had to be subordinated by little high cost because that is a matter on which the Government as representing the will of the people is the deciding factor.
Price fixation, in our opinion, which is ultimately the basis of rise in cost because of the rise of the electricity duty is not a matter fol investigation of Court.
This question was examined by this Court in Union of India and another vs Cynamide India Ltd. and another, [1987] 2 S.C.C. 720 where one of our learned brothers who delivered the judgment of the High Court of Allahabad was a party.
There in exercise of the powers under section 3(2)(c) of the Essential Commodities Act.
the Drugs (Prices Control) order, 673 1979 was made.
The Central Government thereafter issued notification thereunder.
At page 741 of the report, Chinnappa Reddy, J. speaking for the Court referring to a passage of the Administrative Law by Schwartz with approval expressed the view that those powers were more or less legislative in character.
Fixation of electricity tariff can also to a certain extent be regarded of this category.
Chinnappa Reddy, J. Observed at page 735 of the report that price fixation is more in the nature of a legislative activity than any other.
He referred to the fact that due to the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion.
Administrative, quasi judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi judicial activity.
Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice '.
Reddy, J. insisted that it is necessary that the line must sometimes be drawn as different legal rights and consequences may ensue.
It appears to us that sub section (4) of section 3 of the Act in the set up is quasi legislative and quasi administrative in so far as it has power to fix different rates having regard to certain factors and in so far as it has power to grant exemption in some cases, in our opinion, is quasi legislative in character.
Such a decision must be arrived at objectively and in consonance with the principles of natural justice.
It is correct that with regard to the nature of the power under section 3(4) of the Act when the power is exercised with reference to any class it would be in the nature of subordinate legislation but when the power is exercised with reference to individual it would be administrative.
Reference was made in this connection to the cases of Union of India vs Cynamide India Ltd. (supra) and P.J. Irani vs State of Madras; , at 179 180 and 181 182.
If the exercise of power is in the nature of subordinate legislation the exercise must conform to the provisions of the statute.
All the conditions of the statute must be fulfilled.
The High Court was right only to the limited extent that all the relevant considerations must be taken into account and the power should not be exercised on irrelevant considerations but singular consideration which the High Court, in our opinion, seems to have missed in the judgment under appeal, is these factors, namely, the prevailing charges for supply of energy in any area, the generating capacity of any plant, the need to promote industrial production generally or any specified class thereof and other relevant factors cannot be judged disjointly.
These must be judged in adjunct to the public interest and that public interest is as mentioned in the Preamble to raise revenue.
674 Reference was also made to the observations of the Judicial Committee in Ryots of Garabandho and others vs Zamindar of Parlakimedi and another, A.I.R. 1943 P.C. 164 where the Judicial Committee had to deal with the proviso to section 30 of the Act.
It read as follows: "In settling rents under this section the Collector shall presume, unless the contrary is proved, that the existing rent or rate of rent is fair and equitable and shall have regard to the provisions of this Act for determining rates of rent payable by a ryot.
" Viscount Simon L.C.
Observed that the view taken by the majority of the Collective Board of Revenue in making the order which is now complained of, is that the requirement to "have regard to" the provisions in question has no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration.
In their view the prime duty of the Revenue officer under Chap.
II was to fix a fair and equitable rent, and though he must be guided by the principles underlying such provisions as were contained in chap.
3, he was not strictly bound by such provisions.
The Judicial Committee observed at page 180 of the report as follows: "Having regard to the long time that had elapsed since the last tentative settlement of rent in 1867 68, to the prodigions rise in prices that had taken place since then, and to the general economic improvement of this part of the country, the Collective Board considered that an enhancement of 37 1/2 per cent, would not be oppressive and directed the Revenue officer to reduce to that figure the enhancement of 100 per cent, which he had made.
This view of the effect of the direction to "have regard to" the provisions of the Act for determining rates of rent payable by a ryot is supported by the decision of the High Court in at 506.
It is also confirmed by certain observations of Reilly J. in at p. 486, where the learned Judge said: Where the settling officer has to deal only with such questions as would arise in a suit for commutation, for enhancement, or reduction of money rent, under section 168(2) he must be guided by the appropriate principles as set out in the Act, but there is no doubt that his settlement may embrace a much wider field of 675 question and whenever he has not merely to adjust the lawful rent but to fix what is fair and equitable in variation from the lawful rent which can be exacted in a suit, his settlement is clearly something which no civil Court could do unless specially empowered.
Their Lordships find themselves on this matter in agreement with the view taken by the majority of the Collective Board.
It is not possible to peruse the proceedings of the Special Revenue officer in this case without seeing that a number of matters besides the rise in prices of staple food crops were considered by him, and had to be considered by him, if he was to carry out his duty under chap.
He observed in para.
30 of the final proceedings dated 10th December 1935: I hold that the present settlement is also a fresh and initial settlement wherein everything has to be re classified afresh and new rates of rent have to be fixed.
It is not therefore a case of enhancement but of fixing and introducing a new rate of rent based on the principles of equity and fairnes as laid down in Chap.
II, Estates Land Act.
" The High Court in the impugned judgment commented that it was a mandatory duty to separately consider these relevant factors and has committed the error against which the Judicial Committee cautioned.
The High Court was of the view at page 10 of the judgment that there was a mandatory duty to consider the factors mentioned hereinbefore.
All that the section requires was that these factors should be borne in mind but these must be subordinate to the executive decision of the need for public interest.
In Saraswati Industrial Syndicate Ltd. etc.
vs Union of India; , the Sugar (Control) order, 1966 came up for consideration.
Clause 7(2) of the Sugar (Control) order had been set out at page 958 of the report.
It read as follows: "Such price or maximum price shall be fixed having regard to the estimated cost of production of sugar determined on the basis of the relevant schedule of cost given in the Report of the Sugar Enquiry Commission (October 1965), subject to the adjustment of such rise in cost subsequent to the Report aforesaid as, in the opinion of the Central 676 Government, cannot be absorbed by the provision for contingencies in the relevant schedule to that Report.
" Beg, J. as the learned Chief Justice then was, observed that clause 7(2) set out above required the Government to fix the price "having regard to the estimated cost of production of sugar on the basis of the relevant schedule".
The expression "having regard to" only obliges the Government to consider as relevant data material to which it must have regard to.
In so far as the High Court held in this judgment that the power conferred on the State Government was of the administrative nature, the High Court may not be in error.
But the High Court held that it should be in consonance with the principles of natural justice, in our opinion it must be in accordance with natural justice to a limited extent and such principles of natural justice are enunciated by this Court in several decisions, namely, A.K. Kraipak vs Union of India, A.I.R. 1970 S.C. 150; M/s. Travancore Rayons Ltd. vs Union of India, A.I.R. 1971 S.C. 862 and Amal Kumar Ghatak vs State of Assam & others, A.I.R. 1971 Assam 32.
Keeping in view the aforesaid principles, the High Court examined the petitioners ' grievance.
Dr. Rajagopalan submitted his report to the State Government in January, 1979.
Admittedly, Dr. Rajagopalan placed reliance on the report of Working Group on Aluminium set up by the Government of India in 1970 and various other reports of Bureau of Industrial Cost and Price (hereinafter refer red to as 'BICP '), submitted to the Government from time to time.
It is based on the balance sheet of the appellants and had been made available to the respondents.
We have examined the correspondence that passed between the parties and we are of the opinion that there was no violation of the principles of natural justice because the relevant datas were made available to the appellants.
It is true that the principles of natural justice must be adhered to.
In this connection reference may be made to S.D. Hotop "Principles of Australian Administrative Law 6th Edition, Pages 210 212, Cases and Materials on Review of Administrative Action (2nd Edition) by S.D. Hotop, Wade on Administrative Law, 5th Edition, pages 506/507 and Bennion on Statutory Interpretation, 1984 Edition, pages 140 141.
The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
Similarly, if the power has been exercised on a non consideration or non application of mind to re 677 levant factors the exercise of power will be regarded as manifestly erroneous.
If a power (whether legislative or administrative) is exercised on the basis of acts which do not exist and which are patently erroneous, such exercise of power will stand vitiated.
See Commissioner of Income Tax vs Mahindra & Mahindra Ltd. Ors., ; at 786 787.
The present case relates to the particular facts and circumstances of an individual, namely, Hindalco.
To the extent, its claim for exemption was entitled to the consideration.
In our opinion, the facts and circumstances of the case were examined in consonance with the principles of natural justice.
All relevant factors were given consideration but subject to public interest.
The High Court considered whether electricity duty was included in the prices of aluminium fixed by the Central Government.
On this aspect our attention was drawn on behalf of the respondents at pages 372 387 of the judgment in Volume B.
It was submitted that the assumption that electricity duty was included in the prices of Hindalco fixed by the Central Government formed a basic and a very important consideration in the making of the impugned order.
We are unable to agree.
It was also submitted that the said assumption was made by the State Government and Dr. Rajagopalan on the basis of the reports of BICP and the Working Group.
The High Court on a perusal of the reports of the BICP and the Working Group came to the conclusion that the said assumption of the State and Dr. Rajagopalan is based on non existent fact and/or is patently erroneous.
Apparently such examination by the High Court was not warranted.
It was pointed out that Dr. Rajagopalan had determined the adequacy of the profits of Hindalco by relating the same to the original subscribed capital only and had completely ignored the reserves of Hindalco.
The aforesaid basis, it was held by the High Court is contrary to the well accepted principles of return on capital employed/net worth.
It is true that Hindalco has made profits much more than it had before the imposition of the duty.
The adequacy of the profits or whether it made much more profits is not a consideration which must prevail over public interest and the Government having taken into consideration this factor, in our opinion, did not commit any error and the High Court was in error in setting aside the order of the Government.
It is true that the cost of power to similar industry in other State was a relevant factor and the State was under a mandatory duty to consider the same.
The State has taken note of all those factors and has observed that M/s. Hindalco is being supplied with electrical energy at a very nominal rate and taking into consideration the prevailing practice of levy of electricity duty in other States as well as the provisions stated in section 3(4), the Government have come to the conclusion that there is no justification for allowing 678 exemption from electricity duty to M/s. Hindalco.
The Government did not commit any error which required interference by the High Court in the manner it did .
The assurance of cheap power factor was there.
But the assurance of cheap power factor does not foreclose the public interest of raising public revenue.
In July, 1975 the Central Government fixed uniform prices of aluminium for all the producers of aluminium.
The Central Government also fixed uniform sale prices of aluminium applicable to all producers.
The Central Government also fixed individual retention prices (based, inter alia, on the cost of production) for each individual producer.
All producers of aluminium were to sell aluminium at the uniform sale prices.
Any producer whose retention prices were lower than the sale prices had to pay difference into the Aluminium Regulation Account.
Any producer whose retention prices were higher than the sale prices was entitled to receive the difference from the Aluminium Regulation Account.
Price, therefore, was no question of the respondent being loser or sufferer.
It is true that electricity duty was not included and was also considered in the fixation of the price.
That is the only pre dominant factor, having regard to the technical nature of the order.
The impugned order does not suffer from the vice of non application of mind or non consideration of the relevant factors and the High Court was in error in interfering with the order of the Government.
We are clearly of the opinion that the High Court was in error in interfering with the order in the manner it did.
The High Court should not have interfered for interference by the High Court the matter should have been far less cloudy and far more clear.
Natural justice in the sense that a party must be heard beforehand need not be directly followed in fixing the price.
Reference in this connection may be made to the observations of this Court in Prag Ice & oil Mills and another etc.
vs Union of India; , , where at page 325 of the report, this Court observed that in the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid.
In this connection reference may also be made to Shree Meenakshi Mills Ltd. vs Union of India, , where this Court dealing with the Cotton Textile (Control) order, 1948 at page 419 of the report observed that if fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions.
679 Unreasonableness and natural justice have to be judged in that context.
In that view of the matter non supply of the basis of the report of the BICP does not by itself, in our opinion, in the facts and circumstances of the case make the order of the State Government vulnerable to challenge.
In Laxmi Khandsari etc.
vs State of U. P. & Ors ; this Court was dealing with the and the Sugarcane (Control) order, 1966 and observed that in determining the reasonableness of restrictions imposed by law in the field of industry, trade or commerce, the mere fact that some of the persons engaged in a particular trade may incur loss due to the imposition of restrictions will not render them unreasonable because it is manifest that trade and industry pass through periods of prosperity and adversity on account of economic, social or political factors.
At page 129 of the report rejecting the plea that before fixing a price the rules of natural justice should be adhered to, this Court emphasised, referring to the observations in the case of Saraswati Industrial Syndicate Ltd. vs Union of India, ; that price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material.
There is scope for trial and error in such sphere.
Judged by that standard, the impugned order in this case, in our opinion, is not bad.
In support of the proposition that the principles of natural justice had been violated in passing the impugned order, five decisions were referred to, namely, State of Orissa vs Mr. (Miss) Binapani Dei, ; ; A.K Kraipak vs Union of India, A.I.R ; Mohd. Rashid vs State of U.P. ; ; S.L. Kapoor vs Jagmohan and others; , and Maneka Gandhi vs Union of India, A.I.R. 1978 S.C. 597.
The principles of these cases will have no application to the facts of this case.
There has been no violation of the principles of natural justice to the extent applicable to the order of this nature.
Reference was made to the observations in the case of India Sugars & Refineries Ltd. vs Amravathi Service Co operative Society Ltd.; , where at page 746 of the report, this Court observed that the power to grant exemption to factories from payment of additional price is intimately connected with the right of sugarcane growers to claim additional price.
In granting of such power, principles of natural justice should be followed.
In such a case a duty to act judicially does arise.
680 This Court in Commissioner of Income Tax, Bombay and others A vs Mahindra and Mahindra Limited & Ors., ; at page 786 of the report, dealt with the parameters of the Court 's power of judicial review of administrative or executive action or decision.
Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same.
See also the observations at page 787 of the report.
In this case the parameters had been adhered to.
All relevant factors had been borne in mind.
It is true that each factor had not been independently considered, but these had been borne in mind.
In our opinion, the Government did not act in violation either of the principles of natural justice or arbitrarily or in violation of the previous directions of the High Court.
In the premises, the High Court was in error in setting aside the order of the State Government in its entirety.
The High Court should have allowed the claim of Hindalco for the reduced rate of bill on the basis that Renusagar Power Plant was its own source of generation under section 3(1)(c) and the bills should have been made by the Board on that basis.
But the High Court was in error in upholding the respondents ' contention that the State Government acted improperly and not in terms of section 3(4) of the Act and in violation of the principles of natural justice.
We, therefore, allow the appeal to the extent indicated above and set aside the judgment of the Allahabad High Court to that extent and restore the State Government 's impugned order subject to the modification of the bills on the basis of own source of generation.
We, therefore, direct that the electricity bills must be so made as to give Hindalco the benefit of the rate applicable to its own source of generation from Renusagar Plant.
The appeal is disposed of in those terms.
The electricity bills must be computed as indicated above.
After recomputation and presentation of such bills the respondents will pay the same within two months thereof.
In view of the facts and circumstances of the case, the parties will pay and bear their own costs.
RANGANATHAN, J. I agree.
On the second issue, I think it is difficult to define the Precise nature of the power conferred on the 681 State Government under Section 3(4) of the Electricity Duty Act and l A have doubts whether the sub section can at all be interpreted as conferring a right on individual consumers to require that, in the light of the material adduced by them, the rates applicable to them should have been fixed differently or that they should have been exempted from duty altogether.
However, it is unnecessary to pursue this aspect further as I agree with the conclusion of my learned brother that, in this case, the respondent 's representations have been fully considered and the requirements of natural justice have been fulfilled and that there is no warrant to interfere with the order of the State Government.
S.L. Appeal disposed of.
|
Disallowing request for exemption from levy of electricity duty under sub section (4) of section 3 of the U.P. Electricity Duty Act, 1952 ( 'the Act '), as amended, the appellants issued notice of demand asking respondent No. 1, Renusagar Power Co., to pay electricity duty on the energy supplied by it to respondent No. 2, Hindalco, for industrial purposes.
Being aggrieved by the decision of the State Government, the respondents filed a writ petition in the High Court.
The High Court allowed the writ petition, holding that the impugned order of the State Government was not maintainable in law, and quashing the order as well as the notice of demand abovesaid.
The State Government was also directed to consider the request of the respondents for exemption in accordance with the directions issued by the High Court in the earlier Writ Petition No. 4521 of 1972 filed by the respondents.
Being aggrieved by the decision of the High Court the appellants moved this Court for relief.
Disposing of the appeal, the Court, ^ HELD: Per Sabyasachi Mukharji, J. There were two different aspects of the case to be considered.
One was whether the respondent No. 1, the Renusagar Power Co. Ltd., was 'own ' source of generation of electricity for respondent No. 2, the Hindalco, under section 3(1)(c) of the Act.
The second aspect was whether the order passed by the State Government was in accordance with the principles of natural justice in so far as the same were applicable to the case.
[646C] 628 From 1952 to 1970, no duty was payable if electricity was generated from own source of energy.
From 1970 to 1973, duty of one paisa was payable in respect of electricity supplied from own source of generation.
After 1973, no duty was payable in respect of electricity supplied from own source of generation.
[646D] Renusagar, a 100% subsidiary of Hindalco, wholly owned and controlled by Hindalco, was incorporated in March, 1964.
Hindalco had established the power plant through the agency of Renusagar to avoid complications in the case of a possible take over of the power plant by the State Electricity Board as power generation is generally not permitted in normal conditions in the private sector.
The respondents highlighted that the sanction under section 28 of the , given to Renusagar and its amendment established that Renusagar was not a normal type of sanction under Section 23 of the 1910 Act as the holder could supply power only to Hindalco.
All these steps for the expansion of the power in Renusagar so as to match the power requirement of Hindalco 's expansion were taken by Hindalco even though Renusagar had been incorporated.
Applications for all the necessary sanctions and permissions were made by Hindalco.
Permissions and sanctions were first intimated to Hindalco even though Renusagar was in existence.
Changes in the sanctions and/or permissions were obtained by Hindalco and not Renusagar.
The expansion of the power plant in Renusagar was to exactly match the requirements of Hindalco for the production of Aluminium.
The expansion of the power plant in Renusagar was part and parcel of the expansion of the aluminium plant of Hindalco.
All the steps to set up the power plant in Renusagar and its expansion were taken by Hindalco.
Hindalco consumed about 255 MW power out of which 250 M W came from Renusagar.
There was only one transmission line going out of Renusagar and that went to Hindalco, which had complete control over Renusagar.
The agreement between Renusagar and Hindalco indicated this was not a normal sale purchase agreement between two independent persons at arms length.
The price of electricity was determined according to the cash needs of Renusagar.
This covenant also showed complete control of Hindalco over Renusagar.
All persons and authorities dealing and conversant with this matter had consistently treated Renusagar as own source of generation of Hindalco.
In the power cuts matter under section 22B of cut was imposed on Hindalco on the footing that it had its own source of generation.
All the authorities including the State and Board had all along treated Renusagar as own source of generation of Hindalco.
It was thus contended that Renusagar must he treated as alter ego of Hindalco, i.e., 629 Own source of generation of Hindalco within the meaning of section 3(1)(c) of the Duty Act, and that consumption clearly fell within that section.
[653C H; 655C F] 'Own source of generation ' is an expression connected with the question of lifting or piercing the corporate veil.
The appellants contended that in this case there was no ground for lifting the corporate veil, urging that there was no warrant either in law or in fact to lift the corporate veil and treat Renusagar 's plant as Hindalco 's own source of generation.
[657B C] In the expanding horizon of modern jurisprudence, lifting of corporate veil is permissible.
Its frontiers are unlimited.
It must, however, depend primarily on the realities of the situation.
The aim of legislation is to do justice to all the parties.
The horizon of the doctrine of lifting corporate veil is expanding.
In this case, indubitably, it is correct that Renusagar was brought into existence by Hindalco in order to fulfil the condition of industrial licence of Hindalco through production of aluminium.
It was also manifest from the facts that the model of the setting up of power station through the agency of Renusagar was adopted by Hindalco to avoid complications in case of takeover of the power station by the State or the Electricity Board.
All the steps for establishing and expanding the power station were taken by Hindalco and Renusagar was wholly owned subsidiary of and completely controlled by Hindalco.
Even the today affairs were controlled by Hindalco.
Renusagar had never indicated independent volition.
Whenever felt necessary, the State or the Board themselves had lifted the corporate veil and treated Renusagar and Hindalco as one concern and the generation in Renusagar as the own source of generation of Hindalco.
Indubitably, the manner of treatment of the power plant of Renusagar as the power plant of Hindalco and the Government taking full advantage of the same in the case of power cuts and denial of supply of 100% power to Hindalco underlined the facts and implied acceptance and waiver of the position that Renusagar was a power plant owned by Hindalco.
In this view of the matter, the corporate veil should be lifted and Hindalco and Renusagar be treated as one concern and Renusagar 's power plant must be treated as the own source of generation of Hindalco and should be liable to duty on that basis.
In the premises the consumption of such energy by Hindalco will fall under section 3(1)(c) of the Act.
[667E H; 688A B] The veil of corporate personality even though not lifted sometimes is becoming more and more transparent in modern company juris 630 prudence.
The ghost of the case of Aron Salomon vs A. Salomon & Co. Ltd., ; at 27, 30, 31, still visits frequently the hounds of Company Law but the veil has been pierced in many cases.
However, the concept of lifting the corporate veil is a changing concept and is of expanding horizon.
[668C D] The appellant was in error in not treating Renusagar 's power plant as the power plant of Hindalco and not treating it as the own source of energy.
The respondent was liable to duty on the same and on that footing alone; this was evident in view of the principles enunciated and the doctrine now established by way of decision of this Court in Life Insurance Corpn.
Of India vs Escorts Ltd. & ors., [1985] Suppl.
3 S.C.R. 909, that in the facts of this case sections 3(1)(c) and 4(1)(c) of the Act are to be interpreted accordingly.
The person generating and consuming energy were the same and the corporate veil should be lifted.
Hindalco and Renusagar were in extricably linked up together.
Renusagar had in reality no separate and independent existence apart from and independent of Hindalco.
Consumption of energy of Hindalco is consumption of Hindalco from its own source of generation.
Rates of duty applicable to own source of generation had to be applied to such consumption 1 paisa per unit for the first two generating sets and nil rate in respect of 3rd and 4th generating sets.
In the facts of this case, the corporate veil must be lifted and Hindalco and Renusagar should be treated as one concern and the consumption of energy by Hindalco must be regarded as consumption by Hindalco from own source of generation.
The appeal directed against this finding of the High Court was rejected.
[668D H;669A B] Coming to the challenge to the order quashed by the High Court, the dominance of public interest is significant according to the provisions of sub section (4) of Section 3.
In view of the ceilings prescribed, the power conferred upon the State under Section 3(1) of the Act by itself is valid and does not amount to excessive delegation.
The primary purpose of the Act was to raise the revenue for development projects.
Whether, in a particular situation, rural electrification and development of agriculture should be given priority or electricity or development of aluminium industry should be given priority or which is in public interest, are value judgments and the legislature is the best judge.
What was paramount before introduction of the development programme and how the funds should be allocated and how far the government considers a negligible increase and rise in the cost of aluminium for the purpose of raising monies for other development activities are matters of policy to be decided by the Government.
It is 631 true that the question regarding public interest and need to promote indigenous industrial production was related with the question of exemption of duty, but a matter of policy should be left to the Government.
In its order, the Government had adverted itself to all the aspects of sub section (4) of section 3 of the Act.
Certain amount of encouragement was given to Hindalco to start the industry in a backward area.
After considerable period, a very low rate of duty was charged.
If other sectors of growth and development are needed, for example, food, shelter, water, rural electrification, the need for encouragement to aluminium industry had to be subordinated by a little high cost because it is a matter on which the Government as representing the will of the people is the deciding factor.
Price fixation, which is ultimately the basis of rise in cost because of the rise of the electricity duty is not a matter for investigation of Court, Sub section (4) of section 3 of the Act in the set up is quasi legislative and quasi administrative in so far as it has power to fix different rates having regard to certain factors and in so far as it has power to grant exemption in some cases, is quasi legislative in character.
Such a decision must be arrived at objectively and in consonance with the principles of natural justice.
With regard to the nature of the power under section 3(4) of the Act when power is exercised with reference to any class it would be in the nature of subordinate legislation but when the power is exercised with reference to individual it would be administrative.
If the exercise of power is in the nature of subordinate legislation the exercise must conform to the provisions of the statute.
The High Court was right only to the limited extent that all the relevant considerations must be taken into account and the power should not be exercised on irrelevant considerations, but singular consideration which the High Court had missed in this case is the factors, namely, the prevailing charges for the supply of energy in any area, the generating capacity of any plant, the need to promote industrial production generally or any specified class thereof and other relevant factors cannot be judged disjointly.
These must be judged in adjunct to the public interest and that public interest is as mentioned in the preamble to raise revenue.
All that the section requires is that these factors should be borne in mind but these must be subordinate to the executive decision of the need for public interest.
The power conferred on the State Government of administrative nature must be in accordance with the principles of natural justice to a limited extent.
[671F G; 672D E; 673D H] The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
Similarly,if the power has 632 been exercised on a non consideration or non application of mind to relevant factors, the exercise will be regarded as manifestly erroneous.
If a power, legislative or administrative, is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated.
This case related to the particular facts and circumstances of an individual Hindalco.
The facts and circumstances of the case had been examined in consonance with the principles of natural justice and considered subject to public interest.
Hindalco had made profits much more than it had before the imposition of the duty.
The adequacy of the profits or whether it made much more profits is not a consideration which must prevail over public interest and the Government having taken into consideration this factor, did not commit any error and the High Court was in error in setting aside the order of the Government.
The cost of power to a similar industry in other States was a relevant factor and the State was under a mandatory duty to consider the same.
The State had taken note of all these factors, and considering the prevailing practice of levy of electricity duty in other States as well as the provisions of section 3(4), the Government came to the conclusion that there was no justification for allowing exemption from electricity duty to Hindalco, and did not commit any error.
The factor of assurance of cheap power by the Government did not fore close the public interest of raising public revenue.
The impugned order did not suffer from the vice of non application of mind or non consideration of the relevant factors.
The High Court was in error in interfering with the order of the Government in the manner it did.
[676G H; 677A H; 678A] Natural justice in the sense that a party must be heard before hand need not be directly followed in fixing the price.
l here is scope for trial and error in the sphere of price fixation which is more in the nature of a legislative measure.
Judged by that standard, the impugned order in this case was not bad.
The Government did not act in violation either of the principles of natural justice or arbitrarily or in violation of the previous directions of the High Court.
[678F; 679D; 680C] The High Court should have, allowed the claim of Hindalco for the reduced rate of bill on the basis that Renusagar Power plant was its own source of generation under section 3(1)(c) and the bills should have been made by the Board on that basis.
The High Court was in error in upholding the respondents ' contention that the State Government acted improperly and not in terms of section 3(4) of the Act and in violation of the principles of natural justice.
The Judgment of the High Court was set aside to the extent indicated above and State Government 's impugned order was restored subject to the modification of the bills on 633 the basis of own source of generation; Hindalco must be given the benefit of the rate applicable to its own source of generation from Renusagar plant.
[680D F] Per section Ranganathan, J (Concurring): Agreeing, his Lordship held that on the second issue it was difficult to define the precise nature of the power conferred on the State under Section 3(4) of the Electricity Duty Act, and expressed doubts whether the sub section could at all be interpreted as conferring a right on individual consumers to require that, in the light of the material adduced by them, the rates applicable to them should have been fixed differently or that they should have been exempted from duty altogether.
However, his Lordship observed that it was unnecessary to pursue this aspect further as his Lordship agreed with the conclusion of Sabyasachi Mukharji, J. that in this case the respondent 's representations had been fully considered and the requirements of natural justice had been fulfilled and that there was no warrant to interfere with the order of the State Government.
[680H; 681A B] Chiranjit Lal Anand vs State of Assam & Anr., [1985] Suppl.
2 S.C.R. 385; State of U.P. vs Hindustan Aluminium Corpn.
Ltd., ; ; J. K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of V.P. & Ors., ; ;M/s. Girdharilal & Sons vs
BalbirNath Mathur & Ors., ; at 241, 246; State of Tamil Nadu vs Kodaikanal Motor Union (P) Ltd., at 100; D. Sanjeevayya vs Election Tribunal, A.P. & Ors., ; , 492; Western Coalfields Ltd. vs Special Area Development Authority, Korba & Anr., ; at 17; Andhra Pradesh State Road Transport Corpn.
vs The l.T.O. & Anr.; , ; Tamlin vs Hannaford, ; Aron Salomon vs A. Salomon & Co. Ltd., ; at 27, 30, 31; Western Coalfields Ltd. in Rustom Cavasjee Cooper vs Union of India; , at 555; Bank Voordel En Scheepvaart N. V. vs Stalford, ; Kodak Ltd. vs Clark, ; DHN Food Distributors Ltd. & Ors.
vs London Borough of Tomer Hamlets, ; Harold Holdsworth & Co. (Wakefield) vs Caddies, ; Scottish Co operative Wholesale Society Ltd. vs Meyer and Anr., ; Charterbridge Corpn.
Ltd. vs Lloyds Bank Ltd. & Anr.
, ; Mrs. hall Richards Machine Co. Ltd., vs Jewitt (H.M.) Inspector of Taxes, , 52, 525, M/s. Spencer & Co. Ltd., Madras vs The Commissioner of Wealth Tax, ; Turner Morrisson & Co. Ltd. vs Hungerford Investment Trust Ltd., ; Life Insurance Corpn.
Of India vs Escorts Ltd. & Ors., [1985] 634 Suppl.
3 SCR 909; Devi Das Gopal Krishnan & Ors.
vs State of Punjab & Ors.
, ; ; Ram Bachan Lal vs The State of Bihar, ; ; Panama Canal Company vs Grace Line, ; 2 Lawyers ' Edn. 788; Vincent Panikurlangara vs Union of India & others, [1987] 2 S.C.C. 165; Union of India & Anr.
vs Cynamide India Ltd. & Anr.
, ; P.J. Irani vs State of Madras, ; at 179 180, 181, 182; Ryote of Garabandho and Ors.
vs Zamindar of Parlakimedi & Anr., AIR 1943 P.C. 164; Saraswati Industrial Syndicate Ltd. etc.
vs Union of India; , ; A. K. Kraipok vs Union of India, AIR 1970 S.C. 150; M/s. Travancore Rayons Ltd. vs Union of India, AIR 1971 S.C. 862; Amal Kumar Ghatak vs State of Assam & Ors., AIR 1971 Assam 32; Commissioner of Income Tax vs Mahindra & Mahindra Ltd. & Ors., ; at 786, 787; Prag Ice 293; Shree Meenakshi Mills Ltd. vs Union of India, ; Laxmi Khandsari, etc.
vs State of U.P. & Ors.
, ; ; State of Orissa vs (Miss) Binapani Devi, ; ; Mohd. Rashid vs State of U.P., ; ; section L. Kapoor vs Jagmohan & Ors., AIR 1979 S.C. 592; Maneka Gandhi vs Union of India, AIR 1978 S.C. 597; India Sugars & Refineries Ltd. vs Amrawathi Service Co operative Society Limited & Ors.
, ; , referred to.
|
1 The Special Leave Petition arises from an interlocutory order dated 7 March
2022 of a Division Bench of the High Court of Judicature at Bombay in Public Interest
Litigation (L) No 9775 of 2020.
2 The petitioners claim to be aggregators within the meaning of Section 2(1A) of
the Motor Vehicles Act 19881, as amended by Act 32 of 2019. An aggregator is defined
to mean a digital intermediary or market place for a passenger to connect with a driver
for the purpose of transportation. Section 93 was amended by the Amending Act so
as to encompass the business of aggregators. Sub-section (1) of Section 93, inter
alia, stipulates that no person shall engage himself as an aggregator unless he has
obtained a licence from such authority and subject to such conditions as may be
prescribed by the State Government. As in the case of other statutes, Section 2(32)
defines the expression “prescribed” to mean prescribed by rules made under the Act.
The State Government is conferred with a rule making power, inter alia, by Section
96(1) in terms of which it may make rules for the purpose of carrying into effect the
provisions of Chapter.
3 The first proviso to Section 93(1) stipulates that, while issuing a licence to an
aggregator, the State Government may follow such guidelines as may be issued by
the Central Government. Though draft rules were issued by the State Government,
no rules have been notified by the State Government as of date. The Central
Government has formulated Guidelines in 2020.
4 The provisions noted above have been construed recently in a judgment of this
Court in Roppen Transportation Services Pvt Ltd v Union of India2
5 The Division Bench of the High Court, by the impugned order dated 7 March
2022 , observed that in view of the statutory mandate of Section 93(1), no person
could be allowed to continue as an aggregator without obtaining a licence. Taking note
Special Leave Petition (C) No 3006 of 2023 decided on 7 February 2023
of the fact that the rules were at the draft stage, the High Court has observed that till
such time that draft rules are finalized, the Guidelines of 2020 would hold the field and
any person willing to operate as an aggregator must follow the regulatory framework
brought about by the Guidelines. Taking note of the statutory regime which was
brought into force in 2019 by the amendment of Section 93, the Division Bench
observed that the second respondent had permitted aggregators, such as the
petitioners, to operate in Maharashtra without insisting on compliance with the
statutory requisites and though no statutory licences were obtained. While balancing
the equities, the Division Bench held that instead of restraining the petitioners herein
from operating in the State, it was inclined to grant an opportunity both to the
petitioners and to other unlicensed aggregators to apply for licences as required by
sub-section (1) of Section 93. The following interim directions were issued in
paragraph 10 of the interim order dated 7 March 2022:
“10. For such purpose, we direct the Transport Department of the State Government to issue
appropriate notification in the Official Gazette forthwith and not later than 9th March, 2022
empowering each and every Regional Transport Authority in the State of Maharashtra to act
as the Licencing Authority for grant of license under subsection (1) of section 93 of the Act.
Since the 2020 Guidelines also refer to an Appellate Authority in paragraph 18, it would be
prudent for us to direct that the provisions of section 89 of the Act, which is also part of
Chapter V, may be followed in such a case. The State Transport Appellate Tribunal or similar
such authority, by whatever name called, shall be the Appellate Authority. We are informed
that the Chairman of the Motor Accident Claims Tribunal, Maharashtra, functions in the State
as the State Transport Appellate Tribunal and, therefore, such Tribunal shall also be notified
to be the Appellate Authority for the purposes of the 2020 Guidelines. In the notification to be
published in terms of this order, the Transport Department shall indicate that all the
aggregators operating in the State of Maharashtra may apply for license by 16th March, 2022.
If any application is received by any Regional Transport Authority from the prospective
licensees, earnest endeavour shall be made to convene urgent meeting of such Transport
Authority to consider such application, as early as possible but not later than a fortnight from
date of receipt thereof. In the event the concerned aggregator / prospective licensee agrees
to comply with the conditions laid down in the 2020 Guidelines, issuance of license in its
favour shall not be unnecessarily delayed. In the event any application is rejected, the
concerned aggregator shall be at liberty to file an appeal under section 89 of the Act read
with paragraph 18 of the 2020 Guidelines before the empowered Appellate Authority.”
6 It was against the interim order which was passed in the PIL that this Court was
moved under Article 136 of the Constitution by Uber India Systems Private Limited
(the first petitioner) and Uber India Technology Private Limited (the second petitioner).
7 While issuing notice in these proceedings on 21 April 2022, this Court directed
that the status quo, as it exists, shall be maintained until further orders.
8 During the course of the hearing, it has emerged both from the submissions of
Mr Dhruv Mehta, senior counsel appearing on behalf of the petitioners, and Mr
Siddharth Dharmadhikari, counsel appearing on behalf of the State of Maharashtra,
that a provisional licence was issued to the petitioners. The licence was valid for a
period of thirty days.
9 The grievance of the petitioners is that certain conditions which have been
imposed by the State for the grant of a licence such as: (i) the requirement of
maintaining an office in fifty jurisdictional offices of the Road Transport Authority; and
(ii) maintaining a simulator, as well as certain other aspects may not be practicable for
10 This is a matter of policy which pertains to the jurisdiction of the State
11 We are of the view that it would not be appropriate to continue with the present
proceedings, which arise from an interlocutory order of the High Court. As correctly
observed by the Division Bench of the High Court, in view of the statutory regime
which has come into force with the amendment of Section 93 by the Amending Act of
2019, no person can continue as an aggregator in the absence of a licence. We
accordingly permit the petitioners to apply for a licence within a period of three weeks,
that is, on or before 6 March 2023. Within the aforesaid period, it would be open to
the petitioners to submit a representation to the State Government in regard to the
conditions which were imposed while granting a provisional licence to the petitioners.
The State Government shall, within a period of two weeks from the date of the
submission of the representation, take a considered view on the grievance which has
been set forth in the representation of the petitioners. We clarify that we have not
expressed any observations on the merits of such a grievance. Thereafter, the State
Government may take an appropriate decision so that pending the finalization of the
rules, an appropriate decision is taken in regard to the applications for the grant of
licence in terms of the provisions of Section 93(1) of the Act. If the petitioners have
any subsisting grievance, it would be open to them to move the High Court of
Judicature at Bombay either in the pending Public Interest Litigation or independently
so that the merits of their grievance(s) can be considered by the High Court.
12 Since the interim order of this Court has held the field since 21 April 2022, we
extend its operation till 20 April 2023 in order to enable the petitioners to apply for a
licence and for the State Government to take an appropriate decision. The State
Government, which has to act as a regulator, must take an expeditious decision on
the formulation of an appropriate policy, which may be embodied in terms of the rules
which are framed under the Act. The decision of the State Government should be
taken expeditiously so as to avoid litigation and uncertainty.
13 The Special Leave Petitions are accordingly disposed of.
14 Pending applications, including the application for intervention, stand disposed
|
The Supreme Court on Monday, directed Uber to apply for a license as per Section 93(1) of the Motor Vehicle Amendment Act, 2019 within a period of 3 weeks (on or before 6th March, 2023), to continue its services as an aggregator in the State of Maharashtra. At the same time, the Court also allowed Uber to make a representation to the State of Maharashtra to ventilate its grievances with regard to the conditions imposed while granting provisional license . The bench also asked the State government to expeditiously frame the guidelines for aggregators. The matter was listed before a bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala.
The bench was hearing Uber's challenge to March 7, 2022 order of the Bombay High Court which directed that cab aggregators should comply with Motor Vehicle Aggregator Guidelines 2020. The Aggregator Guidelines were notified by the Central Government in exercise of its powers under Section 93(1) of the Motor Vehicles Act 1988. The High Court bench comprising Chief Justice Dipankar Dutta and Justice Vinay Joshi had directed that the aggregators must apply for license by March 16, 2022 for operating in the State of Maharashtra. In April 2022, while granting an interim relief to Uber against the said order, the Supreme Court had directed status quo on the order of the Bombay High Court. This status quo order has been extended till April 20, 2023 in order to enable the petitioners to apply for a licence and for the State Government to take an appropriate decision.
The Supreme Court noted that the High Court "correctly observed" that, in view of the statutory regime which has come into force with the amendment of Section 93 by the Amending Act of 2019, no person can continue as an aggregator in the absence of a licence.
The Court also referred to the order in Rapido's plea against the Maharashtra government's refusal to grant two-wheeler bike taxi aggregator license to the company. In that order too, the court had noted–
"In terms of the first proviso of Section 93, the state government, while issuing the licence to an aggregator may follow such guidelines as issued by the Central government".
However, the bench stated that it shall be open to Uber to submit a representation to State government. As per the order–
"The state government shall within a period of two weeks of submission of representation take a view of the grievance. The state government may then take an appropriate decision. In case of any subsisting grievance, it shall be open to petitioners to move the Bombay High Court."
The Court also ordered :"The State Government, which has to act as a regulator, must take an expeditious decision on the formulation of an appropriate policy, which may be embodied in terms of the rules which are framed under the Act. The decision of the State Government should be taken expeditiously so as to avoid litigation and uncertainty".
The petitioner, Uber, was represented by Senior Advocate Dhruv Mehta and the State of Maharashtra was represented by Advocate Siddharth Dharmadhikari.
Case Title : Uber India Systems Private Ltd and Another versus Union of India and others |SLP(c) No.5705/2022
For Petitioner(s) Mr. Dhruv Mehta, Sr. Adv. Ms. Pritha Srikumar, AOR Mr. Atharv Gupta, Adv.
For Respondent(s) Mr. Tushar Mehta, Solicitor General Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Ms. Kirti Dadheech, Adv. Respondent-inperson Ms. Fereshte D Sethna, Adv. Ms. Anuradha Dutt, Adv. Ms. Suman Yadav, Adv. Mr. Chaitanya Kaushik, Adv. Ms. Shivani Sanghavi, Adv. Mr. Shubham Airi, Adv. Ms. B. Vijayalakshmi Menon, AOR
Motor Vehicles Act 1988- Section 93- No person can continue as an aggregator in the absence of a licence- Supreme Court directs Uber to apply for license
Motor Vehicles Act 1988- Section 93, 96 - Cab aggregators license- Supreme Court directs State of Maharashtra to expeditiously frame the rules on granting aggregators license so as to avoid litigation and uncertainty
|
ivil Appeal No. 2027 of 1974.
From the Judgment and Order dated 8.10.1973 of the Gujarat High Court in Gift Tax Reference No. 3 of 1971.
Wazir Singh, K.C. Dua and Ms. A. Subhashini for the Appellants.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by certificate under a Deed of Partnership dated 12.11.1958, a Firm by name M/s Chhotalal Vedilal came into existence with three partners, Chhotalal Mohanlal 1044 (the assessee).
Gunvantilal Chhotalal and Pravinchandra Vedilal.
These three partners had 7 annas, 4 annas and 5 annas share respectively in the firm.
This position contin ued until on 9.11.
1961 relevant to assessment year 1963 64 with which this appeal is concerned, a change took place in the constitution of the firm.
Under the new deed, Pravin chandra Vedilal retired; no change took place in respect of Gunvantilal Chhotalal; one Ramniklal Chhotalal became a partner with 4 annas share.
The share of the assessee Chhotalal Mohanlal was reduced to 4 annas; for the remaining 4 annas two minor sons of Chhotalal being Kiritkumar and Deepak Kumar were admitted to the benefits only of the firm Kiritkumar having 12 percent and Deepak Kumar having 13 per cent.
No alteration was, however, made regarding the share capital standing in the name of the assessee.
The Gift Tax Officer came to the conclusion that the assessee had deprived himself of 19 per cent share in the profits and had gifted away 19 per cent share in the good will of the firm in favour of his two minor sons.
He valued the goodwill and treated 19 per cent thereof as taxable gift.
The Appellate Assistant Commissioner before whom the assessee appealed adopted a different stand.
According to him, the gift was not of a share of the goodwill but in respect of the right to receive future profits.
He valued that right and since the amount Was higher than what the Income tax Officer had estimated, following the requirements of law he enhanced the quantum.
In further appeal by the assessee the Tribunal held that in the circumstances of the case there could be no gift of goodwill.
As appears from the statement of the case, the Revenue did not seek to support the order of the Incometax Officer but pleaded for sustain ing the order of the Appellate Assistant Commissioner.
The Tribunal further found that the right to receive future profits could not be subject matter of a gift as the trans fer did not relate to existing property.
According to it, the situation did not give rise to any gift which could be made liable to tax under the Act.
The following question relevant for the purpose of the appeal was referred to the High Court for its opinion at the instance of the Revenue: "Whether on the facts and in the circumstances of the case, the benefit of partnership given to minors Kirit Kumar Chhotalal and Deepak Kumar Chhotalal was a gift under the Gift Tax Act, 1958?" The High Court answered the question against the Revenue and up 1045 held the view of the Tribunal.
This appeal has, therefore, been carried by the Revenue.
In spite of service of notice of appeal the respondent has not appeared.
Counsel appearing in support of the appeal has contended that the order of the Gift Tax Officer was right and the Appellate Assistant Commissioner, the Tribunal and the High Court had gone wrong in holding that the ar rangement under the deed of 9.11.1961 did not give rise to a taxable event under the Act, so far as the assessee was concerned.
"Gift" is defined in section 2(xii) of the Act: " 'Gift ' means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consid eration in money or money 's worth, and in cludes the transfer of any property deemed to be a gift under section 4.
" In support of the appeal, learned counsel further relies upon decisions of different High Courts to which we shall presently refer.
Before doing so it would be appropriate to indicate that in Khushal Khemgar Shah & Ors.
vs Khorsheed Banu Dadiba Boatwalla & Anr., ; this Court has held that goodwill of a firm is an asset, In Commission er of Gift Tax vs Nani Gopal Mondal, after referring to a number of authorities of this Court and different High Courts a Division Bench of the Calcutta High Court concluded thus: "From the cases cited above, it appears that goodwill of a partnership business is a property of the firm in which a partner is entitled to a share.
Although the above cases are under the Estate Duty Act, yet the princi ple laid down in the said cases regarding the nature of goodwill of a firm and the right of a partner in respect thereof is applicable to the instant case.
In this connection, it may be mentioned that according to section 14 of the Indian Partnership Act, property of a firm includes goodwill of the business.
Further, according to section 29(2), if a partner transfers his interest and the transferring partner ceases to be a partner, the transferee is entitled as against the remaining partners to receive the share of the assets of the firm to which the transferring partner is entitled to.
It further appears that under proviso to section 53 of the Indian Partnership Act, 1046 in case of dissolution, a partner or his representative may buy the goodwill of the firm and under section 55(1) of the Act, in settling the accounts of a firm after dissolu tion, the goodwill shall, subject to contract between the parties, be included in the assets and it may be sold either separately or along with other properties of the firm .
Upon transfer, the share or interest in the property of the firm of the transferring partner including the goodwill becomes the share or interest of the transferee.
In the instant case, Nani Gopal Mondal by the deed of gift transferred his share or interest in the firm which included his share of goodwill also.
Hence, for the purpose of payment of gift tax, the value of one third share of the assessee in the goodwill shall also be taken in account." In M.K. Kuppuraj vs Commissioner of Gift Tax, the Madras High Court was called upon to deal with a case of this type where minors were admitted to the benefits of partnership firm and the assessee 's interest in the firm suffered the detriment by relinquishment of a portion of his interest.
The High Court found that relinquishment of 8 per cent profit was in favour of the minors who were admitted without any consideration.
It held that the transaction constituted a gift by the assessee in favour of the minors.
The ratio in Sirehmal Nawalkha vs Commissioner of Income Tax, as also in Commissioner of Gift Tax, Bombay vs Premji Trikamji Jobanputra, ' 17 support the stand of the Revenue that the transaction constitutes a 'gift '.
Once goodwill is taken to be property and with the admission of the two minors to the benefits of partnership in respect of a fixed share, the right to the money value of the goodwill stands transferred, the transaction does con stitute a gift under the Act.
Since there has been no dis pute about valuation of the goodwill as made by the Gift Tax Officer, with the conclusion that there has been a gift in respect of a part of the goodwill, the answer to the ques tion referred has to be in the affirmative, that is, it constitutes a gift under the Act.
The appeal is allowed and the conclusion of the High Court is reversed.
Since the respondent has not appeared, there will be no order for costs.
A.P.J. Appeal allowed.
|
Under a deed of partnership dated 12.11.1958, a firm by the name M/s. Chhotalal Vedilal came into existence with Chhotalal Mohanlal (the assessee), Gunvantilal Chhotalal and Pravinchandra Vedilal, as partners, each having 7 annas, 4 annas and 5 annas share respectively in the firm.
This position continued until on 9.11.1961 when a change took place in the constitution of the firm.
Under the new deed, Pravinchandra Vedilal retired.
One Ramniklal Chhotalal became a partner with 4 annas share.
The share of the asses see, Chhotalal Mohanlal was reduced.
For the remaining 4 annas, two minor sons of the assessee were admitted to the benefits only of the firm.
In the assessment year 1963 64, the Gift Tax Officer concluded that the assessee had deprived himself of 19% share In the profits and had gifted away 19% share in the goodwill of the firm in favour of his two minor sons.
He valued the .goodwill and treated 19% thereof as taxable gift.
In the appeal before the Appellate Assistant Commission er the assessee took the stand that the gift was not of a share of the goodwill but in respect of the right to receive future profits.
He valued that right and since the amount was higher than what the Income Tax Officer has estimated, he enhanced the quantum.
In further appeal by the assessee the Tribunal held that in the circumstances of the case there could be no gift of goodwill and found that the right to receive future profits could not be subject matter of a gift as the transfer did not relate to existing property and the situation did not give rise to any gift which could be made liable to tax under the Act.
In the Reference the High Court upheld the view of the Tribunal.
1043 In the appeal to this Court on behalf of the Revenue, it was contended that the order of the Gift Tax Officer was right and the Appellate Assistant Commissioner, the Tribunal and the High Court had gone wrong in holding that the ar rangement under the deed of 9.11.1961 did not give rise to a taxable event under the Act.
Allowing the appeal, HELD: 1.
Goodwill of a firm is an asset.
[1045E] Khushal Khemgar Shah & Ors.
vs Khorshed Banu Dadiba Boatwalla & Anr., ; , followed.
Once goodwill is taken to be property and with the admission of the two minors to the benefits of partnership in respect of a fixed share, the right to the money value of the goodwill stands transferred, the transaction does con stitute a gift under the Gift Tax Act, 1958.
[1046F] 3.
Since there has been no dispute about valuation of the goodwill as made by the Gift Tax Officer, with the conclusion that there has been a gift in respect of a part of the goodwill the transfer of the benefit of the partner ship constitutes a gift under the Act.
[1046F G] Commissioner of Gift Tax vs Nani Gopal Mondal, ; M.K. Kuppuraj vs Commissioner of Gift Tax, ; Sirehmal Nawalkha vs Commissioner of Income Tax, and Commissioner of Gift Tax, Bombay vs Premji Trikamji Jobanputra, , approved.
|
vil Appeal Nos. 1274 to 1278 of 1984.
From the Judgment and Order dated 27.5.81 of the Punjab and Haryana High Court in R.F.A. Nos.
688 to 692 of 1979.
Rajinder Sachar and K.C. Dua for the Appellants.
S.P. Goel, Rana Ranjit Singh and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by RAY, J.
These appeals on special leave are directed against the judgment .and order dated May 27, 1981 passed in R.F.A. Nos.
688 to 592 of 1979 and 1112 of 1979 by the High Court of Punjab and Haryana at Chandigarh.
The short ques tion raised in these appeals is whether the appellants are entitled to any compensation 'for nursery plants existing on the land at the time of acquisition as well as at the time of notification published under Section 4 of the Land Acqui sition Act, 419 1894.
Secondly, whether the valuation made in respect of the mother plants is low and the same needs to be increased in accordance with the report of the Horticulture Expert.
The facts of these appeals in short, are as follows.
A notification under section 4 of the Land Acquisition Act, 1894 was published on March 24, 1971 for acquisition of the lands in question in village Faridabad, Hadbust No. 123, Tehsil Ballabgarh, District Gurgaon for a public purpose viz. for planned development of residential sector No. 19 by the Haryana Government.
Thereafter, a declaration under Section 6 of the said Act was published vide Notification No. LAC 71/NTLA/376 dated January 18, 1972 in Haryana Gov ernment Extraordinary Gazette.
The Government declared that the Government was satisfied that the said land was needed at public expenses for a public purpose namely for the planned development in the area of this village Faridabad.
Thereafter a notice under Section 9 and 10 was issued call ing upon the owners and other interested persons to file their claims in respect of the interest in the land and also other particulars as regards their claims for compensation for such interest.
The owners of the land and other inter ested persons filed their claims demanding compensation for the land @ Rs.35 per sq.
and also claimed compensation for the nursery plants and potted plants in the land ac quired.
The Land Acquisition Collector awarded compensation in respect of the land acquired @ Rs.900 per Biswa.
The Land Acquisition Collector held that the mother plants and trees were irremovable and as such he assessed the value thereof at Rs.2,41,576.
He also awarded the shifting charges for the shifting of potted plants amounting to Rs. 1,773.20 paise together with compulsory charges @ 15% of the amount award ed.
This award was made by the Land Acquisition Collector on February 22, 1975.
The possession of the acquired land was taken by the Government.
The Land Acquisition Collector also granted six months ' time or any such further period as extended by the Government to enable the appellants to remove the nursery plants as well as the potted plants from the acquired land.
The Collector further stated in the award that the nursery plants can be removed from the land and the same be sold by the owners to the customers.
So no compensa tion was awarded in respect of these plants as well as in respect of the potted plants.
The appellants filed five claim petitions being Petition Nos.
191/85 to 195/85 of 1973/78 in the Court of the Addi tional District Judge, Gurgaon.
The 2nd Additional District Judge, Gurgaon after hearing 420 the parties and also considering the evidences enhanced the rate of compensation of the acquired land (C) Rs. 10 per sq.
It has also been held that the appellants will be enti tled to double the compensation for trees and plants as given by the Land Acquisition Collector.
He also ordered that the appellants shall be entitled to solatium at the rate of 15% on the enhanced amount of compensation on these two items.
In all other respects the impugned order made by the Land Acquisition Collector was upheld.
He further or dered that the appellants will be entitled to recover inter est @ 6% from the date of compensation to the date of reali zation of the enhanced amount to be paid to them and the appellants shall also be entitled to recover the proportion ate costs of the petitions from the Government.
The appellants filed R.F.A. Nos.
688 to 692 of 1979 in the High Court of Punjab and Haryana.
The High Court fixed the value of the acquired land considering the potentiality of the land @ Rs. 16 per sq.
The total area of the land acquired in these appeals being 11.38 acres, at the rate of Rs. 16 per sq.
the value of the land acquired comes to Rs.8.8 lakhs.
The Land Acquisition Collector awarded a sum of Rs.2,41,576 for the trees, which value had been doubled by the Court below.
The High Court held that no case was made out for doubling the value of the trees in the evidence recorded before remand.
It has been further observed by the High Court that the appellants ' own case was that most of their income was from potted plants, flowers and nursery plants, the potted plants gave the maximum income, as was shown by the vouchers produced by the appellants on record.
The potted plants had been taken away by the appellants after acquisition.
Similar was the position of nursery plants.
The High Court, therefore, held that the value awarded by the Land Acquisition Collector would be for the trees and since no justification was made, the Court below was in error in doubling the value of the trees.
The High Court, therefore, valued the acquired land at the enhanced rate of Rs. 16 per sq.
, for the trees the compensation awarded by the Land Acquisition Collector was directed to be paid to the appellants and the enhancement awarded in re spect of trees by the Court below was set aside.
It was further ordered that the appellants would be entitled to solatium at the rate of 15 per cent and interest at the rate of 6% per annum from the date of taking of possession till payment thereof.
The appeals were thus disposed of.
Against this judgment and decree passed in R.F.A. Nos.
688 to 692 of 1979, the appellants filed five Special Leave Petitions before this Court.
On February 27, 1984 this Court granted Special Leave 421 confined only to the compensation for mother plants and nursery plants.
Mr. Rajinder Sacbar, learned counsel appearing on behalf of the appellants has made two fold submissions before this Court.
His first submission is that the Land Acquisition Collector as well as the Courts below were wrong in not granting any compensation for the nursery plants.
Nursery plants were grown in the nursery on the acquired land for the purpose of rearing them for a certain period and there after selling those plants to the customers on taking out the same from the nursery.
There has been an inspection and a list was prepared of the various varieties of fruits and flower plants existing on the acquired land at the time of acquisition.
He further submitted that the value of these various plants has been assessed by Shri Som Dutta Diwan, Deputy Director, Horticulture/Vegetable, Haryana, Chandi garh, who was requested to assess the value of all sorts of trees.
Copies of the assessment made by him had been filed before the Land Acquisition Collector and it will be evident from the said assessment lists that each variety of trees has been assessed separately with reference to the total number of those trees.
It has been submitted by Mr. Sachar in this connection that these nursery plants if taken out of the land will die after two three days.
The appellants have got no other land where they could plant these plants and keep them alive.
It has, therefore, been submitted by him that the High Court was wrong in refusing to assess the value of the nursery plants and to award compensation in respect of the same.
Mr. Sachar next submitted that the compensation awarded with regard to the mother trees by the Land Acquisition Collector has been made arbitrarily without reference to the market price of these trees.
It has been further submitted by referring to the judgment and order of the 2nd Additional District Judge, Gurgaon that the 2nd Additional District Judge held that the.
appellants were entitled to double the compensation under the head 'value of trees and plants ' as assessed by the Land Acquisition Col lector.
The High Court arbitrarily and wrongly rejected this on the mere ground that there was no justification for doubling the compensation as awarded by the Land Acquisition Collector in respect of the mother trees and plants.
It has, therefore, been submitted by Mr. Sachar that the amount of compensation awarded by the Land Acquisition Collector in respect of the mother trees should be doubled and the com pensation for the nursery plants should also be assessed on the basis of the value of the plants as assessed by the Deputy Director of Horticulture.
422 Mr. S.P. Goel appearing for the respondent State has submitted that the land acquired was not treated as an agriculture land in assessing the market value of the same.
It has been taken as urban land and considering its potenti alities, the High Court assessed the value of the land @ Rs. 16 per sq.
In such circumstances, the value of the land being assessed on considering its potentiality, the question of valuation of the mother trees as well as of the nursery plants does not at all arise.
The valuation of the mother trees can at best be assessed at the value assessed by the Land Acquisition Collector.
There is, therefore, no ground for interference with the amount of compensation awarded by the Land Acquisition Collector and upheld by the High Court.
It has been next submitted by the learned counsel for the State that the nursery plants are planted and grown for the purpose of selling the same to the customers after taking them out from the land.
These nursery plants are never planted for the purpose of growing them into big trees or mother plants.
The High Court has rightly held that like the potted plants these nursery plants can easily be removed from the nursery as the purpose of growing these plants is to sell the same to the customers.
These plants can be removed and sufficient time had been granted by the State by permitting the appellants to remove these plants from the acquired land.
It has, therefore, been submitted that the High Court has rightly rejected the claim of the appellants for compensation in respect of the nursery plants.
We have considered in depth the arguments advanced by the learned counsel for both the parties and we have also considered very carefully the weighty reasonings given by the High Court as well as by the Land Acquisition Collector.
It is obvious that the land acquired though agriculture land was taken for assessment of its market value not as agricul ture land but as land with high potentialities i.e. as urban land and, therefore, the market value of these lands has been fixed after considering its potential value @ Rs. 16 per sq.
The appellants did not at all dispute this value and on the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, we find that there is much substance in the submissions made on behalf of the State that the mother trees should be valued as wood and the value has been rightly assessed as such by the Land Acquisition Collector in his award and the same has been upheld by the High Court.
Moreover, the find ings of the Collector that the nursery plants can be taken out of the land and sold to the customers like potted plants and as such no compensation can be awarded is in our consid ered opinion quite in accordance with law.
In these cir 423 cumstances, we do not find any infirmity or arbitrariness in the findings arrived at by the High Court and as such there is no merit in the contentions made on behalf of the appel lants in these appeals.
We, therefore, uphold the findings of the High Court and dismiss the appeals without any costs.
P.S.S Appeals dis missed.
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The appellants ' land was acquired under the Land Acqui sition Act on March 24, 1971 for planned development as residential area.
They were then running a plant nursery on the said land.
A large number of potted plants, mother plants and trees also existed there.
They demanded compensa tion for the land at the rate of Rs.35 per sq.
They also claimed compensation for nursery plants, potted plants mother plants and trees.
The Land Acquisition Collector awarded compensation in respect of the land at the rate of Rs.900 per Biswa.
He held that the mother plants and trees were irremovable and as such assessed the value thereof at Rs.2,41,576.
He also awarded charges for the shifting of potted plants.
In re spect of the nursery plants he took the view that the appel lants were not entitled to any compensation as these could be removed from the land and sold.
The District Judge enhanced the rate of compensation for the acquired land at the rate of Rs. 10 per sq.
and also doubled the compensation for trees and mother plants.
The High Court considering the potentiality of the acquired land fixed its value at the rate of Rs. 16 per sq.
It took the view that the court below was in error in doubling the value of the trees as no case was made out in the evidence recorded and therefore set aside the enhance ment.
In these appeals by special leave it was contended for the appellants that the nursery plants if taken out of the land would die after two three days and the appellants had got no other land where they could plant them and keep them alive.
It was further contended that the compensation with regard to mother trees had been awarded with 418 out reference to their market price and that the High Court had arbitrarily rejected the enhancement in the said compen sation granted by the District Court.
Dismissing the appeals, the Court, HELD: 1.
The finding of the Land Acquisition Collector that the nursery plants could be taken out of the land and sold to the customers like potted plants and as such no compensation could be awarded was quite in accordance with law.
Sufficient time had been granted by the State by per mitting the appellants to remove these plants from the acquired land.
Their claim was, therefore, rightly rejected by the High Court.
[422G H, D E] 2.
The land acquired though agricultural land was taken.
for assessment of its market value @ Rs. 16 per sq.
not as agricultural laud but as laud with high potentialities i.e. as urban laud.
The appellants did not at all dispute this value.
On the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, it could not be said that the value of mother trees has been wrongly assessed as wood.
The appellants were, therefore, not entitled to enhancement In the value of trees.
[422F G]
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Appeal No. 3908 (NT)/ 1983.
From the Judgment and Order dated 20.11.1979 of the Madras High Court in Tax Case No. 330 of 1976.
A. Raghuvir and Ms. A. Subhashini for the Appellant.
T.A. Ramachandran and Mrs. Janaki Ramachandran for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
This appeal is preferred against the Judgment of the Madras High Court answering the question referred to it in the affirmative i.e., in favour of the assessee and against the Revenue.
The question referred under section 256 (1) of the Income tax Act reads as follows: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the total sum of Rs. 22.000 received by the assessee from the Indian Oil Corporation and All India Highway Motor Rally should not be brought to tax?" The assessment year concerned is 1974 75.
The assessee, G.R. Karthikeyan, assessed as an individual, was having income from various sources including salary and business income.
During the accounting year relevant to the said assessment year, he participated in the All India Highway Motor Rally.
He was awarded the first prize of Rs. 20,000 by the Indian Oil Corporation and another Sum of Rs. 2,000 by the All India Highway Motor Rally.
The Rally was organised jointly by the Automobile Association of Eastern India and the Indian Oil Corporation and was supported by several Regional Automobile Associations as well as Federation of Indian Motor Sports Clubs and the Federation of Indian Automobile Associations.
The rally was restricted to private motorcars, the length of the rally route was approximately 6,956 kms.
One could start either from Delhi, Calcutta, Madras or Bombay, proceed anti clock wise and arrive at the starting point.
The rally was designed to test endurance driving and the reliability of the 331 automobiles.
One had to drive his vehicle observing the traffic regulations at different places as also the regulations prescribed by the Rally Committee.
Prizes were awarded on the basis of overall classification.
The method of ascertaining the first prize was based on a system of penalty points for various violations.
The competitor with the least penalty points was adjudged the first prize winner.
On the above basis, the assessee won the first prize and received a total sum of Rs. 22,000.
The Income Tax Officer included the same in the income of the respon dent assessee relying upon the definition of 'income ' in clause (24) of section 2.
On appeal, the Appellate Assistant Commissioner held that inasmuch as the rally was not a race, the amount received cannot be treated as income within the meaning of section 2 (24) (ix).
An appeal preferred by the Revenue was dismissed by the Tribunal.
The Tribunal recorded the following findings: (a)That the said rally was not a race.
It was predominantly a test of skill and endurance as well as of reliability of the vehicle.
(b) That the rally was also not a 'game ' within the meaning of section 2(24) (ix).
(c) That the receipt in question was casual in nature.
It was nevertheless not an income receipt and hence fell outside the provisions of section 10 (3) of the Act.
At the instance of the Revenue, the question aforementioned was stated for the opinion of the Madras High Court.
The High Court held in favour of the assessee on the following reasoning: (a) The expression 'winnings ' occuring at the inception of sub clause (ix) in section 2(24) is distinct and different from the expression 'winning '.
The expression 'winnings ' has acquired a connotation of its own.
It means money won by gambling or betting.
The expression 'winnings ' controls the meaning of several expressions occurring in the sub clause.
In this view of the matter, the sub clause cannot take in the receipt concerned herein which was received by the assessee by participating in a race which involved skill in driving the vehicle.
The rally was not a race.
In other words the said receipt does not represent 'winnings '.
(b) A perusal of the memorandum explaining the provisions of the Finance Bill,.
1 972, which inserted the said sub clause in section 2(24), also shows that the idea behind the sub clause was to rope in windfalls from lotteries, races and card games etc.
332 (c) Section 74 (A) which too was introduced by the Finance Act, 1972 supports the said view.
Section 74 (A) provides that any loss resulting from any of the sources mentioned therein can be set off against the income received from that source alone.
The sources referred to in the said section are the very same sources mentioned in sub clause (ix) of section 2(24) namely lotteries, crossword puzzles, races including horse races, card games etc.
The correctness of the view taken by the High Court is questioned herein.
The definition of 'income ' in section 2(24) is an inclusive definition.
The Parliament has been adding to the definition by adding sub clause (s) from time to time.
Sub clause (ix) which was inserted by the Finance Act, 1972 reads as follows: "(ix) any winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or from gambling or betting of any form or nature whatsoever;" We may notice at this stage a provision in section IO.
Section 10 occurs in chapter HI which carries the heading "Incomes which do not form part of total income".
Section 10 in so far as is relevant reads thus: " 10, Incomes not included in total income: In computing the total income of a previous year of any person, any income failing within any of the following clauses shall not be included: (d) any receipts which are of a casual and non recurring nature, not being winnings from lotteries, to the extent such receipts do not exceed one thousand rupees in the aggregate".
(The clause has been amended by Finance Act, 1986 but we are not concerned with it.
Similarly it is not necessary to notice the proviso to the said clause.) It is not easy to define income.
The definition in the Act is an inclusive one.
As said by Lord Wright in Kamakshya Narayan Singh vs C.I.T. P. C. "income. . . is a word difficult and perhaps impossible to define in any precise general formula.
It is a word of the broadest connotation".
In Gopal Saran Narain Singh vs Commissioner of Income Tax 3.I.T.R. 237 P.C., the Privy Council pointed out that "anything than can properly be described as income is taxable under the Act unless expressly exempted." This Court had to deal with the ambit of the expression 'income 'in Navin Chandra Mafatlal vs C.I T.Bombay 26 I.T.R. (S.C.) 333 The Indian Income tax and Excess Profits Tax (Amendment) Act, 1947 had inserted section 12 (B) in the Indian Income tax Act, 1922.
Section 12(B) imposed a tax on capital gains.
The validity of the said Amendment was questioned on the ground that tax on capital gains is not a tax on 'income 'within the meaning of entry 54 of list 1, nor is it a tax on the capital value of the assets of individuals and companies within the meaning of entry 55, of list 1 of the seventh schedule to the Government of India Act, 1935.
The Bombay High Court repelled the attack.
The matter was brought to this Court.
After rejecting the argument on behalf of the assessee that the word 'income ' has acquired, by legislative practice, a restricted meaning and after affirming that the entries in the seventh schedule should receive the most liberal construction the Court observed thus: "What.
then, is the ordinary, natural and grammatical meaning of the word "income"? According to the dictionary it means "a thing that comes in." (See Oxford Dictionary, Vol.
V,p. 162; Stroud, vol.
II, pp.
14 16).
In the United States of America and, in Australia both of which also are English speaking countries the word "income is understood in a wide sense so as to include a capital gain.
Reference may be made to 'Eisner vs Macomber '; , ; 'Merchants ' Loan and Trust Co. vs 'Smietanka '[1920] ; ( L) and 'United States of America vs Stewart ', ; and 'Resch vs Federal Commissioner of Taxation '; , In each of these cases very wide meaning was ascribed to the word "income" as its natural meaning.
The relevant observations of learned Judges deciding those cases which have been quoted in the judgment of Tendolkar J. quite clearly indicate that such wide meaning was put upon the word "income" not because of any particular legislative practice either in the United States or in the Commonwealth of Australia but because such was the normal concept and connotation of the ordinary English word "income".
Its natural meaning embraces any profit or gain which is actually received.
This is in consonance with the observations of Lord Wright to which reference has already been made.
The argument founded on an assumed legislative practice being thus out of the way, there can be no difficulty in applying its natural and grammatical meaning to the ordinary English word "income '.
As already observed, the word should be given its widest connota 334 tion in view of the fact that it occurs in a legislative head conferring legislative power.
Since the definition of income in section 2(24) is an inclusive one, its ambit, in our opinion, should be the same as that of the word income occurring in entry 82 of list 1 of the Seventh Schedule to the Constitution (corresponding to entry 54 of list 1 of the Seventh Schedule to the Government of India Act).
In Bhagwandas Jain vs Union of India S.C. The challenge was to the validity of section 23(2) of the Act which provided that where the property consists of house in the occupation of the owner for the purpose of his own residence, the annual value of such house shall first be determined in the same manner as if the property had been let and further be reduced by one half of the amount so determined or Rs. 1,800 whichever is less.
The contention of the assessee was that he was not deriving any monetary benefit by residing in his own house and, therefore, no tax can be levied on him on the ground that he is deriving income from that house.
It was contended that the word income means realisation of monetary benefit and that in the absence of any such realisation by the assessee, the conclusion of any amount by way of notional income under section 23(2) of the Act in the chargeable income was impermissible and outside the scope of entry 82 of list 1 of the Seventh Schedule to the Constitution.
The said contention was rejected affirming that the expression income is of the widest amplitude and that it includes not merely what is received or what comes in by exploiting the use of the property but also that which can be converted into income.
Sub clause (ix) of section 2(24) refers to lotteries, crossword puzzles, races including horse races, card games, other games of any sort and gambling or ' betting of any form or nature whatsoever.
All crossword puzzles are not of a gambling nature.
Some are; some are not.
See State of Bombay vs R.M.D. Chamarbaugwala A.I.R. 1957 S.C.699.Even in card games there are some games which are games of skill without an element of gamble (See State of Andhra Pradesh vs
K. Satyanarayan[1968] 2 S.C.R. 515.
The words other games of any sort" are of wide amplitude.
Their meaning is not confined to games of a gambling nature alone.
It thus appears that sub clause (ix) is not confined to mere gambling or betting activities.
But, says the High Court, the meaning of all.
the aforesaid words is controlled by the word 'winnings ' occurring at the inception of the subclause.
The High Court says, relying upon certain material, that the expression winnings ' has come to acquire a particular meaning viz, receipts from activities of a gambling or betting nature alone.
Assuming that the High Court is right in its interpretation of the expression 'winnings ', does it follow that merely because 335 winnings from gambling/betting activities are included within the ambit of income,the monies received from non gambling and non betting activities are not so included? What is the implication flowing from insertion of clause (ix)? If the monies which are not earned in the true sense of the word constitute income why do moneies earned by skill and toil not constitute income? Would it not look odd.
if one is to say that monies received from games and races of gambling nature represent income but not those received from games and races of non gambling nature? The rally in question was a contest, if not a race.
The respondent assessee entered the contest to win it and to win the first prize.
What he got was a return ' for his skill and endurance.
Then why is it not income which expression must be construed in its widest sense.
Further, even if a receipt does not fall within subclause (ix), or for that matter, any of the sub clauses in section 2(24), it may yet constitute income.
To say otherwise, would mean reading the several clauses in section 2(24) as exhaustive of the meaning of 'income ' when the Statute expressly says that it is inclusive.
It would be a wrong approach to try to place a given receipt under one or the other sub clauses in section 2(24) and if it does not fall under any of the sub clauses, to say that it does not constitute income.
Even if a receipt does not fall within the ambit of any of the sub clauses in section 2(24), it may still be income if it partakes of the nature of the income.
The idea behind providing inclusive definition in section 2(24) is not to limit its meaning but to widen its net.
This Court has repeatedly said that the word 'income ' is of widest amplitude, and that it must be given its natural and grammatical meaning.
Judging from the above standpoint, the receipt concerned herein is also income.
May be it is causal in nature but it is income nevertheless.
That even the casual income is 'income ' is evident from section 10 (3).
Section 10 seeks to exempt certain 'incomes ' from being included in the total income '.
A casual receipt which should mean, in the context, casual income is liable to be included in the total income if it is in excess of Rs. 1,000, by virtue of clause (3) of section 10.
Even though it is a clause exempting a particular receipt/income to a limited extent, it is yet relevant on the meaning of the expression 'income '.
In our respectful opinion, the High Court, having found that the receipt in question does not fall within sub clause (ix) of section 2(24), erred in concluding that it does not constitute income.
The High Court has read the several sub clauses in section 2(24) as exhaustive of the definition of income when in fact it is not so.
In this connection it is relevant to notice the finding of the Tribunal.
It found that the receipt in question was casual in nature but it opined it was nevertheless not an income receipt and fell outside the provision of section 10 (3) of the Act.
We have found it difficult to follow the logic behind the argument.
For the above reasons we hold that the receipt in question herein does 336 constitute 'income ' as defined in clause (24) of section 2 of the Act.
The appeal is accordingly allowed and the question referred by the Tribunal under section 256(1) of the Act is answered in the negative i.e., in favour of the Revenue and against the assessee.
There shall be no order as to costs.
Appeal allowed.
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The assessee participated in an All India Highway Motor Car Rally and on being declared a winner, received an amount of Rs. 22,000 as prize money.
The Income tax officer included the prize money in his income for the relevant assessment year relying upon the definition of 'income 'in clause (24) of Section 2 of Income Tax Act.
On an appeal preferred by the respondent assessee the Appellate Assistant Commissioner held that as the Rally was not a race, the prize money cannot be treated as income within the meaning of section 2(24) (ix).
The Tribunal on an appeal by the Revenue, held that the Rally was not a race and as it was a test of skill and endurance, it was not a 'game ' within the meaning of Sec. 2 (24) (ix).
As the prize money received was casual in nature it fell outside Sec.
10(3) of the Act.
The High Court on a reference at the instance of the Revenue,upholding the findings of the Tribunal,observed that the expression 'winnings ' cannotes money won by betting or gambling and therefore the prize money not represent 'winnings '.
Inasmuch as the amount in question was obtained by participating in a rally which involved skill in driving the vehicle, it held, it cannot he included in the assessee 's income, also because it fell outside the preview of s.10 (3).
Allowing the Appeal, the Court, HELD:1.
The expression 'income ' must be construed in its widest sense.
The definition of 'income ' is an inclusive one.
Even if a receipt does not fall within sub clause (ix) or any of the sub clauses of Sec.2(24) of the Act it may yet constitute income.
Hence the prize money received by the respondent 329 assessee constitutes 'income ' as defined in clause (24) of Section 2 of the Act.
(335 C) 2.The High Court erred in reading several sub clauses in Sec.
2(24) as exhaustive when the statute expressly says that the definition is inclusive.
Even if a receipt does not fall within the ambit of any of the sub clauses in Sec.
2(24) it may still he income if it partakes of the nature of income.
The idea behind providing inclusive definition in Sec.
2(24) is not to limit its meaning but to widen its net.
This Court has repeatedly said that the word 'income ' is of widest amplitude and that it must he given its natural and grammatical meaning.
(335 D) Kamakshya Narayan Singh vs C.LT P.C., Navin Chandra Mafatlal vs C.I.T, Bombay 26 ITR (SC)and Bhagwan Das Jain vs Union of India SC, followed.
Gopal SaranNarain Singh vs Commissioner of Income Tax, 3ITR237 P.C., referred to.
3.If the monies which are not earned in the true sense of the word Constitute income, it is difficult to appreciate why do monies earned by skill and to not constitute income? The Rally was a contest, if not a race.
The Respondent assessee entered the contest to win it.
The Prize money which he got in return for winning the contest was a reward for his skill and endurance.
It does constitute his income which expression must be construed in its widest sense.
(335 B) 4.The sub clause (ix) of Sec.
2(24), is not confined to games of gambling nature alone.
Some of them are games of skill.
State of Bombay vs R.M. D. Chamarbaugwala ; ; and Stale of Andhra Pradesh vs K. Satyanarayan ; , followed.
5.As the definition of income in Sec.
2(24) is an inclusive one, its ambit should be the same as that of the word 'income ' occurring in Entry 82 of list 1 of the Seventh Schedule of the Constitution of India.
(334 B) 6.Even casual income is 'income 'as is evident from Sec.
10(3).
A casual receipt which should mean in the context, casual income is liable to be included in the total income, if it is in excess of Rs. 1,000 by virtue of clause (3) 330 of Sec. 10.
The Tribunal erred in its finding that the prize money fell outside the purview of Sec.
10 (3) inspite of holding that the receipt in question was casual in nature.
(335 E)
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Appeal No. 870 of 1968.
(From.the Judgment and Order dated 22.11.1967 of the Madhya Pradesh High Court in Second Appeal No. 436/64.
G.L. Sanghi and D.N. Misra for the appellant.
P.H. Parekh (amicus curiae) for the respondents.
The Judgment of the Court was delivered by KRANNA, J.
This appeal by special leave is against the judgment of the Madhya Pradesh High Court affirming on second appeal the decision of the trial court and the first appellate court whereby suit for possession of the land in dispute had been decreed in favour of the plaintiff re spondent against the defendant appellant.
Laxmi Dayal died in 1952 leaving the lands in dispute and some other properties.
He was succeeded by his two widows, Shantibai and Bindumati.
In 1954 Chandanbai, widow of brother of Laxmi Dayal, filed civil suit No. 34A of 1954 against Shantibai and Bindumati in respect of the property left by Laxmi Dayal.
During the pendency of that suit, a deed of partition was executed by Shantibai, Bindumati and Chandanbai, as a result of which each one of them was stated to have become full owner of the property which fell to her share.
The partition deed was got registered and necessary mutation entries were made in accordance with that deed.
On September 8, 1955, Shantibai made a will of the property which fell to her share as a result of partition,.
in favour of the plaintiff respondent.
The suit filed by Chandanbai was disposed of on February 18, 1956 in terms of partition deed dated January 13, 1955.
Shantibai died on May 29, 1956.
The respondent filed the present suit against Bindu mati defendant appellant for possession of the land in dispute on the allegation that he (the respondent) had taken possession of the land in dispute in pursuance of the will executed in his favour by Shantibai.
The appellant was stated to have relinquished her right of survivorship in the land which fell to the share of Shantibai.
The appellant, it was further pleaded, had taken forcible possession of the land in dispute.
The suit was resisted by the appellant on the ground that she had not relinquished her right of survivorship in the land which fell to the share of Shantibai.
Shantibai, it was further averred, had no right to dispose of the said land by will.
The trial court accepted the contention of the respondent and decreed his suit.
The decision of the trial court was affirmed on appeal by the first appellate court and by the High Court in second appeal.
The first question which arises for consideration in this appeal is whether the appellant relinquished her right of survivorship in the property which fell to the share of Shantibai as a result of the deed of partition dated January 13, 1955.
In this respect we find that each 990 of the three executants stated in that deed that none of them would have any right or claim over the property that fell to the share of other shareholders in partition.
it was further stated in the deed: "Every shareholder may get the property fallen to her share, mutated and may take possession thereof and thus may become abso lute owner thereof. 'Every shareholder may get her name separately mutated in Patwari 's papers.
She may sell it.
If other sharehold er claim it, it will be contrary to law . .
By taking our respective share from the entire property in the parti tion we become separate from the entire property.
" When she came into the witness box, the appellant admitted that their object in making the partition was that they would be able to dispose of their separate lands in any way they liked.
The appellant also stated that as a result of partition, each one of the executants of the deed of partition became exclusive owner of the property that fell to her share.
In the face of the recitals in the deed of partition and the admissions made by the appellant in the witness box, we find no reason whatsoever to disturb the finding of the courts below that the appellant had relin quished her right of survivorship in the property which fell to the share of Shantibai.
Sanghi on behalf of the appellant, however, contends that it is not permissible in Hindu law for a widow to give up her right of survivorship in the property which fails to the share of the co widow even as a result of an agreement.
This contention, in our opin ion, is devoid of force and runs counter to the decision of this Court in the: case of Karpagathachi & Ors.
vs Nagarathipathachi.(1) As observed in that case, "under the Hindu law as it stood in 1924, two widows inheriting their husband 's proper ties took together one estate as joint tenants with rights of survivorship and equal benefi cial enjoyment.
They were entitled to en force a partition of those properties so that each could separately possess and enjoy the portion allotted to her, see Dhuowan Deen Dobey vs Myna Baee(2), Gauri Nath Kakaji vs Gaya Kuar(3).
Neither of them could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship, see Commissioner of Income tax vs Smt.
Indira Balakrishna(4).
But by mutual consent they could enter into any arrangement regarding their respective rights in the properties during the continuance of the widow 's estate, and could absolutely divide the properties, so as to preclude the right of survivorship of each of the portion allotted to the other see Ramakkal vs Ramasami Naichan (5),, Sudalai Ammal vs Gomathi Ammal(6).
Likewise, two daughters succeeding to their father 's estate as joint (1) ; (2) (3) (1928)L.R. 55 I.A. 299.
(4) ; ,517.
(5) Mad, 522, (6) , 991 tenants with rights of survivorship could enter into a similar arrangement, see Kailash Chandra Chuckerbutty vs Kashi Chandra Chuck erbutty (1), Subbammal vs Lakshmanu Iyer(2), Ammani Ammal vs Periasami Udavan.(a) Such an arrangement was not repugnant to section 6(a) of the .
The interest of each widow in the properties inherited by her was property, and this property together with the incidental right of survivorship could be lawfully trans ferred.
Section 6(a) of the prohibits the transfer of the bare chance of the surviving widow taking the entire estate as the next heir of her hus band on the death of the Co widow, but it does not prohibit the transfer by the widow of her present interest in the properties inher ited by her together with the incidental right of survivorship.
The widows were competent to partition the properties and allot separate portions to each, and inciden tal to such an allotment, each could agree relinquish her right of survivorship in the portion allotted to the other.
" There is nothing in the decision of Smt.
Indira Balakr ishna (supra) which stands in the way of any mutual arrange ment between the cowidows, the effect of which would be to preclude the right of survivorship of each to the portion allotted to the other.
The question which actually arose for decision in that case was whether the three widows of a deceased person could have the status of an association of persons within the meaning of section 3 of the Indian In come tax Act, 1922.
This question was answered in the negative.
While discussing this question, this Court observed that though the widows take as joint tenants, none of them has a right to enforce an absolute partition of the estate against the other so as to destory the right of survivorship.
The question as to whether the right of survivorship could be relinquished as a result of mutual agreement did not arise for consideration in that case.
This question was dealt with in the case of Karpagathachi (supra) and it was held after noticing the decision in Smt.
Indira Balakrishna 's case (supra) that such relinquishment of the right of survivorship was permissible as a result of mutual arrangement.
Lastly, it has been argued by Mr. Sanghi that even though Shantibai became entitled to dispose of during her life time the property which fell to her share as a result of the deed of partition, she could not bequeath the same by means of a will.
This submission too.
is devoid of force, and we agree with Mr. Parekh who argued the case amicus curiae that the power of Shantibai to make a will in respect of the property in dispute was co extensive with her power to transfer it inter vivos.
The question as to what effect the will would have on the right of the male rever sioner, if any, of Laxmi Dayal need not be gone into in this case.
So far as Bindumati appellant is concerned, we have no doubt that in the light of the arrangement contained in the deed of partition dated January 13, 1955 she cannot resist the (1) cal.
(2) , (3) (1923) 45 M.L.I. 1. 992 claim of the plaintiff respondent who is a legatee under the will of Shantibai.
To hold otherwise would be tantamount to permitting the appellant to assert her right of survivor ship in the property which fell as a result of partition to the share of Shantibai even though the appellant has relin quished such right of survivorship.
The appeal consequently fails and is dismissed.
As no one appeared on behalf of the respondent, we make no order as to the costs of the appeal.
P.H.P. Appeal dismissed.
|
One Lakshmi Dayal died in 1952 leaving behind two wid ows, appellant and Shantibai.
In 1954, Chandanbai widow of brother of Laxmi Dayal filed a suit against the appellant and Shantibai in respect of the. properties left by Lakshmi Dayal.
During the. pendency of the said suit, the appel lant, Shantibai and Chandanbai executed a partition deed alloting different properties to each one of the widows.
The partition deed was registered and necessary mutation entries were made.
The suit filed by Chandanbai was dis posed of in terms of the Partition Deed.
In September.
1955, Shantibai made a will in favour of the respondent and she died on 29 5 1956.
After her death, the appellant took forcible possession of the suit land from the respondent.
The respondent, therefore, filed a suit against the appel lant for possession of the land in dispute.
The Trial Court, the first Appellate, Court and the High Court in Second Appeal came to the conclusion that the appellant had relinquished her right of survivorship in lands which fell to the share of Shantibai and, therefore, decreed the respondefts suit.
In an appeal by Special Leave the appellant contended: 1.
The appellant did not relinquish her right of survivorship.
It is not permissible for a Hindu co widow.
to give up her right of survivorship even by an agreement.
Even if right of survivorship can be given up during the lifetime of the widows con cerned, the property could have been trans ferred inter vivos but could not have been disposed of by a will.
Dismissing the appeal, HELD: 1.
It is clear from the Partition Deed and the evidence of the appellant herself that she had relinquished her right of survivor ship.
The findings of all the courts below to the effect that the appellant relinquished her right of survivorship are correct.
[990 B C] 2.
It is permissible under Hindu Law for a co widow to relinquish by agreement her right of survivorship ' in the property which falls to the share of the other widow.
[990 G] Karpagathachi & Ors.
vs Nagarathipathachi ; followed.
Bhuowan Deen Doobey vs Myna Baee ; Gauri Nath Kakaji vs Gaya Kaur (1928) LR 55 IA 299 re ferred.
Commissioner of Income Tax vs Smt.
Indira Balakrishna ; , 517 distinguished.
Ramakkal vs Ramasami Naichan Mad.
522, Sudalai Ammal vs Comathi Ammal ; Kailash Chandra Chuckerbutty vs Kashi Chandra Chuckerbutty Cal.
339; Subbammal vs Lakshmana Iyer ; Ammani Ammal vs Perissemi Udayan re ferred to. 3.
The power of a co widoW to execute a will in respect of the property falling to her share in the partition with the other co widows is co extensive with her power to trans fer it inter vivos. 989
|
minal Appeal No. 137 of 1967.
Appeal by special leave from the judgment and order dated May 9, 1967 of the Rajasthan High Court in section B. Criminal Appeal No. 254 of 1966.
Sobhag Mal Jain, for the appellants.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
The two appellants, in this appeal, by special leave, challenge their conviction, by the Additional Sessions Judge, No. 1, Jaipur City, for offences under sections 120B, 420, 420 read with 511, and 467 read with 471, I.P.C., as confirmed by the High Court of Rajasthan, at Jodhpur.
Bhanwar Singh has also been convicted, for an offence under section 380, I.P.C. Both of them have been sentenced to various terms of imprisonment and fine, for these offences, and the sentences of imprisonment have been directed to run concurrently.
The two appellants, along with two others, who have since been acquitted, were tried by the learned Sessions Judge, for various offences, as indicated below.
There was a common charge of criminal conspiracy, under section 120B, IPC, to do, or cause to be done, illegal acts, viz., offences of theft, cheating, forgeries, etc., against all the four accused.
Under this head, the allegation was that the four accused agreed, among themselves, to commit theft and pilferage, of Indian and British postal orders and bank cheques, belonging to different persons, which were in transmission, by post and that, after such pilfering, the names of the original payees and the names of the paying post offices were erased and forgery was committed by writing the names of fictitious persons, or the names of some of the accused, and of different post offices.
The further allegation was that the accused agreed to use, as genuine, all such pilfered and forged postal orders and cheques, which the accused knew, or had reasons to believe, were forged documents.
There was also an allegation that all the accused had also agreed to present, such pilfered and forged postal orders and cheques, for encashment at the post offices and banks at Ajmer and Jaipur, through the two appellants and Yasoda Devi, 4th accused, pretending to be either the original payees or the substituted payees.
It was further alleged that the accused had agreed to cheat, or attempt to cheat, the postal L2Sup.
CI/68 3 530 authorities and banks, at Ajmer and Jaipur, by dishonestly inducing them to make payment to the appellants and Yasoda Devi, in respect of the pilfered and forged postal orders and cheques.
It Was also stated that the accused committed the various acts, in pursuance of the agreement, regarding the postal orders and cheques, details of which were given under that charge.
Appellant Bhanwar Singh was also further charged that, in pursuance of the conspiracy, during October 1956 and December 1957, he committed theft of various postal orders and cheques, belonging to various persons and that he also forged certain postal orders, which were valuable securities, by removing the names of the original payees and inserting his own name and that he thereby cheated the postal authorities at Jaipur, by dishonestly inducing them to deliver certain amounts against such postal orders, which were really payable to a third party, and thereby he committed offences of theft, forgery and cheating, under sections 380, 467 and 420, I.P.C. There were also certain further charges, for offences punishable under section 471; and of an attempt to commit cheating in respect of a cheque, punishable under section 420 read with section 51 1, IPC.
Similarly, against Kishanlal, the 2nd appellant, there were additional charges, framed under sections 467, 420, 420 read with 511 and 471, I.P.C. Kapoorchand was also charged under sections 380 and 467 I.P.C., and Yasoda Devi, under sections 467, 471, 420 and 419 I.P.C. The case of the prosecution, in brief, was as follows.
Bhanwar Singh and Kapoorchand were constables in the C.I.D., Ajmer Zone, during 1956 57.
In the course of their duties of censoring postal mail, these two constables, after having opened the mail, for the purpose of censoring, pilfered certain Indian postal orders and British postal orders and cheques and, after erasing the names of the original payees, as also the names of the post offices or banks, where payment was to be made, inserted their own names or some fictitious names and got the postal orders or cheques encashed at different post officers and banks.
According to the prosecution, Bhanwar Singh and Kapoorchand had entered into a conspiracy, with Kishanlal and Yashoda Devi, whose services were utilised for getting the moneys from the Banks.
The matter came to light when the payees did not receive the cheques or the postal orders intended for them and lodged complaints with the post offices and banks.
On investigation, the four accused were charged, as detailed above.
The accused denied the charges levelled against them.
The learned Sessions Judge came to the conclusion that the charge of criminal conspiracy was established, against all the four accused The first appellant was found to be the main accused and he was 531 convicted under sections 380, 467/471, 420/511 read with section 120B I.P.C.
The second appellant and Yashoda Devi were convicted under sections 467, 471 and 420 read with section 120B IPC.
Kapoorchand was however convicted only for offences under sections 380 and 467 read with 120 B, IPC.
The learned Sessions Judge sentenced all of them to various terms of imprisonment, and fine, for the different offences, as stated already.
All the four accused challenged their conviction for these offences and the sentence passed against them, be before the High Court of Rajasthan.
Two contentions were raised by the accused; (i) that the trial held by the Sessions Judge was illegal and void, inasmuch as the prosecution had been conducted, without obtaining the necessary sanction, under section 196A of the Code of Criminal Procedure 1 in respect of the charge under sections 467 and 471 read with section 120B IPC; (ii) that the evidence adduced by the prosecution, did not establish the guilt of the accused.
Both these contentions have been negatived by the High Court, so far as the appellants herein are concerned.
The High Court, however, acquitted Yashoda Devi, holding that the prosecution evidence id not establish her guilt, beyond reasonable doubt.
The High Court also acquitted Kapoorchand holding that the trial against him was void, because the necessary sanction had not been obtained, under section 196A of the Code of Criminal Procedure.
On behalf of the appellants, Mr. Jain, learned counsel, raised the same two contentions before us.
Counsel urged that inasmuch as the accused were prosecuted for non cognizable offences under sections 467/471 read with section 120B, IPC., the trial was illegal and void, inasmuch as the necessary sanction, under section 196A of the Code had not been obtained.
Learned counsel further urged that the mere fact that the accused were also tried for the offence of cheat ing, under section 420 IPC, which is cognizable and for which punishment by way of imprisonment extending to 7 years could be imposed, and for which no sanction was necessary, would not make the trial valid.
Under such circumstances, the joint trial for cognizable and non cognizable offences was illegal and void.
Mr. Khanna, learned counsel for the State, met this conten tion, on behalf of the appellant, by pointing out that the main object of the conspiracy was to cheat the banks and the post offices, by obtaining money from them; the forgeries committed by the accused on the cheques and postal orders were only incidental to achieve the main object of the conspiracy, viz., to commit the offence under section 420 IPC.
Under those circumstances, Mr. Khanna pointed out, it was not necessary to obtain sanction under section 196A of the Code and therefore there was no illegality,.
which would vitiate the trial, held by the Sessions Judge.
532 We have already indicated the offences for which the appellants and the other two accused, who have since been acquitted, were tried.
It is enough to note that there was a charge under section 120B, read with section 467/471 and 420 IPC.
The offences under section 467 and 471 are non cognizable, but the offence under section 420 is a cognizable one for which the punishment could be imprisonment extending to 7 years.
Therefore, if the object of the conspiracy, under section 120B, was to commit a non cognizable offence, under section 467 or 471 I.P.C., the obtaining of sanction, from the authorities mentioned in sub section
(2) of section 196A, was absolutely necessary, and the absence of such sanction would vitiate the trial, for such offences.
Similarly, if the object of the conspiracy, under section 120B, was to commit a cognizable offence under section 420 IPC, which is punishable with imprisonment for a term above 2 years, no sanction is necessary, under section 196A.
The question is, whether sanction was necessary in the case before us, when there was a trial for offences under section 467/471 and 420 IPC, read with section 120B. In the instant case, it is admitted that no sanction was ob tained.
In The State of Andhra Pradesh vs Kandimalla Subbaiah(1) the question arose, before this Court, whether sanction under section 196A of the Code was necessary when there was a trial for offences under section 120B, read with sections 466, 467 and 420, IPC.
It was argued, on behalf of the State, that since the object of the conspiracy was to cheat the Government i.e., to commit an offence under section 420 IPC, and as the offences under sections 466 and 467 were only means to that end, the trial was not vitiated simply because no sanction was obtained for prosecuting the accused, for offences of criminal conspiracy to commit non cognizable offences, under sections 466 and 467 IPC.
But, in that decision, this Court did not express any opinion on this point, as the matter was sent back to the trial Court, for framing fresh charges and proceeding with the trial, after observing that it was for the Government to consider whether it should accord sanction for prosecution of non cognizable offences, assuming that such sanction was necessary.
The question, that was thus left open, in that decision, arises for consideration, now, in the instant case before us.
On behalf of the appellant, reliance has been placed on three decisions, in support of the contention that under such circumstances, the trial is illegal and void.
Those decisions are: Subbaiah, In re:(2), of the Andhra Pradesh High Court; Jadeda Meramanji vs State of Gujarat(3), of the Gujarat High Court; and Nibaran Chandra vs Emperor(4), of the Calcutta High Court.
(1) (3) (2) I.L.R. (4) A.I.R. 1929 Cal.
533 The decision of the Calcutta High Court does not assist the appellant, because the charge that was framed was of criminal conspiracy, under section 120B read with section 384 IPC.
The object of the conspiracy having been to commit an offence, under section 384 IPC, which is a non cognizable offence, it was held by the Calcutta High Court that the Magistrate could not take cognizance of the offence, without the necessary sanction, under section 196A; and, on this ground, the High Court held that the trial was void.
In the decisions of the Andhra Pradesh and Gujarat High Courts, referred to above, it has been held that in respect of a prosecution, for criminal conspiracy, under section 120B, read with es.
466 and 467 IPC., under which sections the offences are non cognizable, the consent, contemplated under section 196 (A) (2) is a pre requisite to any Court taking cognizance of that offence; it has also been held that sanction is not necessary to prosecute a case of criminal conspiracy to commit an offence under section 420 IPC.
The legal proposition, stated as such, is unexceptionable.
But it is not clear from the discussion, contained in the two judg ments, as to what was the object of the conspiracy.
It is also to be stated that the said two decisions had no occasion to consider the question whether sanction, under section 196 (A) (2), Cr.
P.C., is still necessary when a trial is held for offences under section 120B read with section 466, 467 and 420 IPC., and when the case of the prosecution is that the object of the conspiracy is to commit the offence of cheating, and non cognizable offences have been committed for the purpose of effecting the object of the conspiracy.
We may also point out that our attention has been drawn to the decision of this Court in Madan Lal vs State of Punjab (1).
We have gone through that decision and it does not, in our opinion, assist the appellant.
The view of the various High Courts, to which we will refer presently, and with which view we agree, is that no sanction is necessary, under section 196A(2) Cr.
P.C., when the object of the conspiracy is to commit the offence of cheating (420 IPC), but, forgery of documents (467 IPC) and similar non cognizable offences are also committed, as merely steps taken, by one or other of the accused, for the purpose of effecting the main object of the conspiracy.
A trial, under such circumstances, for offences under section 120B, read with section 467/471 and 420 IPC., without obtaining sanction, is neither illegal, nor void.
It is necessary to keep in mind the difference between the object of a conspiracy and the means adopted for realising that object.
Even if the object of the conspiracy, viz., of cheating, is (1) ; 534 sought to be attained by resort to non cognizable offences, as in the case before us, sanction under section 196A of the Code is not necessary.
This principle emerges from the following decisions: Ramaohandra Rango vs Emperor(1); Durgadas Tulsiram vs State(2); Abdul Kadar vs State(3); Paresh Nath vs Emperor(4); Golam Rahman vs The King(6); Kannan, In re(6); and Vadlamudi vs State of A.P. (7).
The object of the conspiracy has to be determined, not only by reference to the sections of the penal enactment, referred to in the charge, but on a reading of the charges themselves.
On a perusal of the charges, framed against the appellants, we are satisfied that the only object of the conspiracy was to cheat the banks or the post offices, referred to in the charges, which is an offence under section 420, read with section 120B, IPC, for which no sanction is necessary.
No doubt there are also charges of committing forgery Of valuable security and using such forged documents, which are ,offences under sections 467 and 471 IPC, and non cognizable.
But a reading of the charges, as a whole, makes it clear that it is not the case of the prosecution that committing forgery of the Indian and British postal orders or the cheques, or using such forged documents, was the object of the conspiracy.
The accused would not he satisfied by merely entering into a conspiracy to forge the postal orders or the cheques, or even to use such forged documents.
The forging of the documents and using such forged documents, were only means adopted by the accused for realising the object, of the conspiracy, which was to cheat the postal and bank authorities, at the places mentioned in the charge, by dishonestly inducing them to part with money.
Therefore the trial of these accused, for offences under sections 120B read with section 467/ 471 and 420 IPC., and other allied offences, cannot be held to be illegal, on the ground that sanction under section 196A(2) of the Code, had not been obtained.
Before closing the discussion, on this point, it is necessary to refer to the reliance placed, by the, counsel for the appellants, on the acquittal, by the High Court, of Kapoorchand, on the ground that the trial was void, because the necessary sanction had not been obtained, under section 196A, of the Code.
It will be seen that the said accused also was tried for an offence under section 120B read with section 420 IPC., as also on certain other charges.
As will be seen from the judgment of the High Court, it has taken the view that the said accused has not been convicted, by the trial Court, for an offence, under section 120B read with section 420 IPC., and hence the trial is vitiated, for lack of sanction.
(1)A.I.R. 1939 Bom.129.
(2) A.I.R. 1955 Bom.
(2)A.I.R. 1964 Rom.133.
(4) A.I.R. 1947 Cal.
(5)A.I.R. (6) (1949) 2 M.L.J. Short Notes (7)A.I.R. p. 52 (Crl.
M.P. 2686/1949) 535 Mr. Khanna, learned counsel for the respondent, has pointed out that the said accused was also tried for the offence of cheating, but he was convicted only for certain other offences; and, in this connection, he referred us to the finding of the trial Court that all the accused were guilty of the offence of cheating also.
It is not necessary to pursuematter further, because, it Will be seen from the judgment of the trial Court that the said accused was also prosecuted for anoffence under section 120 B read with section 420 IPC.
In view of what is stated above, the first contention of the learned counsel for the appellants, has to be rejected.
So far as the second contention is concerned, that really relates to merits.
Both the learned Sessions Judge, as well as the High ,Court, have very elaborately gone into the evidence regarding the appellants, and have found them guilty of the offences, for which they were punished.
We do not see any error, committed by the High Court, or the Sessions Judge, in the appreciation of the evidence, in the case, and there is no justification for any interference, by this Court.
The result is that the appeal fails, and is dismissed.
G.C. Appeal dismissed.
|
The appellants along with two others were charged with having entered into a criminal conspiracy in pursuance of which postal orders and cheques in the course of transit by post were pilfered and after various alterations being made therein were encashed at post offices and banks.
The charges inter alia were under sections 467/471 read with section 120 B and a. 420 read with section 120 B of the Indian Penal Code.
The Sessions Judge convicted all the four accused but the High Court maintained the conviction only of the two appellants.
In appeal before this Court the appellants urged that inasmuch as the accused were prosecuted for non cognizable offences under sections 467/471 read with section 120 B I.P.C. the trial was illegal and void as the necessary sanction under section 196 A(2) of the Code of Criminal Procedure had not been obtained.
It was further urged that the mere fact that the accused were also tried for the offence of cheating, under section 420 I.P.C. for which no sanction was required, would not make the trial valid.
Under these circumstances it was contended that the joint trial for cognizable and non cognizable offences was illegal and void.
HELD : It is necessary to keep in mind the difference between the object of a conspiracy and the means adopted for realising that object.
No sanction is necessary under section 196 A(2) Cr.
P.C. when the object of the conspiracy is to commit the offence of cheating (420 I.P.C.) but forgery of documents (467 I.P.C.) and similar non cognizable offences are also committed, as merely steps taken, by one or other of the a for the purpose of effecting the main object of the conspiracy.
[533 F H] The object of the conspiracy has to be determined, not only by reference to the sections of the penal enactment, referred to in the charge but on a reading of the charges themselves.
The charges against the appellants showed that the only object of the conspiracy was to cheat the banks or the post offices, referred to in the charges, which is an offence under section 420 read with section 120 B I.P.C. for which no sanction is necessary.
The forging of the documents and usuing such forged documents were only means adopted by the accused for realising the aforesaid object.
Therefore the trial of the accused in the present case for offences under sections 120 B read with sections 467/471 and 420 I.P.C. and other allied offences, cannot be held to be illegal on the ground that sanction under section 196 A(2) of the Criminal Procedure Code had not been obtained.
[534 B E] State of Andhra Pradesh vs Kandimala Subbaiah, Ramchandra Rango vs Emperor, A.I.R. 1939 Bom.
129, Durgadas Tulsiram vs State, A.I.R. 1955 Bom. 82, Abdul Kadar vs State, A.I.R. 1964 Bom.
133, Paresh Nath vs Emperor, A.I.R. 1947 Cal.
32, Golam Rahman 528 529 Notes p. 52 Vadlamudi vs State of A.P. A.I.R. 1961 A.P. 448, referred to.
Subbaiah, In re : I.L.R. , Jadeda Meramanji vs State of Gujarat, (1963)2 Cr. L.J. 713, Nibaran Chandra vs Emperor, A.I.R. 1929 Cal.
754 and Madan Lal vs State of Punjab, ; , distinguished.
|
vil Appeal Nos.
3241 48 of 1981 Etc.
From the Judgment and Order dated 20.7.1983 of the Punjab & Haryana High Court in C.W.P. Nos.
469,748,750,751,752 and 753 of 1981 B.N. Shinghvi, V.A. Bobde, M.K. Ramamurthy, N.B. Shetty K.K. Venugopal, Dr. Anand Prakash, S.S. JavaIi, H.S. Gill, Brij Bhushan, M.G. Ramachandran, M.C. Dhingra, A.K. Sanghi, U.A. Rana, B.R. Agarwala, R.C. Pathak, Naresh Mathur, S.K. Sajwan.
Baby Lal, Praveen Kumar, B.B. Singh, Vineet Kumar, B.D. Ahmed.
R.S. Hegde, Parijat Singh, Mrs. Jayshree Wad, section Balakrishnan, Ms. Janani, Mrs. Urmila Kapoor, T.T. Kunhikan nan, H.K. Puri, section Srinivasan, Mrs. M. Karanjawala, Vijay Kumar Verma.
Ashok Grover, V.N. Ganpule, M.A. Gagrat, Mrs. P.S. Shroff, Anil Gupta, R.A. Gupta, A.K. Ghosh, section Mandal, Ranjit Kumar, M. Veerappa, Girish Chandra, Dr. Meera Aggar wal, A.K. Srivastava, K.R. Nambiar, A.G. Ratnaparkhi, R. Satish, P.H. Parekh, S.A. Shroff and K.V. Sree Kumar for the appearing parties.
This analogous cluster of seventeen appeals by special leave, and a special leave petition involves a common question of law though they arise out of the following respective facts: c.A. Nos.
324 z 3248 of 1981 These eight appeals by the Land Development and Reclama tion Corporation, Chandigarh are from the Judgment and Order of the Punjab and Haryana High Court dismissing its writ petitions challenging the Award dated 2.8.1980 of the Labour Court, Chandigarh holding that the respondents were entitled to reinstatement with back wages except Yaspal (C.A. No. 3242 of 1981) who was to get wages up to 10.10.1979, with benefits of continuity of service.
The respondents were workmen under the management of the Corporation and their services were terminated on the ground that the Chairman had no power to appoint them.
The Labour Court in its Award held that their services were terminated illegally without pay ment of retrenchment compensation under the , hereinafter referred to as the Act ', and that they were entitled to reinstatement.
117 C.A. No. 686 (NL) of 1982 This appeal is from the Judgment dated 9.11.1981 of the High Court of Bombay (Nagpur Bench).
The first respondent was an employee of the appellant 's corporation since 1972.
He was taken on probation in 1975 for one year which was extended from time to time, lastly from 1.9.1977 to 31.10.
1977, whereafter his services being not found satisfactory were terminated with effect from 1.11.1977 under Regulation 44(b) of the State Transport Employees Service Regulations of the Corporation.
The Labour Court took the view that it amounted to retrenchment and the provisions of section 25F of the Act having not been complied with the termination was ille gal.
The appellant 's writ petition therefrom was dismissed.
C.A. No. 1817 of 1982 The respondent workman was employed by the appellant Bank on 3.10.1962 as a clerk and he was put on probation for six months.
As allegedly there was total lack of confidence of the bank in the employee it terminated his service on 27.7.1974 on payment of three month 's salary.
The industrial tribunal by its award dated 3.12.1981 directed reinstatement of the workman with full back wages on the ground of non compliance with the provisions of section 25F of the .
The employer Bank now appeals from that Award.
C.A. No. 1898 of 1982 Respondent Nos. 2 6 were employed on probation by the appellant a partnership firm on 12.6.1975.
Respondent Nos.
2 5 assaulted a supervisor and being afraid of police re mained absent from 29.3.1976 and abandoned their jobs and their services were terminated.
Respondent No. 6 stopped attending duties from 9.8.1975 and he left the service of his own accord.
The Labour Court by its Award dated 16.9.
1980 held that their termination amounted to retrenchment and was illegal for non compliance with the provisions of section 25F of the Act and they were entitled to reinstatement with full back wages.
The Management 's writ petition challenging the Award having been unsuccessful, it has appealed.
C.A. No. 3261 of 1982 Respondent Namdeo was a clerk under the appellant Maha rashtra State Road Transport Corporation.
Pursuant to a disciplinary 118 proceeding his service was terminated with effect from 23.4.1963 by giving him one month 's salary in lieu of no tice.
Moved by the respondent, the Assistant Commissioner under section 16 of the C.P. & Berar Industrial Disputes Settle ment Act, 1947 held the Inquiry Proceeding to be an empty paper formality and the termination amounted to dismissal and accordingly he set aside the order and directed the corporation to reinstate and pay him his back wages amount ing to Rs. 15,97 1.66 within one month.
The Corporation having moved the State Industrial Court at Nagpur under section 16(5) of the Settlement Act, that Court by its order dated 29.9.1973 allowed the application and set aside the Assist ant Labour Commissioner 's judgment and dismissed the work man 's application holding that the acts of misconduct fairly stood proved and he deserved to be dismissed from service.
The High Court on being moved by the workman set aside the Labour Court 's order and restored that of the Assistant Labour Commissioner.
Hence this appeal.
CIVIL APPEAL NO.
3025 . .
OF 1990 The services of the workman Sri Pratap Singh, driver respondent No. 3 were terminated with effect from 18.10.1974 under clause 9(a)(i) of the DRTA (Conditions of Appointment and Service) Regulations 1952.
As the conciliation efforts failed, the order was placed before the Labour Court, Delhi, who set aside the order on the ground of noncompliance with the provisions of section 25F of the Act and ordered reinstate ment with full back wages and continuity of service.
The High Court having dismissed the writ petition therefrom, the appellant seeks special leave.
We grant special leave and hear the appeal.
C.A. No. 885 of 1980 The workmen appellants Nos. 2 and 3 were discharged on I 1.11.1972 for their trade union activities.
The Labour Court, Bombay by its Award dated 25.8.1977 refused to inter fere.
Challenge to the Award in the High Court having failed, the workmen appealed to this Court.
C.A. No. 1866 of 1982 The workman respondent No. 2 reported for artisan train ing on 25.9.1963 and was absorbed as artisan trainee on 16.3.1964.
He was made a skilled machine operator, under the appellant company and was discharged with effect from 23.7.1970.
The Labour Court by its 119 Award dated 1.8.1980 held the termination to be illegal on ground of non compliance of section 25F of the Act, though the order of discharge was issued under Standing Order 18(1).
The Company has appealed against the said order.
C.A. No. 1868 of 1984 The respondent was an employee in the appellant 's facto ry as welder and his services were terminated with effect from 21.11.1972 under Standing Order No. 28.
The Labour Court by its Award dated 30.12.1980 held the order of termi nation amounted to retrenchment and bad for non compliance with section 25F and hence set it aside and ordered reinstatement with full back wages.
Hence this appeal.
C.A. No. 8456 of 1983 The respondent was dismissed by the appellant Corpora tion after disciplinary inquiry by order dated 28.5.1971 paying one month 's wages in advance.
The workman having raised an industrial dispute, the Labour Court, Aurangabad by its Award dated 9.11.1979 held the order of termination to be legal and proper.
The respondent 's writ petition therefrom was allowed and the Award was quashed and the workman was declared entitled t0 reinstatement.
Hence this appeal.
C.A. No. 10828 of 1983.
The respondent was a store keeper of Rungta Colliery.
His name was struck off the rolls of the Colliery with effect from 8.7.1975.
He having raised an industrial dis pute, the Industrial Tribunal, Jabalpur by its Award dated 22.8.1977 held the striking off t0 be unjustified and that the termination amounted to retrenchment and bad for non payment of retrenchment compensation.
In the workman 's Letters Patent Appeal the Division Bench of the High Court also held that the termination amounted to retrenchment.
Hence this Management 's appeal.
The respective cases were argued with some dexterity by the learned counsel Mr. B.N. Singhvi, Mr. N.B. Shetye, Mr. S.S. Javali, Mr. K.K. Venugopal, Mr. V.A. Bobde, Mr. M.K. Ramamurthy, Mr. M.G. Ramachandran & Mr. R.S. Hegde.
On the above diverse facts two rival contentions are raised by the parties.
The learned counsel for the employers contend that the word 'retrenchment ' as defined in section 2(00) of the Act means termination of 120 service of a workman only by way of surplus labour for any reason whatsoever.
The learned counsel representing the workmen counted that 'retrenchment ' means termination of the service of a workman for any reason whatsoever, other than those expressly excluded by the definition in section 2(00) of the Act.
The precise question to be decided, therefore, is whether on a proper construction of the definition of "retrenchment" in section 2(00) of the Act, it means termination by the employer of the service of a workman as surplus labour for any reason whatsoever, or it means termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and those expressly excluded by the definition.
In other words, the question to be decided is whether the word "retrenchment" in the definition has to be understood in its narrow, natural and contextual meaning or in its wider literal meaning.
Mr. N.B. Shetye, Mr. K.K. Venugopal, and the learned counsel adopting their arguments refer to the introduction of the provision of "retrenchment" in the Act.
Retrenchment was not defined either in the repealed Trade Disputes Act, 1929, or in the , as originally enacted.
Owing to a crisis in the textile industry in Bom bay, apprehending large scale termination of services of workmen, the Government of India issued an Ordinance which later became the Industrial Disputes (Amendment) Act, 1953 (Act 43 of 1953) which was deemed to have come into force on the 24th day of October, 1953.
Besides introducing the definitions of "lay off" [Clause 2 (kkk)] and "Retrenchment" [Clause 2(oo)] this Amendment Act of 1953 also inserted Chapter VII in the Act which dealt with "lay off" and "Retrenchment".
That Chapter contained sections 25A to 25J. Section 25A provided that sections 25C to 25E inclusive shall not apply to certain categories of industrial estab lishments.
Section 25C dealt with right of workmen laid off compensation.
Section 25D provided for maintenance of muster rolls of workmen by employers and section 25E stated the cases in which the workmen were not entitled to lay off compensation.
Section 25F dealt with conditions precedent to retrenchment of workmen.
Section 25G dealt with procedure for retrenchment and section 25H dealt with re employment of retrenched workmen; and section 25J dealing with the effect of laws inconsistent with this Chapter said that the provi sions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (including standing orders made under the Industrial Employ ment (Standing Orders) Act, 1946 (XX of 1946); 121 provided that nothing contained in this Act shall have effect to derogate from any fight which a workman has under any award for the time being in operation or any contract with the employer.
The Statement of Objects and Reasons of the Amendment Act, 1953 was as under: "The Industrial Disputes (Amendment) Bill, 1953 seeks to provide for payment of compensation to workmen in the event of their lay off or retrenchment.
The provisions included in the Bill are not new and were discussed at various tripar tite meetings.
Those relating to lay off are based on an agreement entered into between the representatives of em ployers and workers who attended the 13th session of the Standing Labour Committee.
In regard to retrenchment, the Bill provides that a workman who has been in continuous employment for not less than one year under an employer shall not be retrenched until he has been given one month 's notice in writing or one month 's wages in lieu of such notice and also a gratuity calculated at 15 days ' average pay for every completed year of service or any part thereof in excess of six months.
A similar provision was included in the Labour Relations Bill, 1950, which has since lapsed.
Though compensation on the lines provided for in the Bill is given by all progressive employers, it is felt that a common standard should be set for all employers" Clause 2(00) as inserted read as under: " 'Retrenchment ' means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary ac tion, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of super annuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill health.
" 122 We are referred to contemporaneous interpretation of the word "retrenchment.
In Employees of Messrs India Reconstruc tion Corporation Ltd., Calcutta vs Messers.
India Recon struction Corporation Ltd., reported in it was observed by the Calcutta High Court: "Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with.
In sub stance the difference between closure and normal retrench ment is one of degree only.
As in the case of retrenchment so in the case of closure the workmen are not responsible for closing their jobs.
In both the cases, what is called compensation by way of retrenchment relief should be admis sible.
" In Messrs Benett Coleman and Company Ltd. vs Their Employees, reported in it was observed by Cal cutta High Court: "Thus whether the closure was justified or not, the workmen who have lost their jobs would in any event get compensa tion.
If it was not bona fide or not justified, it may be that the measure of compensation would be larger than if it was otherwise.
" The above almost contemporaneous exposition is worth consideration, Contemporanea expositio est optima et fortio sima in lege, Contemporaneous exposition is the best and strongest in the law.
A statute is best ex plained by following the construction put upon it by judges who lived at the time it was made.
In Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union, , the appellant company could not work its mills to full capacity owing to short supply of sugar cane and got the permission of the Government to sell its machinery but continued crushing cane under a lease from the purchaser.
The workmen 's union in order to frustrate the transaction resolved to go on strike and serving a strike notice did not cooperate with the management with the result that it lost heavily.
On the expiry of the lease and closure of the industry, the services of the workmen were duly terminated by the company.
The workmen claimed the share of profits on the basis of the offer earlier made by the compa ny and accepted by the workers.
The company having declined to pay and the dispute having been referred, 123 the Industrial Tribunal held that the company was bound to pay and accordingly awarded a sum of Rs.45,000 representing their share of the profits and the award was affirmed by the Labour Appellate Tribunal.
Question before this Court in appeal was whether the termination of the workmen on the closure of the industry amounted to retrenchment.
It was held that the award was not one for compensation for termi nation of the services of the workmen on closure of the industry, as such discharge was different from the discharge on retrenchment, which implied the continuance of the indus try and discharge only of the surplusage, and the workmen were not entitled either under the law as it stood on the day of their discharge or even on merits to any compensa tion.
The contention of the workmen was that even before the enactment of Industrial Disputes (Amendment) Act, 1953, the tribunal had acted on the view that the retrenchment includ ed discharge on closure of business and had awarded compen sation on that footing and that the award of the tribunal in Pipraich 's case could be supported in that view and should not be disturbed.
This was based on the decision in Employ ees of Messrs India Reconstruction Corporation Ltd. Calcutta vs Messrs India Reconstruction Corporation Ltd., (supra); and Messrs Benett Coleman and Company Ltd. vs Their Employ ees, (supra).
But their Lordship did not agree.
Venkatarama Ayyar, J. speaking for the four Judge Bench said: "Though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded, retrench ment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business." As a result it was held that the Award in Pipraich was against the agreement and could not be supported as one of compensation to the workmen.
Thus this Court in Pipraich (supra) was dealing with the question whether the discharge of the workmen on closure of the undertaking would constitute retrenchment and whether the workmen were entitled on that account to retrenchment compensation; and it was observed that retrenchment connoted in its ordinary acceptation that the business itself was being continued but that a portion of the staff or 124 the labour force was discharged as surplusage and the termi nation of services of all the workmen as a result of the closure of the business could not, therefore, be properly described as retrenchment, which in the ordinary parlance meant discharge from the service and did not include dis charge on closure of business.
The same view was expressed in Hariprasad Shivshankar Shukla vs A.D. Divikar, [1957] SCR 121; also reported sub nomine Barsi Light Railway Co. vs K.N. Joglekar, , wherein the Constitution Bench heard two appeals; namely, Civil Appeal Nos. 103 and 105 of 1956.
In Civil Appeal No. 105 of 1956 the main appellant was the Barsi Light Railway Company Ltd., and the principal respond ent was the President of the Barsi Light Railwaymen 's Union.
Under an agreement dated August 1, 1895 between the Secre tary of State for India in Council and the Railway Company, the Secretary of State could purchase and take over the undertaking after giving Railway Company a notice.
On Decem ber 19, 1952 a notice was given to the Railway Company for and on behalf of the President of India that the undertaking of the Railway Company would be purchased and taken over as from January 1, 1954.
On November 11, 1953, the Railway Company served a notice on its workmen intimating that as a result of the talking over, the services of all the workmen of the Railway Company would be terminated with effect from December 31, 1953.
The notice further stated that the Gov ernment of India intended to employ such of the staff of the company as would be willing to serve on the railway on terms and conditions which were to be notified later.
About 77 per cent of the staff of the Railway Company were reemployed on the same scales of pay, about 23 per cent were reemployed on somewhat lower scales of pay and only about 24 per cent of the former employees of the Railway Company declined service under the Government.
Applications for compensation having been filed on behalf of the erstwhile workmen of the Railway Company under section 15 of the , for payment of retrenchment compensation to the said workmen under clause (b) of section 25F of the Act, the question was whether the erstwhile workmen were entitled to claim compen sation under clause (b) of section 25F of the Act; and whether they had been retrenched by their former employer within the meaning of the expression 'retrenchment ' in the Act.
In Civil Appeal No. 103 of 1956, the main appellant was Sri Dinesh Mills Ltd. Baroda and the principal respondent was District Labour Officer and Inspector under the .
The appellant company was running a woollen mill at Baroda and had abut 450 workmen and 20 clerks who worked in shifts day and night.
On or about October 31, 125 1953, the appellant put up a notice declaring its intention to close down the entire mill.
As a result of the closure, the services of all 450 workmen and 20 clerks were terminat ed and the appellant company claimed that the closure was bona fide being due to heavy losses sustained by the compa ny.
The principal respondent claimed retrenchment compensa tion for the workmen of the appellant under clause (b) of section 25F of the Act.
Section 25F at the relevant time stood as follows: "25F. Conditions precedent to retrenchment of workmen.
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days ' average pay for every completed year of service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appro priate Government.
" In both the appeals the question before the Constitu tion Bench was whether the claim of the erstwhile workmen both of the Railway Company and of Shri Dinesh Mills Ltd., to the compensation under clause(b) of section 25F of the Act was a valid claim in law.
Observing that the Act had a 'plexus of amendments ', and some of the recent amendments had been quite extensive in nature and that section 25F occurred in Ch.
VA of the Act which dealt with 'lay off and retrenchment ' in the Amending Act, and analysing section 25F as it then stood, S.K. Das, J. speaking for the Constitution Bench observed that in the first part of the section both the words 're trenched ' and 'retrenchment ' were used and obviously they had the same meaning except that one was verb 126 and the other was a noun and that to appreciate the true scope and effect of section 25F one must first understand what was meant by the expression 'retrenched ' or 'retrenchment ' Analysing the definition of 'retrenchment ' in section 2(00) the Court found in it the following four essential require ments: (a) termination of the service of a workman;, (b) by the employer; (c) for any reason whatsoever; and (d) other wise than as a punishment inflicted by way of disciplinary action.
The Court then said: "It must be conceded that the definition is in very wide terms.
The question, however, before us is does this defini tion merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of his business by the em ployer?" The Court further said: "There is no doubt that when the act itself provides a dictionary for the words used, we must look into that dic tionary first for an interpretation of the words used in the statute.
We are not concerned with any presumed intention of the legislature; our task is to get the intention as ex pressed in the statute.
Therefore, we propose first to examine the language of the definition and see if the ordi nary, accepted notion of retrenchment fits in, squarely and fairly, with the language used.
" The Court reiterated the following observations in Pipraich (supra): "But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff of the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment.
" 127 This was the ordinary accepted notion of 'retrenchment ' in an industry before addition of section 2(oo) to the Act, as retrenchment in that case took place in 1951.
Replying to the argument that by excluding the bona fide closure of business as one of the reasons for termination of the serv ice of workmen by the employer, one would be cutting down the amplitude of the expression 'for any reason whatsoever ' and reading into the definition the words which did not occur there, the Court agreed that the adoption of the ordinary meaning would give to the expression 'for any reason whatsoever ' a somewhat narrower scope; one might say that it would get a colour in the context in which expres sion occurred; but the Court did not agree that it amounted to importing new words in the definition and said that the legislature in using that expression said in effect: "It does not matter why you are discharging the surplus; if the other requirements of the definition are fulfilled, then it is retrenchment".
In the absence of any compelling words to indicate that the intention was to include bona fide closure of the whole business, it would be divorcing the expression altogether from its context to give it such a wide meaning as was contended.
About the nature of the definition it was said: "It is true that an artificial definition may include a meaning different from or in excess of the ordinary accepta tion of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended.
Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined.
" The Court in Hariprasad dealt with two other conten tions; one was that before the amending Act of 1953 the retrenchment had acquired a special meaning which included the payment of compensation on a closure of business and the legislature gave effect to that meaning in the definition clause and by inserting section 25F.
The second was that section 25FF inserted in 1956 by Act 41 of 1956 was 'Parlia mentary exposition ' of the meaning of the definition clause and of section 25F.
Rejecting the contentions the Court held that retrenchment meant the discharge of surplus workmen in an existing or continuing business; it had acquired no special meaning so as to include discharge of workmen on bona fide closure of business, though a number of Labour Appellate Tribunals awarded compensation to 128 workmen on closure of business as an equitable relief for variety of reasons.
The Court accordingly held: ". that retrenchment as defined in section 2(00) and as used in section 25 has no wider meaning than the ordinary, accepted connotation of the word; it means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of discipli nary action, and it has no application where the services of all workmen have been terminated by the employer on real and bona fide closure of business as in the ' case of Shri Dinesh Mills Ld. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company.
" It is interesting to note that the Amending Act No. 41 of 1956 inserted original section 25FF on September 4, 1956.
The objects and reasons were stated thus: "Doubt has been raised whether retrenchment compensation under the becomes payable by reason merely of the fact that there has been a change of employers, even if the service of the workman is continued without interruption and the terms and conditions of his service remain unaltered.
This has created difficulty in the transfer, re constitution and amalgamation of companies and it is proposed to make the intention clear by amending section 25F of the Act.
" Hariprasad 's case (supra) was decided on November 27, 1956.
The Industrial Disputes (Amendment) Ordinance, 1957 (4 of 1957) was promulgated immediately thereafter with effect from December 1, 1956 and that Ordinance was replaced by the Industrial Disputes (Amendment) Act 1957 (XVIII of 1957).
The following was the Statement of Objects and Reasons: "In a judgment delivered on the 27th November, 1956, the Supreme Court held that no retrenchment compensation was payable under section 25F of the , to workmen whose services were terminated by an em ployer on a real and bona fide closure of business, or when termination occurred as a result of transfer of owner 129 ship from one employer to another (see AIR 1957 SC 12 1).
This has led and is likely to lead to a large number of workmen being rendered unemployed without any compensa tion.
In order to meet this situation which was causing hardship to workmen, it was considered necessary to take immediate action and the Industrial Disputes (Amendment) Ordinance, 1957 (4 of 1957), was promulgated with retrospec tive effect from 1st December, 1956." "This Ordinance was replaced by an Act of Parliament enact ing the provisions contained in sections 25FF and 25FFF.
These sections provide that 'compensation would be payable to workmen whose services are terminated on account of the transfer or closure of undertakings. ' In the case of trans fer of undertakings, however, if the workman is re employed on terms and conditions which are not less favourable to him, he will not be entitled to any compensation.
This was the position which existed prior to the decision of the Supreme Court.
In the case of closure of business on account of the circumstances beyond the control of the employer, the maximum compensation payable to workmen has been limited to his average pay for three months.
If the undertaking is engaged in any construction work and it is closed down within two years on account of the completion of its work, no compensation would be payable to workmen employed there in.
" Hariprasad (supra) having accepted the ordinary contex tual meaning of retrenchment, namely, termination of surplus labour as the major premise it was surely open to the Par liament to have amended the definition of retrenchment in section 2(00) of the Act.
Instead of doing that the Parliament added section 25FF and 25FFF which said: "25FF.
Compensation to workmen in case of transfer of under takings Where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer, in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compen sation in accordance with the provisions of section 25F, as if the workman had been retrenched: 130 Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if (a) the service of the workman has not been interrupted by such transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favour able to the workman than those applicable to him immediately before the transfer; and (c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer." "25FFF.
Compensation to workmen in case of closing down of undertakings (1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in contin uous service for not less than one year in that undertaking immediately before such closure shall, subject to the provi sions of sub section (2), be entitled to notice and compen sation in accordance with the provisions of section 25 F, as if the workman had been retrenched; Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workmen under clause (b) of section 25 F shall not exceed his aver age pay for three months.
" Thus, by this Amendment Act the Parliament clearly provided that though such termination may not have been retrenchment technically so called, as decided by this Court, neverthe less the employees in question whose services were terminat ed by the transfer or closure of the undertaking would be entitled to compensation, as if the said termination was retrenchment.
As it has been observed, the words "as if" brought out the legal distinction between retrenchment defined by section 2(00) as it was interpreted by this Court and termination of services consequent upon transfer of the undertaking.
In other words, the provision was that though termination of services on transfer or closure of 131 the undertaking may not be retrenchment, the workmen con cerned were entitled to compensation as if the said termina tion was retrenchment.
Thus we find that till then the accepted meaning of retrenchment was ordinary, contextual and narrower meaning of termination of surplus labour for any reason whatsoever.
In Anakapalla Co operative Agricultural and Industrial Society Ltd. vs Workmen, [1963] Suppl.
1 SCR 730, a company running a sugar mill was suffering losses every year due to insufficient supply of sugarcane and wanted to shift the mill.
The cane growers formed a co operative society and purchased the mill.
As agreed between the company and the society, the company terminated the services of the employ ees and paid retrenchment compensation to them under section 25FF of the Act.
This society employed some of the old employees and refused to absorb some of them who raised an industrial dispute.
The Industrial Tribunal having directed the purchaser society by its award to re employ them, the society contended that it was not a successor in interest of the company and hence the claim of re employment was not sustainable and the services of the employees having been terminated upon payment of compensation by the company under section 25FF no claim could be made against the transferee socie ty.
This Court held that the society was the successor in interest of the company as it carried on the same or similar business as was carried by the vendor company at the same place and without substantial break in continuity.
It was further held that the employees were not entitled to both compensation for termination of service and immediate re employment at the hands of the transferee and section 25H was not applicable to the case as the termination of service upon transfer or closure was not retrenchment properly so called and that termination of service dealt with in section 25FF could not be equated with retrenchment covered by section 25F.
It was observed that the words 'as if ' in section 25FF clearly distinguished retrenchment under section 2(00) and termination under section 25FF.
Gajendragadkar, J., as he then was, speaking for the five Judges Bench said that in Hariprasad this Court was called upon to consider the true scope and effect of the concept of retrenchment as defined in section 2(00) and it held that the said definition had to be read in the light of the accepted connotation of the words, and as such, it could have no wider meaning than the ordinary connotation of the word and according to this connotation retrenchment meant the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise ' then as a punishment inflicted by way of disciplinary action, and did 132 not include termination of services of all workmen on the bona fide closure of industry or on change of ownership or management thereof.
It was observed: " . . the effect of this decision was that though the definition of the word 'retrenchment ' may perhaps have included the termination of services caused by the closure of the concern or by its transfer, these two latter cases could not be held to fall under the definition because of the ordinary accepted connotation of the said word.
This decision necessarily meant that the word 'retrenchment ' in section 25FF had to bear a corresponding interpretation." In Workmen of Subong Tea Estate vs The outgoing Manage ment of Subong Tea Estate and Anr., reported in ; , it was similarly observed at page 613 of the report: "In dealing with the question of retrenchment in the light of the relevant provisions to which we have just referred, it is, however, necessary to bear in mind that the manage ment can retrench its employees only for proper reasons.
It is undoubtedly true that it is for the 'management to decide the strength of its labour force, for the number of workmen required to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion, and so, occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertak ing.
In such a case, if any workman become surplus, it would be open to the management to retrench them.
Workmen may become surplus on the ground of rationalisation or on the ground of economy reasonably and bona fide adopted by the management, or of other industrial or trade reasons.
In all these cases, the management would be justified in effecting retrenchment in its labour force.
Thus, though the right of the management to effect retrenchment can not normally be questioned, when a dispute arises before an Industrial Court in regard to the validity of any retrenchment, it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified for proper reasons.
It would not be open to the management either capriciously or without any reason at all to say that it proposes to reduce its labour 133 force for no rhyme or reason.
This position can not be seriously disputed" In Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukherjee and Ors., reported in ; where the post of motion setter was abolished and the respondent was given a job of a trainee on probation for the post of As sistant Line Fixer and the management found him unsuitable for the job even after extending his probation period upto nine months and offered him the post of fitter on the same pay and the respondent instead of accepting the offer wanted to be given another chance to show his efficiency in his job and the management struck off his name from the rolls with out complying with the provisions of section 25F(a) and (b) of the Act and the Labour Court having given award in the respondent 's favour and the appellant 's writ petition was rejected by the High Court, Goswami, J. speaking for three Judges Bench said: "Striking off the name of the workman from the rolls by the management is termination of his service.
Such termination of service is retrenchment within the meaning of section 2(00) of the Act.
There is nothing to show that the provisions of section 25F (a) and (b) were complied with by the management in this case.
The provisions of section 25F(a), the proviso apart, and (b) are mandatory and any order of retrenchment in violation of these two peremptory conditions precedent is invalid.
" The appeal was accordingly dismissed.
The earlier decisions were not referred to.
Next comes the decision in State Bank of India vs Shri N. Sundara Money, reported ; Chandra chud, V.R. Krishna lyer and A.C. Gupta, JJ.).
In an applica tion under Article 226, the respondent on automatic extin guishment of his service consequent to the pre emptive provision as to the temporariness of the period of his employment in his appointment letter claiming to have been deemed to have had continuous service for one year within the meaning of section 25(B)(2) of the Act, the Single Bench of the High Court having allowed his writ petition and the writ appeal of the appellant having also failed, this Court in appeal found as fact that the appointment was purely tempo rary one for a period of 9 days but might be terminated earlier, without assigning any reason therefor at the peti tioner 's discretion; and the employment unless terminated earlier, would automatically cease at the expiry of the period i.e. 18.11.1972.
This 9 days ' employment added on to what had gone before ripened to a continuous service for a year "on the antecedent arithmetic of 240 days of broken bits of service" and considering the meaning of 'retrench ment ' it was held that the expression for any reason whatso ever 134 was very wide and almost admitting of no exception.
The contention of the employer was that when the order of ap pointment carried an automatic cessatioin of service, the period of employment worked itself out by efflux of time, not by act of employer and such cases were outside the concept of retrenchment.
This Court observed that to re trench is to cut down and one could not retrench without trenching or cutting, but "dictionaries are not dictators of statutory construction where the benignant moo&of a law and, more emphatically, the definition clause furnish a different denotation.
" Accepting the literal meaning, Krishna Iyer, J. observed: "A break down of section 2(00) unmistakably expands the semantics of retrenchment. 'Termination . . for any reason whatso ever ' are the key words.
Whatever the reason, every termina tion spells retrenchment.
So the sole question is, has the employee 's service been terminated? Verbal apparel apart, the substance is decisive.
A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term.
To protect the weak against the strong this policy of comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the employer, but the fact of termina tion howsoever produced.
May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the amount of section 25F and section 2(00).
Without speculating on possibilities, we may agree that 'retrenchment ' is no longer terra incognita but area covered by an expansive definition.
It means 'to end, con clude, cease. ' In the present case the employment ceased, concluded, ended on the expiration of 9 days automatically may be, but cessation all the same.
That to write into the order of appointment the date of termination confers no mokshas from section 25F (b) is inferable from the proviso to section 25F(1).
True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and a omatic extinguishment of service by effluxion of time cannot be sufficient.
" It was further observed: "Words of multiple import have to be winnowed judicially 135 to suit the social philosophy of the statute.
So screened we hold that the transitive and intransitive senses are covered in the current context.
Moreover, an employer terminates employment not merely by passing an order as the service runs.
He can do so by writing a composite order, one giving employment and the other ending or limiting it.
A separate, subsequent determination is not the sole magnetic pull of the provision.
A pre emptive provision to terminate is struck by the same vice as the post appointment termination.
Dexterity of diction cannot defeat the articulated con science of the provision.
" The precedents including Hariprasad do not appear to have been brought to the notice of their Lordship in this case.
It may be noted that since Delhi Cloth and General Mills (supra) a change in interpretation of retrenchment in section 2(00) of the Act is clearly discernible.
Mr. Venugopal would submit that the Judgment in Sundara Money 's case and for that matter the subsequent decisions in the line are per incuriam for two reasons: (i) that they failed t0 apply the law laid down by the Constitution Bench of this Hon 'ble Court in Hariprasad Shukla 's case (supra) and (ii) for the reason that they have ignored the impact of two of the provisions introduced by the Amendment Act of 1953 along with the definition of "retrenchment" in section 2(00) and section 25F namely, sections 25G and 25H.
We agree with the learned counsel that the question of the subsequent deci sions being per incuriam could arise only if the ratio of Sundara Money 's case and the subsequent Judgments in the line was in conflict with the ratio in the Hariprasad Shuk la 's case (supra) and Anakapalla 's case (supra).
The issue, it is urged, was, whether it was necessary for the Court to interpret section 2(00) as being restricted to termination of services of workmen rendered surplus for arriving at a decision in the case and if it was unnecessary to so inter pret section 2(00) for the purpose of arriving at a decision in that case, the interpretation of section 2(00) would necessarily by rendered obiter.
According to counsel, the long discus sion on interpretation of section 2(00) could not be brushed aside as either obiter or mere casual observations of the Constitution Bench.
It is urged that for the.purpose of ratio decidendi, the question is not whether a subsequent Bench of the Su preme Court thinks that it was necessary or unnecessary for the Constitution Bench, of the earlier Bench to have dealt with the issue, but whether the Constitution Bench itself thought it necessary to interpret Section 2(00) for 136 arriving at its final decision.
If the smaller Bench of the Supreme Court could ignore the earlier decision of a larger Bench of the Supreme Court by holding that in its opinion, it was not necessary for the earlier Bench to have gone into the issue, equally it would be open to a High Court to adopt the same approach and ignore binding Judgments of the Su preme Court; giving rise to judicial indiscipline.
According to counsel the Constitution Bench, in its unanimous verdict, undoubtedly found it necessary to go into the interpretation of section 2(00) and did so with elaborate reasoning supporting its findings, because if the contention of the Management in that case was accepted, namely, that "retrenchment" would cover only termination of surplus labour for any reason whatsoever, the logical result of this finding, would be twofold: (i) that the termination of the entirety of workmen by reason of closure, would not be a termination of workmen rendered surplus and, therefore, a case of closure would be outside section 2(00), and (ii) secondly, such termination of workmen rendered surplus, could arise only if the industry continued to be a running industry.
The question whether the positive content of section 2(00) restricting the definition of workmen rendered surplus, for any reason, whatsoever, is part of the ratio or not, submits Mr. Venugopal, is wholly an academic question in view of the fact that as many as 9 High Courts have restricted the applicability of section 25F, 25G and 25H to only cases of termi nation of services of surplus labour for any reason whatso ever and not to other types of termination, whatever may be the reason for such termination.
Even if a Judgment was to be based on two alternative reasons or conclusions, each one of these alternative reasons or basis, would form the ratio of the Judgment.
It is also urged that the argument would equally apply to the ratio of Anakapalla 's case rendering the Judgments in Sundra Money 's case and the later decisions per incuriam, for not having noticed or followed a binding precedent of the Supreme Court itself, as the Judgment of the Constitution Bench binds smaller Divisions of the Court.
We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions.
The Latin expression per incuriam means through inadvert ence.
A decision can be said generally t0 be given per incuriam when this Court has acted in ignorance of a previ ous decision of its own or when a High Court has acted in ignorance of a decision of this Court.
It can not be doubted that article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based.
In Bengal Immunity Company Ltd. vs State of Bihar, , it was held that the words of article 137 14 1, "binding on all courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases.
This is necessary for proper development of law and justice.
May be for the same reasons before judgments were given in the House of Lords in Re Dawson 's Settlement Lloyds Bank Ltd. vs Dawson and Ors., [1966] 1 WLR 1234, on July 26, 1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary: "Their Lordships regard the use of precedent as an indis pensable foundation upon which to decide what is the law and its application to individual cases.
It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.
They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for cer tainty as to the criminal law.
" Though the above announcement was not made in the course of judicial proceeding it shows that it is open to House of Lords to depart from the doctrine of precedent when consid ered justified.
Section 2 12 of the Government of India Act, 1935 and article 141 of the Constitution of India were enacted to make the law declared by the Supreme Court binding on all courts in the country excluding, as is now being interpret ed, the Supreme Court itself.
The doctrine of ratio deciden di has also to be interpreted in the same line.
In England a decision is said to be given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.
In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords.
It has been said that the decision of the House of 138 Lords mentioned above, refers to a decision subsequent to that of the Court of Appeal.
However, "a prior decision of the House of Lords inconsistent with the decision of the Court of Appeal, but which was not cited to the Court of Appeal will make the later decision of the Court of Appeal of no value as given per incuriam.
" But if the prior deci sion had been cited to the Court of Appeal and that court had misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House to rectify the mistake.
In Halsbury 's Laws of England 4th Ed.
10 para 745 it has been said: "While former decisions of the House are normally binding upon it, the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so.
Cases where the House may reconsider its own previous decisions are those involving broad issues of justice or public policy and questions of legal principle.
Only in rare cases will the House reconsider questions of construction of statutes or other documents.
The House is not bound to follow a previous case merely because it is indistinguishable on the facts. ' ' The position and experience in this Court could not be much different, keeping in view the need for proper develop ment of law and justice.
As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to "declare the law" on those subjects if the relevant provi sions were not really present to its mind.
But in this case sections 25G and 25H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context.
The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together.
The question howev er is whether in this case there is in fact a Judgment per incuriarn.
This raises the question of ratio decidendi in Hariprasad and Anakapalla 's cases on the one hand and the subsequent decisions taking the contrary view on the other.
139 An analysis of judicial precedent, ratio decidendi and the ambit of earlier and later decisions is to be found in the House of Lords ' decision in F.A. & A.B. Ltd. vs Lupton (Inspector of Taxes), [19722] AC 634, Lord Simon concerned with the decisions in Griffiths vs J.P. Harrison (Watford) Ltd., , and Finsbury Securities Ltd. vs Inland Revenue Commissioners, , with their inter relationship and with the question whether Lupton 's case fell within the precedent established by the one or the other case, said: "What constitutes binding precedent is the ratio decidendi of a case and this is almost always to be ascertained by an analysis of the material facts of the case that is, general ly, those facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be mate rial.
" It has also been analysed: "A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllo gism, with the major premise consisting of a pre existing rule of law (either statutory or judge made) and with the minor premise consisting of the material facts of the case under immediate consideration.
The conclusion is the deci sion of the case, which may or may not establish new law in the vast majority of cases it will be merely the application of existing law to the facts judicially ascertained.
Where the decision does consititute new law, this may or may not be expressly stated as a proposition of law: frequently the new law will appear only from subsequent comparison of, on the one hand, the material facts inherent in the major premise with, on the other, the material facts which consti tute the minor premise.
As a result of this comparison it will often be apparent that a rule has been extended by an analogy expressed or implied.
" To consider the ratio decidendi of a case we have, therefore, to ascertain the principle on which the case was decided.
Sir George Jessel in Osborne vs Rowlett, , remarked that 'the only thing in a judge 's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided '.
The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a prece dent.
In the process the 140 ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges.
This is be cause Judges, while deciding a case will give their own reasons but may not distinguish their remarks in a rigid way between what they thought to be the ratio decidendi and what were their obiter dicta, that is, things said in passing having no binding force, though of some persuasive power.
It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case." "A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower applica tion.
" The submissions of Mr. Venugopal that for the purpose of ratio decidendi, the question is not whether a subsequent Bench of this Court thinks that it was necessary or unneces sary for the Constitution Bench, or the earlier Bench to have dealt with the issue, but whether the Constitution Bench itself thought it necessary to interpret section 2 (00) for arriving at the final decision has to be held to be untena ble in this wide and rigid form.
Analysing the compled syllogism of Hariprasad 's case we find that its major premise was that retrenchment meant termination of surplus labour of an existing industry and the minor premise was, that the termination in that case was of all the workmen on closure of business on change of ownership.
The decision was that there was no retrenchment.
In this context it is important to note what subsequent benches of this Court thought to be the ratio decidendi of Hariprasad, and for that matter of Anakapalla.
In Santosh Gupta vs State Bank Of Patiala, reported in ; , O. Chinnappa Reddy, J. sitting with Krish na Iyer, J. deduced the ratio decidendi of Hariprasad thus: "In Hariprasad Shivshankar Shukla vs A.D. Divikar, the Su preme Court took the view that the word 'retrenchment ' as defined in section 2(00) did not include termination of services of all workmen on a bona fide closure of an industry or on change of ownership or management of the industry.
In order to provide for the situations which the Supreme Court held were not covered by the definition of the expression 're trenchment ', the Parliament added section 25FF and section 25FFF providing for the payment of compensation to the workmen in case of transfer of undertakings and in case of closure of undertakings respectively.
" 141 In Hariprasad (supra) the learned Judges themselves formulated the question before them as follows: "The question, however, before us is does this definition merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases t0 exist on a bona fide closure or discontinuance of his business by the em ployer.
" The question was answered by the learned Judges in the following words: "In the absence of any compelling words to indicate that the intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expres sion altogether from the context to give it such a wide meaning as is contended for by learned counsel for the respondents . . it would be against the entire scheme of the Act to give the definition clause relating to retrench ment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist." Rejecting the submission of Dr. Anand Prakash that "termina tion of service for any reason whatsoever" meant no more and no less than discharge of a labour force which was a sur plusage, it was observed in Santosh Gupta (supra) that the misunderstanding of the observations and the resulting confusion stem from not appreciating the lead question which was posed and answered by the learned Judges and ' that the reference to 'discharge on account of surplusage ' was illus trative and not exhaustive on account of transfer or closure of business.
Mr. V.A. Bobde submits, and we think rightly, that the sole reason for the decision in Hariprasad was that the Act postulated the existence and continuance of an industry and where the industry i.e. the undertaking, itself was closed down or transferred, the very substratum disappeared and the Act could not regulate industrial employment in the absence of an industry.
The true position in that case was that section 2(00) and 25F could not be invoked since the undertaking itself 142 ceased to exist.
The ratio of Hariprasad, according to the learned counsel, is discernible from the discussion at pp.
13 1 132 of the report about the ordinary accepted notion of retrenchment 'in an industry ' and Pipraich 's case was re ferred to for the proposition that continuance of the busi ness was essential; the emphasis was not on the discharge of surplus labour but on the fact that "retrenchment connotes in its ordinary acceptation that the business itself is being continued . . the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment.
" At page 134 in the last four lines also it was said: "But the fundamental question at issue is, does the definition clause cover cases of closure of business when the closure is real and bona fide?" The reasons for arriving at the conclusion are given as "it would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termi nation of service of all workmen by the employer when the business itself ceases to exist and that the industrial dispute to which the provisions of the Act applies is only one which arises out of an existing industry".
Thus, the Court was neither called upon to decide nor did it decide whether in a continuing business, retrenchment was confined only to discharge of surplus staff and the reference to discharge of surplusage was for the purpose of contrasting the situation in that case, i.e. workmen were being re trenched because of cessation of business and those observa tions did not constitute reasons for the decision.
What was decided was that if there was no continuing industry the provision could not apply.
In fact the question whether retrenchment did or did not include other terminations was never required to be decided in Hariprasad and could not, therefore have been, or be taken to have been decided by this Court.
Lord Halsbury 's dicta in Quinn vs Leathem, ; at page 506 is: " . . every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but gov erned and qualified by the particular facts of the case in which such expressions are to be found.
The other is that a case is only on authority for what it actually decides.
" This Court held in State of Orissa vs Sudhansu Misra, ; , that a decision is only an authority for what it actually decides.
143 What is of the essence in a decision is its ratio and not other observation found therein nor what logically follows from the various observations made in it.
We agree with Mr. Bobde when he submits that Hariprasad 's case is not an authority for the proposition that section 2(00) only covers cases of discharge of surplus labour and staff.
The Judg ments in Sundara Money (supra) and the subsequent decisions in the line could not be held to be per incuriam inasmuch as in Hindustan Steel and Santhosh Gupta 's cases, the Division Benches of this Court had referred to Hariprasad 's case and rightly held that its ratio did not extend beyond a case of termination on the ground of closure and as such it would not be correct to say that the subsequent decisions ignored a binding precedent.
In Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, ; the question was whether termination of service by efflux of time was termination of service within the definition of retrenchment in section 2(oo) of the Act.
Both the earlier decisions of the Court in Haripra sad (supra) and Sundara Money (supra) were considered and it was held that there was nothing in Hariprasad which was inconsistent with the decision in Sundara Money 's case.
It was observed that the decision in Hariprasad was only that the words "for any reason whatsoever" used in the definition of retrenchment would not include a bona fide closure of the whole business because it would affect the entire scheme of the Act.
The decisions in L. Robert D 'Souza vs Executive Engineer, Southern Railway and Anr., ; The Managing Director, National Garages vs
J. Gonsalves, ; Goodlas Nerolac Paints vs Chief Commis sioner, Delhi, and Rajasthan State Electricity Board vs Labour Court, , in which contrary view was taken, were overruled in Santosh Gupta holding that the discharge of the workman on the ground that she did not pass the test which would have enabled her to be confirmed was 'retrenchment ' within the meaning of section 2(oo) and therefore, the requirement of section 25F had to be complied with.
The workman was em ployed in the State Bank of Patiala from July 13, 1973 till August, 1974 when her services were terminated.
According to the workman she.
had worked for 240 days in the year preced ing August 21, 1974 and the termination of her services was retrenchment as it did not fall within any of the three accepted cases.
The management 's contention was that termi nation was not due to discharge of surplus labour but due to failure of the workman to pass the test which could have enabled her to be confirmed in the service and as such it was not retrenchment.
This contention was repelled.
144 Both Mr. Shetye and Mr. Venugopal submit that judicial discipline required the smaller benches to follow the deci sions in the larger benches.
This reminds us of the words of Lord Mailsham of Marylebone, the Lord Chancellor, "in the hierarchical system of courts which exists in this country, it is necessary for each lower tier . . to accept loyal ly the decisions of the higher tiers".
However, in view of the ratio decidendi of Hariprasad, as we have seen, there is no room for such a criticism.
In Management of Karnataka State Road Transport Corpora tion, Bangalore vs M. Boraiah, reported in ; , a Division Bench of A.N. Sen and Ranganath Misra, JJ.
fol lowing the decisions in State Bank of India vs N. Sundara Money, (supra); Hindustan Steel Ltd. vs Presiding Officer, Labour Court, Orissa, (supra); Santosh Gupta vs State Bank of Patiala, (supra); Indian Hume Pipe Co. Ltd. vs Workmen, [ ; Mohan Lal vs Management of M/s. Bharat Electronics Ltd., ; and Surendra Kumar Verma vs Central Government Industrial Tribunal cum Labour Court, New Delhi, ; , held that in the above series of cases that have come later, the Constitution Bench deci sion in Hariprasad (supra) has been examined and the ratio indicated therein has been confined to its own facts and the view indicated by the Court in that case did not meet with the approval of Parliament and, therefore, the law had been subsequently amended.
Speaking for the Court, R.N. Misra, J. significantly said: "We are now inclined to hold that the stage has come when the view indicated in Money case (supra) has been 'absorbed into the consensus ' and there is no scope for putting the clock back or for an anti clockwise operation." More than a month thereafter in Gammon India Ltd. vs Niranjan Dass; , , a three Judges Bench (D.A. Desai, R.B. Misra and Ranganath Misra, JJ.) construing the one month 's notice of termination in that case due to reduc tion of volume of business of the company said: "On a true construction of the notice, it would appeal that the respondent had become surplus on account of reduction in volume of work and that constitutes retrenchment even in the traditional sense of the term as interpreted in Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor 145 Union, though that view does not hold the field in view of the recent decisions of this Court in State Bank of India vs N. Sundara Money; Hindustan Steel Ltd. vs Presiding Officer, Labour Court, Orissa; Santosh Gupta vs State Bank of Patia la; Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukherjee; Mohan Lal vs Management of M/s. Bharat Electron ics Ltd. and L. Robert D 'Souza vs Executive Engineer, South ern Railway.
The recitals and averments in the notice leave no room for doubt that the service of the respondent was terminated for the reason that on account of recession and reduction in the volume of work of the company, respondent has become surplus.
Even apart from this, the termination of service for the reasons mentioned in the notice is not covered by any of the clauses (a), (b) and (c) of section 2(00) which defines retrenchment and it is by now well settled that where the termination of service does not fall within any of the excluded categories, the termination would be ipso facto retrenchment.
It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories.
It is therefore indisputably a case of retrenchment." (Emphasis supplied) In a fast developing branch of Industrial and Labour law it may not always be of particular importance to rigidly adhere to a precedent, and a precedent may need be departed from if the basis of legislation changes.
It was in realisa tion of the idea of a living law that in Reg vs Home Secre tary, exhibit P. Khawaja, reported in [1984] AC 74 (H.L.) it was said at p. 84: The House will depart from a previous decision where it is right to do so and where adherence to a previous decision may lead to injustice in a particular case.
Constitutional and administrative law are not fields where it is of partic ular importance to adhere to precedent.
A recent precedent may be more readily departed from than one which is of long standing.
A precedent may be departed from where the issue is one of statutory construction " We now take up the question of interpretation of section 2(00) of the Act dealing with the rival contentions, namely, ordinary or contextual as against literal meaning.
146 When we analyse the mental process in drafting the definition of "retrenchment" in section 2(00) of the Act we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever.
Having said so the Parliament proceeded to limit it by excluding certain types of termination, namely, termination as a punishment inflicted by way of disciplinary action.
The other types of termination excluded were (a) voluntary retrenchment; or (b) retrenchment of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf; or (c) termination of service of a workman on the ground of continued ill health.
Had the Parliament envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a), (b) and (c) above.
The same mental process was evident when section 2(00) was amended inserting another exclusion clause (bb) by the Amending Act 49 of 1984, with effect from 18.8.1984, "termination of the service of work man as a result of the non renewal of the contract of em ployment between the employer and the workman concerned on its expiry of such contract being terminated under a stipu lation in that behalf contained therein.
" This is literal interpretation as distinguished from contex tual interpretation. "The only rule of construction of Acts of Parliament", says Tindal, C.J. in Sussex Peerage case, [1844] 11 C1 & Fin 85 (143), "is that they should be construed according to the intent of the Parliament which passed the Act.
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
The words themselves alone do, in such case, best declare the intention of the lawgiv er.
" In Mutto vs T.K. Nandi, reported in ; (418) it was similarly said: "The Court has to determine the intention as expressed by the words used.
If the words of a statute are themselves precise and unambiguous then no more can be necessary then to expound those words in their ordi nary and natural sense.
The words themselves alone do in such a case best declare the intention of the lawgiver.
" As was stated in Thompson vs Gould, reported in ; (420) "it is a wrong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do 147 so." "The cardinal rule of construction of statute is to read statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning." [Jugalki shore vs Ram Cotton Co. Ltd.; , To interpret an Act of Parliament is to give effect to its intention.
Lord Simon in Ealing L.B.C. vs Race Relations Board, ; (360) said: "The Court sometimes asks itself what the draftsman must have intended.
This is reasonable enough: the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executive); he know what canons of construction the courts will apply; and he will express himself in such a way as accordingly to give effect to the legislative intention.
Parliament, of course, in enacting legislation assumes responsibility for the language of the draftsman.
But the reality is that only a minority of legislators will attend the debates on the legislation.
Failing special interest in the subject matter of the legislation, what will demand their attention will be something on the face of proposed legislation which alerts them to a questionable matter.
Accordingly, such canons of construction as that words in a non technical statute will primarily be interpreted according to their ordinary meaning . . " According to Lord Simon looking into the legislative history or ' the preparatory works may sometimes be useful but may often lead to abuse and waste, as "an individual legislator may indicate his assent on an assumption that the legislation means so and so and the courts may have no way of knowing how far his assumption is shared by his col leagues, even those present." "In the absence of such mate rial it is said, the courts have five principal avenues of approach to the ascertainment of the legislative intention: (1) examination of the social background, as specifically proved if not within common knowledge, in order to identify the social or juristic defect which is likely subject of remedy; (2) a conspectus of the entire relevant body of the law for the same purpose; (3) particular regard to the long title of the statute to be interpreted (and where available, the preamble), in which the general legislative objectives will be stated; (4) scrutiny of the actual words to be interpreted, in the light of the established canons of interpretation; and (5) examination of the other provisions of the statute in question (or of other statutes in pari materia) for the illumination which they 148 throw on the particular words which are the subject of interpretation.
The Heydon 's Rule requires that the court will look at the Act to see what was its purpose and what mischief in the earlier law it was designed to prevent.
Four things are to be considered: (i) What was the law before the making of the Act? (ii) What was the mischief and defect for which the earlier law did not provide? (iii) What remedy the Parlia ment had resolved to cure? (iv) What is the true reason for the remedy? The Court shall make such construction as shall suppress the mischief and advance the remedy.
Where the statute has been passed to remedy a weakness in the law, it is to be interpreted in such a way as well to bring about that remedy.
The literal rules of construction require the wording of the Act to be construed according to its literal and gram matical meaning whatever the result may be.
Unless otherwise provided, the same word must normally be construed through out the Act in the same sense, and in the case of old stat utes regard must be had to its contemporary meaning if there has been no change with the passage of time.
However, the Law Commission 21 of England has struck a note of caution that "to place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship".
In Whiteley vs Chappelf, , a statute concerned with electoral mal practices made it an offence to personate 'any person enti tle to vote ' at an election.
The defendant was accused of personating a deceased voter and the court, using the liter al rule, found that there was no offence as the personation was not of person entitled to vote.
A dead person was not entitled to vote.
A deceased person did not exist and had no right to vote and as a result the decision arrived at was contrary to the intention of Parliament.
As it was pointed out in Prince of Hanover vs Attorney General [1956] Ch.
188, the Golden Rule in the form of modified literal Rule, according to which the words of statute will as far as possible be construed according to their ordinary and plain and natural meaning, unless this leads to an absurd result.
Where the conclusion reached by applying the literal rule is contrary to the intention of Parliament, the Golden rule is helpful.
A tested rule is that of Noscitur a sociis.
The meaning of a word can be gathered from its context.
Under this rule words of doubtful meaning may be better understood from the nature of the words and phrases with which they are associated [Muir vs Keay, [1875] L.R 10 Q.B. 594].
But this will not apply when the word itself has been defined.
149 In the case before us the difficulty was created by defining 'retrenchment ' to mean something wider than what it naturally and ordinarily meant.
While naturally and ordi narily it meant discharge of surplus labour, the defined meaning was termination of service of a workman for any reason whatsoever except those excluded in the definition itself.
Such a definition creates complexity as the drafts man himself in drafting the other sections using the defined word may slip into the ordinary meaning instead of the defined meaning.
Way back in the Queen vs The Commissioners under the Boiler Explosions Act, 1882, [1891] 1 Q.B. Division 703, a boiler for generating steam was situate above ground at a colliery, and a pipe conducted the steam down the shaft and along the working to a pumping engine in the mine.
A valve in this pipe, in the mine and near the pumping engine blew off.
The question was whether the pipe in which the explo sion occurred was a 'boiler ' within the interpretation clause of the Boiler Explosions Act, 1882.
Lord M.R. Esher said; "If the Act had dealt with the explosion of a boiler and in some other ' section with an explosion in pipes or in any other specified thing, the matter would be easy; but the draftsman has gone upon that which to my mind is a dangerous method of drawing Acts of Parliament.
He has put in a sec tion which says that a boiler shall mean something which is in reality not a boiler.
This third section of the Act of 1882 that is the Boiler Explosions Act 1882 is a 'peculiarly bad specimen ' of the method of drafting, which enacts that a word shall mean something which in fact it does not mean." However, a judge facing such a problem of interpretation can not simply fold his hands and blame the draftsman.
Lord Denning in his Discipline of Law says at p. 12: "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity.
The English language is not an instru ment of mathematical precision.
Our literature would be much the poorer if it were.
This is where the draftsman of Acts of Parliament have often been unfairly criticised.
A judge, believing himself to be lettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity.
It would cer 150 tainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.
In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parlia ment, and he must do this not only from the language of the statute, but also from a consideration of the social condi tions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the writ ten word so as to give 'force and life ' to the intention of the legislature.
" Analysing the definition of retrenchment in section 2(00) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in (a) and (b), namely, voluntary retirement and retirement on reaching the stipulated age of retirement.
There would be no volitional element of the employer.
Their express exclu sion implies that those would otherwise have been included.
Again if those cases were to be included, termination on abandonment of service, or on efflux of time, and on failure to qualify, although only consequential or resultant, would be included as those have not been excluded.
Thus, there appears to be a gap between the first part and the exclusion part.
Mr. Venugopal, on this basis, points out that cases of voluntary retirement, superannuation and tenure appointment are not cases of termination 'by the employer ' and would, therefore, in any event, be outside the scope of the main provisions and are not really provisos.
The definition has used the word 'means '.
When a statute says that a word or phrase shall "mean" not merely that it shall "include" certain things or acts, "the definition is a hard and fast definition, and no other meaning can be assigned to the expression than is put down in definition" (per Esher, M.R., Gough vs Gough, A defi nition is an explicit statement of the full connotation of a term.
Mr. Venugopal submits that the definition clause cannot be interpreted in isolation and the scope of the exception to the main provision would also have to be looked into and when so interpreted, it is obvious that a restrictive mean ing has to be given to section 2(00).
It is also pointed out that section 25G deals with the prin ciple of 'last come, first go ', a principle which existed prior to the Amendment Act 151 of 1953 only in relation to termination of workmen rendered surplus for any reasons whatsoever and that was followed in Vishwamitra Press, Kanpur vs Workers of Vishwamitra Press, at p.33/41; Presidency Jute Mills Co. Ltd. vs Presidency Jute Mills Co.
Employees Union, [1952] L.A.C. 62; Iron and Steel Mazdoor Union,Kanpur vs J.K. Iron and Steel Co. Ltd., ; Halar Sali and Chemical Works, Jamnagar vs Workmen, ;Prakriti Bhushan Gupta vs Chief Mining Engineer Railway Board, ; Sudarshan Banerjee vs Mcleod and Co. Ltd., (7 11).
Besides, it is submitted, by its very nature the wide definition of retrenchment would be wholly inapplicable to termination simpliciter.
The question of picking out a junior in the same category for being sent out in place of a person whose services are being terminated simpliciter or otherwise on the ground that the management does not want to continue his contract of employment would not arise.
Similarly it is pointed out that starting from Sundara Money where termination simpliciter of a workman for not having passed a test, or for not having satisfactorily completed his probation would not attract section 25G, as the very question of picking out a junior in the same category for being sent out instead of the person who failed to pass a test or failed to satisfactorily complete his probation could never arise.
If, however, section 25G were to be followed in such cases, the section would itself be rendered uncon stitutional and violative of fundamental rights of the workmen under Articles 14, 19(1)(g) and 21 of the Constitu tion.
It would be no defence to this argument to say that the management could record reasons as to why it is not sending out the juniormost in such cases.
Since in no single case of termination simpliciter would section 25G be applicable and in every such case of termination simpliciter, without exception, reasons would have to be recorded Similarly, it is submitted, section 25H which deals with re employment of re trenched workmen, can also have no application whatsoever, to a case of termination simipliciter because of the fact that the employee whose services have been terminated, would have been holding a post which 'eo instanti ' would become vacant as a result of the termination of his services and under section 25H he would have a right to be reinstated against the very post from which his services have been terminated, rendering the provision itself an absurdity.
It is urged that section 25F is only procedural in character along with sections 25G and 25H and do not prohibit the substantive right of termination but on the other hand requires that in effecting termination of employment,notice would be given and payment of money would be made and theater procedure under sections 25G and 25H would follow.
152 Mr. Bobde refutes the above argument saying that sections 25F, 25G and 25H relate to retrenchment but their contents are different.
Whereas section 25F provides for the conditions precedent for effecting a valid retrenchment, section 25G only provides the procedure for doing so.
Section 25H operates after a valid retrenchment and provides for re employment in the circumstances stated therein.
According to counsel, the argument is misconceived firstly for the reasons that section 2 itself says that retrenchment will be understood as defined in section 2(00) unless there is anything repugnant in the sub ject or context; secondly section 25F clearly applies to re trenchment as plainly defined by section 2(00); thirdly section 25G does not incorporate in absolute terms the principle of 'last come, first go ' and provides that ordinarily last employee is to be retrenched, and fourthly sections 25H upon its true construction should be held to be applicable when the retrenchment has occurred on the ground of the workman becoming surplus to the establishment and he has been re trenched under sections 25F and 25G on the principle 'last come, first go '.
Only then should he be given an opportunity to offer himself for re employment In substance it is submit ted that there is no conflict between the definition of section 2(00) and the provisions of sections 25F, 25G and 25H.
We find that though there are apparent incongruities in the provi sions, there is room for harmonious construction in this regard.
For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant in the subject or context.
In view of this, it is clear that the extended meaning given to the term 'retrenchment ' under clause (00) of section 2 is also subject to the context and the subject matter.
Section 25 F prescribed the conditions precedent to a valid re trenchment of workers as discussed earlier.
Very briefly, the conditions prescribed are the giving of one month 's notice indicating the reasons for retrenchment and payment of wages for the period of the notice.
Section 25 FF pro vides for compensation to workmen in case of transfer of undertakings.
Very briefly, it provides that every workman who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25F "as if the workman had been retrenched".
(Emphasis supplied).
Section 25 FFA pro vides that sixty days ' notice must be given of intention to close down any undertaking and section 25 FFF provides for compensation to workmen in case of closing down of undertak ings.
Very briefly stated section 25 FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for 153 not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub section (2), be entitled to notice and compensation in accordance with the provisions of section 25 F, as if the workman had been retrenched".
(Emphasised supplied).
Section 25 H provides for re employment of retrenched workmen.
In brief, it provides that where any workmen are retrenched, and the employer proposes to take toto his employment any person, he shall, give an opportunity to the retrenched workmen to offer themselves for re employment as provided in the section subject to the conditions as set out in the section.
In our view, the principle of harmonious construc tion implies that in a case where there is a genuine trans fer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to workman "deemed. to be retrenched" a right to claim re employment as provided in section 25 H.
In such cases, as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with section 25 F.
It is significant that in a case of transfer of an undertaking or closure of an under taking in accordance with the aforesaid provisions, the benefit specifically given to the workmen is "as if the workmen had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25 F.
The last submission is that if retrenchment is under stood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the con tracts of employment in respect of the workmen whose service has been terminated.
There may be two answers to this ques tion.
Firstly, those rights may have been affected by intro duction of sections 2(00), 25F and the other relevant sections.
Secondly, it may be said, the rights as such are not affect ed or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrench ment benefit to the affected workmen, perhaps for immediate tiding over of the financial difficulty.
Looked at from this angle, there is implicit a social policy.
As the maxim goes Stat pro ratione voluntas populi; the will of the people stands in place of a reason.
Regarding the seeming gaps in the definition one would aptly remember what Lord Simonds said against the view that the court having discovered the intention of Parliament must proceed to fill in the gaps and what the legislature had not written the court must write.
"It appears to me to be a naked usurpation of the legisla 154 tive function under the thin disguise of interpretation.
And it is the less justifiable when it is guess work with what material the legislature would, if it had discovered the gap, have filled it in.
If a gap is disclosed, the remedy lies in an amending Act.
" The Court has to interpret a statute and apply it to the facts.
Hans Kelsen in his Pure Theory of Law (P. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law applying organ (especially the court) on the other.
According to him "jurisprudential interpretation i., purely cognitive ascertainment of the meaning of legal norms.
In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law".
"The purely cognitive interpretation by jurisprudence is there fore unable to fill alleged gaps in the law.
The filling of a so called gap in the law is a law creating function that can only be performed by a law applying organ; and the function of creating law is not performed by jurisprudence interpreting law.
Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm.
Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law.
" According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied; he must 'interpret ' those norms (P. 348).
Interpretation therefore is an intel lectual activity which accompanies the process of law appli cation in its advance from a higher level to a lower level.
According to him, the law to be applied is a frame.
"There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the appli cation of law.
" The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive legal 'correct ness ' of this decision is based on the statute itself.
This theory describes the interpretive procedure as if it con sisted merely in an intellectual act of clarifying or under standing; as if the law applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct choice could be made in accordance with positive law.
According to the author: "The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm creating authority that is to be determined somehow ', (c) with the expression which the norm creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to 155 which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other.
In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame.
" The definitions is section 2 of the Act are to be taken 'unless there is anything repugnant in the subject or con text '.
The contextual interpretation has not been ruled out.
In R.B.I. vs Peerless General Finance, reported in ; , O. Chinnappa Reddy, J. said: "Interpretation must depend on the text and the context.
They are the bases of interpretation.
One may well say if the text is the texture, context is what gives the colour.
Neither can be ignored.
Both are important.
That interpreta tion is best which makes the textual interpretation match the contextual.
A statute is best interpreted when we know why it was enacted.
With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.
With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act.
No part of a statute and no word of a statute can be construed in isolation.
Statutes have to be construed so that every word has a place and everything is in its place.
It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court con strued the expression 'Prize Chit ' in Srinivasa and we find no reason to depart from the Court 's construction.
" As we have mentioned, industrial and labour legislation involves social and labour policy.
Often they are passed in conformity with the resolutions of the International Labour Organisation.
In Duport Steels vs Sirs, the House of Lords observed that there was a difference between applying the law and making it, and that judges ought to avoid becoming involved in controversial social issues, since this might affect their reputation in imparti ality.
Lord Diplock said: 156 "A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out t0 have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them . .
But if this be the case it is for Parliament.
not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts Applying the above reasonings; principles and prece dents, t0 the definition in section 2(00) of the Act, we hold that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section.
The result is that C.A. Nos.
3241 48 of 1981, 686(NL) of 1982, 18 17 of 1982, 1898 of 1982, 3261 of 1982, 1866 of 1982, 1868 of 1982, 8456 of 1983, 10828 of 1983 and the appeal arising out of S.L.P. (C) No. 3149 of 1983 are dis missed with costs quantified at Rs.3,000 in each appeal.
It is stated that in C.A. No. 686 of 1982 the respondent has already been reinstated pursuant to the order dated 24.10.1983 passed by this Court, having regard to the fact that he has served since 1983, he shall be considered for confirmation with effect from his due date according to Rules, if he is not already confirmed by the Corporation.
In view of the facts and circumstances of the case, we dispose of C.A. No. 885 of 1980 with the direction that the two workmen involved in this appeal be paid compensation of Rs. 1,25,000 (Rupees one lakh twenty five thousand) each in full and final settlement of all claims including that of reinstatement.
The payment shall be spread over a period from 11.11.1972 till date for the purpose of Income tax.
C.A. No. 4116 (NL) of 1984 was on the board, but the paper book is not available.
Hence it is delinked from the series.
C.A. Nos.
512 513 of 1984 and C.A No. 783 of 1984 were wrongly placed on the board.
Their subject matters are different and hence are delinked from this cluster to be heard separately by an appropriate bench.
R.N.J. Appeals disposed of.
|
This batch of eighteen appeals by special leave involves a common question of law, regarding the scope and ambit of the word 'retrenchment ' as defined in Section 2(oo) of the Industrial Dispute Act, 1947.
112 One of the appeals is by the workmen against the order of the High Court affirming the award of the Labour Court refusing to interfere with the order of termination of their services by the employer for their trade union activities, while the rest are by the employers/ managements against the orders of High Courts/Industrial Tribunal/ Labour Court setting aside the orders of termination of the services of the illegal for non compliance of the provisions of Section 25F of the Act.
While the employers ' contention is that the word "re trenchment" as defined in Section 2(oo) of the Act means termination of service of a workman only by way of surplus labour for any reason whatsoever, the workmen contend that "retrenchment" means termination of the service of a workman for any reason whatsoever, other than those expressly ex cluded by the definition in Section 2(oo) of the Act.
Disposing of the appeals, this Court, HELD: (1) Definition of 'retrenchment ' in Section 2(oo) means termination by the employer of the service of a work man for any reason whatsoever, otherwise than as a punish ment inflicted by way of disciplinary action and those expressly excluded by the definition.
This is the wider literal interpretation as distinguished from the narrow, natural and contextual interpretation of the word to mean termination by the employer of the service of a workman as surplus labour for any reason whatsoever.
[156C; 131B] B.N. Mutto vs T.K. Nandi, ; ; Jugal Ki shore Saraf vs Raw Cotton Co. Ltd., ; ; Sussex Peerage Case, [1844] II CI & Fin 85:8 ER 1034 (HL); Thompson vs Goold & Co., ; Ealsing L.B.C. vs Race Relations Board, ; Whiteley vs Chappell, [1868] LR 4; Prince Ernest of Hanover vs Attorney General, and Muir vs Keay, 44 MJMC 143, referred to.
(2) Difficulty was created by defining 'retrenchment ' to mean something wider than what it naturally and ordinarily meant.
Such a definition created complexity as the draftsman himself in drafting the other sections using the definition may slip into the ordinary meaning instead of the defined meaning.
However, a judge facing such a problem of interpre tation cannot simply fold his hands and blame the draftsman.
[149A B; F] 113 (3) The definition has used the word 'means '.
When a statute says that a word or phrase shall 'mean ' not merely that it shall 'include ' certain things or acts, "the defini tion is a hard and fast definition, and no other meaning can be assigned to the expression than is put down in defini tion." [150F G] Queen vs Commissioners under the Boiler Explosions Act, 1882, [1891] I QBD 703 and Gough vs Gough, LT II; relied on.
(4) There are apparent incongruities when the definition Clause Section 2(oo) is considered in the context of the main provisions viz. Sections 25F, 25G and 25H but there is room for harmonious construction.
The definitions contained in Section 2 are subject to there being anything repugnant in the subject or context.
[152C D] Vishwamitra Press vs Workers, ; ; Presidency Jute Mills Co. Ltd. vs Presidency Juite Mills Co. Employees Union, [1952] I LLJ 796 (LAT) (Cal); Iron & Steel Mazdoor Union, Kanpur vs J.K. Iron and Steel Co. Ltd., ; Halar Salt and Chemical Works, Jamnagar vs Workmen, ; Prakriti Bhushan Gupta vs Chief Mining Engineer, Railway Board, ; Sudarshan Banerjee vs Mcleod and C. Ltd., ; Srinivasa Enterprises vs Union of India, ; ; Reserve Bank of India vs Peerless Central Finance and Investment Co. Ltd., [1987] 2 SCR I, referred to.
(5) The express exclusion of volitional element in cl.
(a) and (b) of Section 2(oo) namely, voluntary retirement, and retirement on superannuation age implies that those would otherwise have been included.
If such cases were to be included, termination on abandonment of service, on efflux of time and on failure to qualify, though only consequential or resultant would be included as those have not been ex cluded.
Then there appears to be a gap between the first part and the exclusion part.
When such a gap is disclosed, the remedy lies in an amending Act.
The Court has to inter pret a statute and apply it to the facts.
[150C E] Duport Steels vs Sirs, , referred to.
(6) Construing retrenchment in its wider sense, the rights of the employer under the standing orders and under contracts of employment may have been affected by Sections 2(00) and 25F and other relevant sections.
Secondly, it may be said that the rights as such are not affected or taken away but only additional social obligation has been 114 placed on the employer so as to give retrenchment benefit to affected.
workmen perhaps for tiding over immediate finan cial distress.
Seen from this angle, there is implicit a social policy.
So goes the maxim Stat Pro ratione voluntes populi the will of the people stands in place of a reason.
[153E G] (7) In Sundara Money and subsequent cases the Supreme Court has adopted wider liberal meaning rejecting the narrow natural and contextual meaning.
The question of subsequent decisions of the Supreme Court being per incuriam on grounds of failure to apply the earlier law laid down by the Consti tution Bench in Hariprasad Shukla case could arise only if ratio in Sunclara Money and subsequent decisions was in conflict with the ratio in Hariprasad and Anakapalli.
Hari prasad case is not an authority for the proposition that Section 2(oo) only covers cases of discharge of surplus labour and staff.
Sundara Money and subsequent decisions in the line could not be held to be per incuriam in as much as in Hindustan Steel and Santosh Gupta cases the Division Benches of the Supreme Court had referred to Hariprasad case, and rightly held that its ratio did not extend beyond the case of termination on the ground of closure and as such it would not be correct to say that subsequent decision overlooked a binding precedent.
In a fast developing branch of Industrial and Labour Law it may not be always of partic ular importance to rigidly stick to a precedent and a prece dent may need to be departed from if the basis of legisla tion changes.
[143B C; 145E] L. Robert D 'Souza vs Executive Engineer, Southern Rail way and Anr., ; Rajasthan State Electricity Board vs Labour Court, ; Goodlas Nerolac Paints vs Chief Commissioner, Delhi, and The Managing Director, National Garages vs J. Gonsalves, , overruled.
Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukherjee and Ors.
, ; ; Hindustan Steel Ltd. vs The Presiding Officer, Labour Court; , ; Santosh Gupta vs State Bank of Patiala, ; ; Gammon India Ltd. vs Niranjan Das, ; and Reg vs Home Secretary, Ex P. Khawaja, [1984] AC 74 (HL), relied on.
Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Maz door Union, ; Sub Nomine Barsi Light Railway Co. vs K.N. Joglekar, ; Hariprasad Shivshankar Shukla vs A.D. Divikar, [1957] SCR 121; Anaka palla Co operative Agricultural 115 and Industrial Society Ltd. vs Workmen.
[1963] Supp. 1 SCR 730 and Workmen of Subong Tea Estate vs The Outgoing Manage ment of Subong Tea Estate and Anr., ; , dis tinguished.
Employees vs India Reconstitution Corporation Ltd., ; Indian Hume Pipe Co. Ltd. vs Workmen, ; Benett Coleman and Company Ltd. vs Employees, ; Mahan Lal vs Bharat Electronic Ltd., ; and Surendra Kumar Verma vs Central Govern ment Industrial Tribunal cum Labour Court, New Delhi; , , referred to.
(8) Article 141 embodies, a rule of law, the doctrine of precedents on which our judicial system is based.
[136H] (9) Per Incuriam means through inadvertance.
A decision can be said generally to be given per incuriam when the Supreme Court has acted in ignorance of its own previous decision or when a High Court has acted in ignorance of a decision of the Supreme Court.
The problem of judgment per incuriam when actually arises, should present no difficulty as the Supreme Court can lay down the law afresh if two or more of its earlier judgments cannot stand together.
Article 141, which embodies as a rule of law, the doctrine of prece dents, was enacted to make the law declared by the Supreme Court itself.
[136G; 138G; 137F] Re Dawson 's Settlement Lloyds Bank Ltd. vs Dawson, and Bengal Immunity Company Ltd. vs State of Bihar, , relied upon (10) The doctrine of ratio decidendi has also to be interpreted in the same line.
To consider the ratio deciden di Court has to ascertain the principle on which the case was decided.
The ratio decidendi of a decision may be nar rowed or widened by the judges before whom it is cited as a precedent.
[139G H] State of Orissa vs Sudhansu Shikhar Misra, ; ; F.A. & AB Ltd. vs Lupton (Inspector of taxes), ; Osborne vs Rowlett.
and Quinn vs Leathem. ; , relied on Griffiths vs J.P. Harrison (Watford) Ltd., ; Finsbury Securities Ltd. vs Inland Revenue Commissioners, , referred to. 116
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Kishor s/o Pandurang Landkar,
aged about 27 yrs., Occ. Agriculture,
R/o. Mozri, Tal. Mangrulpir,
Dist. Washim.
1.State of Maharashtra,
through Police Station Officer,
Police Station Mangrulpir,
Dist. Washim.
2.Ganesh S/o. Shankar Bhagat,
Aged about 26 yrs, Occ. Business,
R/o. Pimpri Kharbi, Mangrulpir,
Dist. Washim.
Mr. S. S. Dhengale, Advocate for applicant.
Mr. N.R. Rode, APP for non-applicant No.1.
Mr. P . S. Wathore, Advocate for non-applicant No.2.
Heard finally by the consent of both learned counsel
appearing for the parties.
2.This is an application in terms of Section 482 of the Code of
Criminal Procedure seeking to quash First Information Report (‘FIR’)
registered with Mangrulpir Police Station, Dist. Washim vide Crime
No. 206/2023 for the offence punishable under Sections 295-A of the
Indian Penal Code, Section 3(1)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act (‘SC and ST Act’) and
Section 67-A of the Information Technology Act, 2000.
3.It is informant’s case that on 23.03.2023 around 03.00 p.m.,
he has checked WhatsApp status of the applicant, whereby the applicant
posed a question to be searched on Google. It was added in status that
one would get shocking result on search. In pursuance of that the
informant did Google search on which noted the objectionable material
amounting to outraging the religious feeling of a Class therefore, the
report.
4.It is applicant’s case that neighter he intended nor
deliberately displayed said status to outrage the feeling of a Class.
According to the applicant, WhatApp status can only be seen by the
persons who have saved applicant’s mobile number and therefore, he
has no intention to harm feeling of particular group. Moreover, it is
submitted that neither the provisions of SC and ST Act nor the provision
of Section 67-A of the Information Technology Act would apply.
5.The State has resisted the application by filing reply-affidavit.
It has been stated that the applicant is habitual offender having criminal
antecedents. According to the State, on perusal of statements and
material collected by the Investigating Officer, prima facie case is made
out. The investigation is still in progress. FIR clearly makes out a case
for investigation, hence it is not a case for quashing.
6.We have examined the entire material on record. Noted the
contents of the Police Report as well as the result found by the
informant on making Google search as per WhatApp Status. Apparently,
the WhatApp status instigate others to do Google search and read what
applicant intends. WhatsApp status can be a picture or video of what
you are doing thinking or something you have seen. By status you share
is end-to-end in encrypted text, photo, video and updates that
disappears after 24 hours. The very purpose of WhatApp status is to
convey something to his contacts. It is nothing but a mode of
communication with known persons. One puts up the status in order to
get a reaction and most of them crave for support. Now a days, the
people are checking WhatApp status now and then. One should behave
with sense of responsibility while communicating something to others.
The applicant cannot shed his primacy responsibility by saying about its
limited circulation. There is no justification for the applicant to display
such kind of status. Contents of FIR prima facie, discloses applicant’s
deliberate and malicious intention to insult the feeling of a group.
7.It is settled law that inherent powers under Section 482 of the
Code though wide, have to be exercised sparingly, carefully and with
great caution and only when such exercise is justified by the test
specifically laid down in the section itself. There is no denial that the
applicant has kept the mobile WhatApp status as alleged in the FIR. The
investigation is in embryos stage and therefore, this is not a fit case to
invoke our inherent powers. In view of that, application carries no
merits, hence rejected.
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The Nagpur Bench of Bombay High Court recently rejected a plea to quash a criminal case registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act over an allegedly objectionable WhatsApp status. [Kishor Pandurang Landkar v. State of Maharashtra & Anr.]
The Court also highlighted that people should be responsible while putting up WhatsApp statuses, since it is a form of communication that is checked by others every now and then.
In this case, a division bench of Justices Vinay Joshi and Valmiki Sa Menezes found that there was no justification for the accused, Kishore Landkar, to display the allegedly objectionable WhatsApp status.
The Court rejected Landkar's contention that the WhatsApp status was only meant to be seen by his contacts and not intended to outrage the feelings of any class of persons.
"The very purpose of WhatsApp status is to convey something to his contacts. It is nothing but a mode of communication with known persons. One puts up the status in order to get a reaction and most of them crave for support. Now a days, the people are checking WhatApp status now and then. One should behave with sense of responsibility while communicating something to others. The applicant cannot shed his primacy responsibility by saying about its limited circulation. There is no justification for the applicant to display such kind of status" the Court reasoned, in its 4 page order.
Landkar had allegedly posed a question to be searched on Google on his WhatsApp status uploaded last March and added in the same status that the said search will lead to "shocking results."
The complainant claimed that when he did the Google search, material that would outrage the feelings of a religious class was shown, prompting him to file a first information report (FIR) against Landkar.
Landkar denied having kept the status with any intention to outrage the feelings of any class. He added that the status could only be seen by a select people who had his number, which proved his intention to not outrage the feelings of anyone.
The prosecution opposed the plea to quash the case and pointed out that the investigation was still in progress.
The Court found that the police report had, prima facie, disclosed a deliberate and malicious intent by the accused to insult the feelings of a group of citizens.
The Court further noted that the investigation was still in "embryo stage" and that Landkar had not denied that he had put up the allegedly objectionable WhatsApp status.
In view of this, the Court rejected Landkar's plea.
Advocate SS Dhengale appeared for Landkar. Additional public prosecutor NR Rode was for State. Advocates PS Wathore appeared for the complainant.
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ON: Civil Appeal No. 1777 of 1973.
From the Judgment and Decree dated 25.6.1973 of the Karnataka High Court in Regular First Appeal No. 56 of 1968.
K.N. Bhatt, V.K. Verma and Ms Madhu Moolchandani for the Appellants.
S.S. Javali and B .R.
Agarwala for the Respondents.
The Judgment of the Court was delivered by 1142 KHALID, J.
This is an appeal by certificate.
against the Judgment dated 25th June, 1972, passed by a Division Bench of the Karnataka High Court.
The 1st defendant Bank is the appellant.
Original Suit No. 72 of 1962 was filed in the Court of Civil Judge.
Mangalore, by the Canara Sales Corporation, Ltd. through its Managing Director, V.S. Kudva.
He died during the pendency of the suit and the suit was continued by the succeeding Managing Director of the Corporation.
The suit was against two defendants: the appellant Bank was the first defendant and the second defendant was one Y.V, Bhat who was the Chief Accounts Officer of the plaintiff, till 1961.
He died during the pendency of the appeal before the High Court and his legal representatives were brought on record.
When the suit was filed, the appellant Bank was called the Canara Bank Ltd.
After the nationalisation of banks it became the Canara Bank which is the appellant before us.
The suit was instituted for recovery of a sum of Rs.3,26,047.92.
with the following allegations: The plain tiff is a private Limited Company with its head office at Mangalore.
It had a current account with the appellant Bank in its Mangalore Bunder branch.
The Managing Director of the company and the General Manager of a sister concern of the company had been authorised to operate the said current account of the plaintiff with the Bank.
The second defendant was attending to the maintenance of accounts of the plain tiff and was also in charge and custody of the cheque books issued by the Bank to the plaintiff.
In March, 1961, the second defendant was absent from duty for some time.
During that period one A. Shenoy, who was the Assistant of the second defendant was directed to bring the accounts upto date.
During this process, he noticed certain irregularities in the account and brought this to the notice of the plain tiff.
On verification, it was found that cheques purporting to bear the signature of Shri V.S. Kudva were encashed though they did not bear his signature.
In other words the signatures were forged.
On 25 3 196 1, a complaint was made by the plaintiff with the Superintendent of Police.
The plaintiff appointed a firm of Chartered Accountants to conduct special audit of the company 's accounts, for the years 1957:58 to 1960 61.
This special audit disclosed that the second defendant had withdrawn, in all, a sum of Rs.3,26,047.92 under 42 cheques.
The suit was filed for recovery of the amount on the plea that the amounts as per the forged cheques were not utilized for the purpose of the plaintiff, that they were not authorised ones, that there was no acquiescence or ratification open or tacit on the part of the plaintiff, that the plaintiff was unaware of the 1143 fraud till the new accountant discovered it.
The appellant Bank resisted the suit on the following grounds in their written statement: (i) That the cheques were not forged ones.
(ii) Even if they were forged ones the plaintiff was not entitled to recover the amount on account of its own negli gence.
(iii) There was settlement of accounts between the parties from time to time and as such the plaintiff was not entitled to reopen the same and claim the sums paid under the cheques in question.
(iv) The suit was barred by limitation.
The second defendant pleaded that the cheques were not forged ones and the amounts recovered by the cheques were utilized for the purpose of the plaintiff.
The Trial Court negatived the contentions of the first defendant Bank and passed a decree for the sum claimed, with interest at 6% from the date of the suit till recovery of the amount.
In appeal before the Division Bench, the judg ment of the Trial Court was confirmed.
The High Court certified that the case involved substan tial questions of law of general public importance and granted certificate to file the appeal.
It is thus that this appeal has come before us.
Venkataramiah, J. as he then was, who spoke for the Bench, has in his detailed Judgment considered all the aspects of the case both on facts and on law and agreed with the Trial Court that the suit had to be decreed, repelling the contentions raised by the first defendant.
The courts have concurrently found that the cheques were forged and that the second defendant was responsible for it.
We do not propose to consider the question of facts in this Judgment.
The learned counsel for the appellant, Shri Bhat argued the case at length and took us through various authorities, bearing on the question, most of which fell for considera tion at the hands of the High Court also.
In the instant case.
42 cheques with forged signature were presented on various dates between the year 1957 and 1961.
During the said period the appellant Bank used to send to the plaintiff respondent 1144 pass sheets containing the debit and credit entries in the current account of the plaintiff with the Bank every month and at the end of every half year ending 30th June and 31st December, a letter used to be sent asking the respondent to confirm that the balance in his account with the Bank was as mentioned in the letter.
Till March.
1961 the correctness of the entries in the pass sheets and half yearly statements was not questioned by the plaintiff.
The accounts of the plaintiff company were being audited as required by the Companies Act by Chartered Accountants.
The Bank contended that if there was mis appropriation of an amount of nearly Rs.3 lacs by forged cheques by the second defendant this would have been detected by the Chartered Accountants and would have come to the notice of the plaintiff company.
The several entries in the books of account maintained by the plaintiff company show that all the amounts covered by the cheques in dispute had been credited in the books.
The Managing Director of the plaintiff company himself admitted that he had received the periodical statements and that he did not at any time intimate the Bank about the incorrect ness either in the pass sheets or in the letters.
The inac tion on the part of the plaintiff company and its Managing Director in not informing the Bank of the irregularities in the account and deliberately withholding such information from the Bank, according to the Bank.
constituted negli gence.
disentitling the plaintiff from claiming any amount from the Bank in respect of forged cheques.
Alternatively it was contended that the principle of estoppel operated against the plaintiff from claiming the amount, on the ground of adoption or acquiescence.
The case of the appellant can be summarised as follows: After reasonable opportunities are given to the customer to examine the Bank statements.
its debit entries should be deemed to be final and will not be open for reconstruction to the detriment of the bank.
Of course.
what is a reasona ble opportunity will depend on the facts of each case.
In law, there can always be a settled or stated account between the banker and the customer.
The question to be decided here is whether acceptance by the customer without protest of a balance struck in the pass book or statement of account constitutes a settled account.
It is submitted that this aspect of the Banking law has not yet been authorita tively decided by this Court and invited us to pronounce upon it.
On the question of estoppel it was contended that a repre senta 1145 tion may be made either by statement or by conduct: and conduct included negligence, silence, acquiescence or en couragement.
If a customer of a bank, by his negligence to give timely information of forged cheques, allows amount to be drawn on such cheques.
the debit will stand for the whole amount and the customer will be estopped from claiming the amount.
If timely information was given, the Bank could have acted to ward off the mischief.
It was further contended that inaction for a long period would amount to such negligence, as would persuade a Court to impute to the customer, with knowledge or at any rate constructive knowledge, to decline him, relief in an action for recovery of amounts, which would be to the detriment of an innocent party, namely the Bank.
For this purpose.
dictionary meanings of the word 'know ledge was brought to our notice.
"Knowledge may include not only actual knowledge, i.e. actual awareness of the facts relevant.
but constructive knowledge.
i.e. knowledge at tributed by law to the party in the circumstances, whether he actually had the knowledge or not, and knowledge may be attributed to a person who has sought to avoid finding out, or has shut his eyes to obvious means of knowledge.
e.g. the man who is offered valuables cheaply in circumstances which suggest that they may well have been stolen.
but who refrains from enquiry".
Black 's Law Dictionary Fifth Edn. defines.
"Constructive knowledge" as "If one by exercise of reasonable care would have known a fact.
he is deemed to have had costructive knowledge of such fact, e.g., matters of public record".
"Notice" means "bringing it to a person 's knowledge".
Then he referred us to the Transfer of Property Act.
Trusts Act, Law of Agency.
etc. to contend that a person is said to have noticed of a fact when but for wilful absten tion from an enquiry.
he would have known it and that in equity a man who ought to have known a fact should be treat ed as if he actually does know it.
He then developed his submission as follows: It is accepted to be a duty of customer who knows that his cheques are being forged, to inform the bank.
If he fails to give such an information, he is estopped from claiming that the cheques were forged.
In law.
there should be no differ 1146 ence in the consequence between a person having constructive knowledge and a person having actual knowledge.
Thus a person having constructive knowledge of a matter.
cannot be allowed to take advantage of his own negli gence.
According to him the terms of contract between a banker and its customer can never be complete unless there is an implied condition that the customer was under a duty to examine the statement to account, particularly when the bank issues a notice that if no errors are pointed out within a specified time.
the bank will proceed to believe that there are no errors.
Such a notice imposes on a customer a duty to react and failure to react would amount to negligence, leading to estoppel.
The company 's Balance Sheet for four years clearly show that the auditors have examined the books and vouchers.
It is in evidence (spoken to by PW 8) that the balance sheets were adopted by the general bodies for four successive years.
This shows that the statements of account.
given by the Bank was accepted as such.
There is a duty on the part of the Company 's directors to present a correct Balance Sheet.
Negligence to verify the obvious things.
like examining the counterfoil of cheques amounts not only to estoppel but to adoption and ratifica tion.
for, no one can take shelter under one 's own failure to examine the obvious.
Further, the annual reports are to be treated as public documents and public are likely to rely upon its representation and defendant bank is, at any rate, a member of the public.
We have set out above, the contentions of the appellant, in detail, so as to bring into focus, the questions of law to be decided in the appeal.
Now we propose to consider the submissions made by the appellant to test their validity qua the Banking Law, ap plicable to India.
It is true that there is no direct au thority of this Court on this Branch of the Law.
It is.
therefore, necessary to briefly outline the confines of this Branch of law.
The relationship between the customer of a bank and the bank is that of a creditor and debtor.
When a cheque which presented for encashment contains a forged signature the bank has no authority to make payment against such a cheque.
The bank would be acting 1147 against law in debiting the customer with the amounts cov ered by such cheques.
When a customer demands payment for the amount covered by such cheques.
the bank would be liable to pay the amount to the customer.
The bank can succeed in denying payment only when it establishes that the customer is disentitled to make a claim either on account of adop tion.
estoppel or ratification.
The principle of law regard ing this aspect is as follows: When a cheque duly signed by a customer is presented before a bank with whom he has an account there is a mandate on the bank to pay the amount covered by.
the cheque.
However.
if the signature on the cheque is not genuine.
there is no mandate on the bank to pay.
The bank, when it makes payment on such a cheque, cannot resist the claim of the customer with the defence of negligence on his part such as leaving the cheque book carelessly so that third parties would easily get hold of it.
This is because a document in cheque form, on which the customer 's name as drawer is forged, is a mere nullity.
The bank can succeed only when it establishes adoption or estoppel.
The relationship between a bank and its customers indi rectly arose before this Court in Bihta Co operative Devel opment Cane Marketing Union Ltd. & Anr.
vs The Bank of Bihar & Ors., ; In that case a suit was filed by a Society registered under the Bihar and Orissa Co operative Societies Act, 1935, and its Secretary.
This Society had an account with the first defendant Bank.
The and 7th defend ants were respectively its Joint Secretary and Treasurer.
A sum of Rs.11,000 was withdrawn from the account by means of a cheque, not from the cheque book of the Society, but from a loose cheque leaf surrendered by an ex constitutent of the bank.
It bore the signature of the 7th defendant but the forged signature of the 6th defendant.
The suit against the bank, its manager and other employees was decreed by the Trial Court and confirmed by the High Court on the question relevant for our purpose but dismissed on the ground juris diction.
The question before us in this appeal was consid ered by this Court with reference to a Judgment of the House of Lords in London Joint Stock Bank Ltd. vs Macmillan, It was argued before this Court that the decree against the bank could not be sustained since even though there was negligence on the part of the bank and its employees, the plaintiffs ' Society was not altogether free from blame or negligence in that but for the part played by at least one 1148 of its employees in the matter of encashment of the cheque for Rs.11,000 the fraud could not have been perpetrated.
It was also argued that if both the parties were negligent or blameworthy.
the plaintiffs claim ought not to succeed.
It was, in this connection that Macmillan 's case fell for reference.
Being a landmark case, we would set out the facts of that case in brief: The plaintiffs, Macmillan etc.
brought a suit against the London Stock Bank for a declaration that the bank was not entitled to debit the plaintiffs with a cheque for pound 120.
The plaintiffs had in their employment a confidential clerk who made out cheques and got the signature of part ners.
On a certain day.
the clerk made out a cheque for pound 2 and asked one of the partners to sign it, which the partner did.
The next day the clerk did not turn up.
The partners became suspicious and went to the bank.
when they discovered that the cheque for pound.
2 was distorted by using the space on either side of the figure '2 ' by the clerk by insertion of additional figures 1 & 0 and thus he pocketed pound.
The question before the House of Lords was whether the plaintiffs had been so negligent with regard to the cheque that their action against the bank should fail.
The Trial Judge found that the plaintiffs were not guilty of negligence in the mode of signing the cheque and decreed the suit.
The Court of Appeal upheld this decision.
The House of Lords reversed the judgment.
We may usefully quote the following passages from the Judgment.
Lord Finlay observed: "As the customer and the banker are under a contractual relation in this matter.
it ap pears obvious that in drawing a cheque the customer is bound to take usual and reasonable precautions to prevent forgery.
Crime, is indeed, a very serious matter, but every one knows that crime is not uncommon.
If the cheque is drawn in such a way as to facilitate or almost invite an increase in the amount by forgery if the cheque should get into the hands of a dishonest person, forgery is not a remote but a very natural consequence of negligence of this description.
" The learned Lord Chancellor further observed: Of course the negligence must be in the trans action itself, that is, in the manner in which the cheque is drawn.
It would be no defence to the banker, if the forgery had been that of a clerk of a customer, that the latter had taken the clerk into his service without sufficient inquiry as to his 1149 character.
Attempts have often been made to extend the principle of Young vs Grote, ; beyond the case of negligence in the immediate transaction, but they have always failed.
According to the learned Lord Chancellor, leaving blank spaces on either side of the figure '2 ' in the cheque amounted to a clear breach of duty which the customer owed to the banker.
The learned Lord Chancellor said: "If the customer chooses to dispense with ordinary precautions because he has complete faith in his clerk 's honesty, he cannot claim to throw upon the banker the loss which re sults.
No one can be certain of preventing forgery, but it is a very simple thing in drawing a cheque to take reasonable and ordi nary precautions against forgery.
If owing to the neglect of such precautions it is put into the power of any 'dishonest person to increase the amount by forgery, the customer must bear the loss as between himself and the banker.
" The principles so settled by the House of Lords was pressed into service before this Court in the above case.
This Court held that the principle settled by the House of Lords could not help the bank.
The accepted principle that if the signatures on the cheque is genuine, there is a mandate by the customer to the bank to pay was reiterated.
It was also held that if an unauthorised person got hold of such a cheque and encashed it, the bank might have had a good defence hut, however, if the signatures on the cheque or at least one of the signatures are or is not genuine , ' there is no mandate on the bank to pay and the question of any negligence on the part of the customer, such as leaving the cheque book carelessly so that a third party could easily get hold of it would afford no defence to the bank.
This Court distinguished Macmillan 's case, observing that if any of the signatures was forged the question of negligence of the customer in between the signature and the presenta tion of the cheque never arose.
The suit was, however, dismissed on another point and that of jurisdiction.
That takes us to the question as to whether there is a duty on the part of the customer to examine the pass book and inner part of cheques and to communicate to the banker within a reasonable time of the debits which he does not admit.
1150 The kindered question connected with this is whether a customer is estopped from disputing the debits shown in the pass book when the pass book is returned without any comment and whether such a conduct would constitute a "stated and settled account." To answer this it is necessary to examine the question whether the customer owes a duty to the bank to inform it about the correctness or mis statements in the entries in the pass book within a reasonable time and wheth er failure to do so would amount to such negligence as to non suit him in a suit for recovery of the amount paid on a forged cheque.
When does negligence constitute estoppel ? For negligence to constitute an estoppel it is necessary to imply the existence of some duty which the patty against whom estoppel is alleged owes to the other party.
There is a duty of sorts on the part of the customer to inform the bank of the irregularities when he comes to know of it.
But by mere negligence One cannot presume that there has been a breach of duty by the customer to the bank.
The customer should not by his conduct facilitate payment .of money on forged cheques.
In the absence of such circumstances, mere negligence will not prevent a customer from successfully suing the bank for recovery of the amount.
A case of acquiescence also cannot be flourished against the plaintiff.
In order to sustain a plea of acquiescence, it is necessary to prove that the party against whom the said plea is raised, had remained silent about the matter regarding which the plea of acquiescence is raised, even after knowing the truth of the matter.
As indicated above, the plaintiff did not, during the relevant period, when these 42 cheques were encashed, know anything about the sinister design of the second defendant.
If the bank had proved to the satisfaction of the Court that the plaintiff had with full knowledge acknowledged the correctness of the accounts for the relevant period, a case of acquiescence against the plaintiff would be available to the bank.
That is not the case here.
In this judgment under appeal, the High Court has elabo rately considered the law obtaining in the United States of America on this aspect.
We need not exercise ourselves with the American Law since the American Law is different from the law that we follow.
On the questions involved in this appeal, it is the .law that obtains in England which had been followed by this Court and High Courts in the country.
The authorities in England have more or less consistently held that there is no duty on the part of the customer to intimate the banker about any error that may be seen in the pass book and that he will be entitled to claim any amount paid on a forged cheque though there may be some negligence or in action on his part in not being careful to 1151 discover the errors in the pass book or other documents.
In the instant ease, there is no evidence to show that anyone other than the second defendant knew that the forged cheques had been encashed.
After the matter was discovered, immedi ate action was taken.
Therefore, in the absence of any evidence of the plaintiff 's involvement, the plaintiff cannot be nonsuited on the ground of negligence or in ac tion.
Venkatramiah, J when he rendered the Judgment, under appeal, laid down the law correctly, with the aid of author ities then available and on his own reasons.
Now we are in a more advantageous position.
We have an authority, more or less identical on facts, rendered by the Privy Council in the decision in Tai Hing Cotton Ltd. vs Liu Chong Bank, [1985] 2 All England Reports 947.
The facts of this case are similar to the case on hand; if anything, more to the disadvantage to the bank in terms of money involved than the instant case.
The appellant before the Privy Council was a company, a textile manufac turer carrying on business in Hong Kong.
The company was a customer of the three respondent banks and maintained with each of them a current account.
The banks were authorised to pay cheques on behalf of the company if signed by its Manag ing Director or two authorised signatories.
The banks agreed to send the appellant periodic statements which were deemed to be confirmed unless the customer notified the bank of any error therein by a specified time.
Between 1972 and 1978 the accounts clerk employed by the company forged the signature of the Managing Director on 300 cheques purported to be drawn by the company for a total sum of $HK.5.5 million.
The banks paid the cheques on presentation by the clerk and debited the company 's current account accordingly.
The clerk was able to manipulate the accounts without any obstruction or discovery because he was in almost sole control of the receipts and payments made through the accounts.
As in this case, the fraud was uncovered in May, 1978, when a newly appointed accountant commenced reconciling the bank state ments with the company 's books.
This was an exercise which had not been followed previously.
The new accountant found at once that something was seriously wrong.
He reported the matter to the Managing Director.
The errant accountant was interrogated and he admitted the frauds.
The company took action against the banks, the accountant and his wife.
The Trial Judge basing his decision on the fundamental premise that a forged cheque is no mandate to pay held that unless the bank established affirmatively that they were entitled to debit the customers current account with the amounts of the forged cheques, the customer was entitled to the relief 1152 of the loss arising from the bank 's payment on the forged cheques.
A case was put forward before the Trial Judge that the Company was vicariously liable for the fraud played by its accountant.
This was negatived and was not pursued.
The Trial Judge also rejected the submission of the banks that their terms of business which was contractual called the banking contract, should be construed as ousting the common law rule.
The defence included one of estoppel raised by each of the banks.
The plea of estoppel was put forward in two ways; first, that the company was estopped by its negli gence in the management of its bank accounts from asserting that the accounts had been wrongly debited, and second, that the company was estopped by a representation to be implied from the course of conduct that the periodic bank statements were correct.
The Trial Judge rejected the plea of estoppel by negligence but held: " . .
In the case of each bank the company by failing to .
challenge the debits shown on the bank statements, had represented to each bank that the debits had been correctly made.
He held that Tokyo and Chekiang had acted in reliance on the representations so made by their willingness to continue operating their respective accounts and to expose themselves to the risk of paying out on forged cheques.
He did not find the same prejudice had been suffered by Liu Chong Hing as it only became exposed to the fraud in November 1977, the first representation to it not being made until the company 's failure.
to query the December 1977 statement of account.
The Judge found that the chance of recovery from Leung had not been substantially diminished during the period (December 1977 to May 1978) during which it could be said that the estoppel was operative.
" On this finding the Judge gave the company Judgment against one bank, but dismissed its claims against the other two banks.
The company appealed and the defeated banks cross appealed.
The Court of appeal differed from the Trial Judge on the general question.
The Court of appeal evolved a theory that the banker/customer relationship is such as to give rise to a general duty of care in the operation of its banking account and on this basis held that the company was in breach of the duty which they held, it owed to the banks and must bear the loss.
According to the Court of appeal this duty arose in tort as well as in contract.
There was difference of opinion among the Judges as to whether the in action on the part of the customer in not objecting 1153 to the statement sent by the bank within the time specified would constitute conclusive evidence of the correctness of the debits recorded therein or whether the banking contracts could be construed as including a term requiring the monthly statements to be treated after a period of time as conclu sive evidence of the state of the account.
But all of them were agreed that estoppel operated against the company by its own negligence from challenging the correctness of the banks statements.
The banks thus succeeded in the Court of appeal.
The defeated company moved the Judicial Committee of the Privy Council by filing appeals.
This was how the matter reached the Privy Council.
The Privy Council had to decide the case in the light of the law settled by the House of Lords in the Macmillan 's case and in Greenwood vs Martins Bank Ltd.; = 1932 All England Reports 3 18.
The Privy Council posed two questions before it, first, whether English law recognises any duty of care owed by the customer to his bank in the operation of a current account beyond, first, a duty to refrain from drawing a cheque in such a manner as may facil itate fraud or forgery and, second, a duty to inform the bank of any forgery of cheque purportedly drawn on the account as soon as he, the customer, becomes aware of it.
The respondent banks while recognising the existence of both the duties indicated above contended that the law had evolved in England after 19 18 and 1933 in recognising an altogether wider duty of care.
This duty, according to them, required the customer to take reasonable precautions in the management of his business with the bank to prevent forged cheques being presented to it for payment.
Additionally, it was contended.
that even if this wider duty did not exist.
at any rate the customer owed a duty to take such steps to check the periodic bank statements sent to him as a reasona ble person in his pOsition would take to enable him to notify the bank of any debit items in the account which he had not authorised, When it is accepted that the bank sent periodic statements to the customer, the bank contended that the duty and responsibility to look into such statements and to notify to the bank were necessary incidents of the con tractual relationship between the customer and the bank.
The source of this obligation according to the banks is to be found both in the contract law as an implied term of the banking contract and in the tort law as a civil obligation arising from the relationship of banker and customer.
Then the Privy Council proceeded to consider the weightier sub 1154 missions advanced by the bank (1) a wider duty on the part of the customer to act with diligence which must be implied into the contract and alternatively that such a duty arises in tort from the relationship between banker and customer.
The Privy Council parted company with the observation by the Court of Appeal here and repelled the plea that it was necessary to imply into a contract between a banker and the customer a wider duty and that it was not a necessary inci dent of banker customer relationship that the customer should owe his banker a wider duty of care.
This duty is in the form of an undertaking by the customer to exercise reasonable care in executing his written orders so as not to mis lead the bank or to facilitate forgery.
The Privy Coun cil accepted that an obligation should be read into the contract as the nature of this contract implicity requires.
In other words 'the term sought to be implied must be one without which the whole 'transaction would become futile and inefficacious. ' After referring to some earlier decisions, the Privy Council rejected the implied term 'submission ' and set out the limits of the care of the customer and the functions of the banks in the following words: " .
One can fully understand the com ment of Cons JA that the banks must today look for protection.
So be it.
They can increase the severity of their terms of business and they can use their influence as they have in the past, to seek to persuade the legislature that they should be granted by statute 'fur ther protection.
But it does not follow that because they may need protection as their business expands the necessary incidents of their relationship with their customer must also change.
The business of banking is the business not of the customer but of the bank.
They offer a service, which is to honour their customer 's cheques when drawn on an account in credit or within an agreed overdraft limit.
If they pay out on cheques which are not his, they are acting outside their mandate and cannot plead his authority in justification of their debit to his account.
This is a risk of the service which it is their business to offer.
The limits set to the risk in the Macmillan and Greenwood cases can be seen to be plainly necessary incidents of the relationshi p. Offered such a service, a customer must obviously take care in the way he draws his cheque, and must obviously warn his bank as soon as he knows that a forger is operating the account . . " The limits of the duty and the confines of contractual obligation cannot be expressed better.
1155 On the question of tort also the bank could not satisfy the Privy Council as is seen from the following observation: "Their Lordships do not believe that there is anything to the advantage of the law 's development in searching for a liability in tort where the parties are in a contractual relationship.
This is particularly so in a commercial rela tionship.
Though it is possible as a matter of legal seman tics to conduct an analysis of the rights and duties inher ent in some contractual relationships including that of a banker and customer either as a matter of contract law when the question will be what.
if any.
terms are to be implied or as a matter of tort law when the task will be to identify a duty arising from the proximity and character of the relationship between the parties.
their Lordships believe it to be correct in principle and necessary for the avoidance of confusion in the law to adhere to the contractual analy sis on principle because it is a relationship in which the parties have.
subject to a few exceptions, the right to determine their obligations to each other.
and for the avoidance of confusion because different consequences do follow according to whether liability arises from contract or tort, e.g. in the limitation of action . " Their Lordships of the Privy Council sumed up the Law, as followers: 'Their Lordships do not, therefore, embark on an investiga tion whether in the relationship of banker and customer it is possible to identify tort as well as contract as a source of the obligations owed by the one to the other.
Their Lordships do not, however, accept that the parties ' mutual obligations in tort can be any greater than those to be found expressly or by necessary implication in their con tract.
If, therefore, as their Lordships have concluded, no duty wider than that recognised in Macmillan and Greenwood can be implied into the banking contract in the absence of express terms to that effect, the respondent banks cannot rely on the law of tort to provide them with greater protec tion than that for which they have contracted.
Having rejected the plea of implied terms, indirectly con structive 1156 notice and estoppel by negligence, it was held that the company was not under any breach of duty owed by it to the banks and as such mere silence, omission or failure to act is not a sufficient ground to establish a case in favour of the bank to non suit its customer.
We adopt the reasoning indicated above with great re spect.
Unless the bank is able to satisfy the Court of either an express condition in the contract with its custom er or an unequivocal ratification it will not be possible to save the bank from its liability.
The banks do business for their benefit.
Customers also get some benefit.
If banks are to insist upon extreme care by the customers in minutely looking into the pass book and the statements sent by them, no bank perhaps can do profitable business.
It is common knowledge that the entries in the pass books and the state ments of account sent by the bank are either not readable, decipherable or legible.
There is always an element of trust between the bank and its customer.
The bank 's business depends upon this trust.
Whenever a cheque purporting to be by a customer is presented before a bank it carries a man date to the bank to pay.
If a cheque is forged there is no such mandate.
The bank can escape liability only if it can establish knowledge to the customer of the forgery in the cheques.
In action for continuously long period cannot by itself afford a satisfactory ground for the bank to escape the liability.
The plaintiff in this case swung into action immediately on the discovery of the fraud committed by its accountant as in the case before the Privy Council.
We may, in passing.
refer to a decision of this court on the question of negligence under circumstances not strictly akin to the case on hand reported in the New Marine Coal Co. (Bengal) Pvt. Ltd. vs Union of India, ; There the suit was for recovery of certain amount represent ing the price of coal supplied to the respondent.
Inter alia the respondent pleaded in defence of the suit that the respondent had issued and sent bills to cover the amount and the intimation cards in accordance with the usual practice in the ordinary course of dealings.
The respondents it was alleged paid the amount by cheque to a person authorised by the appellant and on presentation of proper receipts.
It was pleaded that the appellant 's claim having been satisfied he had no cause of action.
It was established in the course of the trial that the appellant had not in fact authorised any person to issue the receipts but a certain person not con nected with the appellant firm without the consent or knowl edge of the appellant got hold of the intimation cards and bills addressed to the appellant.
forged the documents and fraudulently received the cheque from the respondent and 1157 appropriated the amount for himself.
We may usefully read the following passage relating to negligence in the context of a plea based on estoppel: ". .
Apart from, this aspect of the matter, there is another serious objection which has been taken by Mr. Setalved against the view which prevailed with Mukharji J. He argues that when a plea of estoppel on the ground of negligence is raised, negligence to which reference is made in support of such a plea is not the negligence as is understood in popu lar language or in common sense; it has a technical denota tion.
In support of a plea of estoppel on the ground of negligence.
it must be shown that the party against whom the plea is raised owed a duty to the party who raises the plea.
Just as estoppel can be pleaded on the ground of misrepre sentation or act or omission.
so can estoppel be pleaded on the ground of negligence; but before such a plea can suc ceed, negligence must be established in this technical sense.
As Halsbury has observed: 'before anyone can be estopped by a representation inferred from negligent con duct.
there must be a duty to use due care towards the party misled, or towards the general public of which he is one. ' There is another requirement which has to be proved before a plea of estoppel on the ground of negligence can be upheld and that requirement is that 'the negligence on which it is based should not be indirectly or remotely connected with the misleading effect assigned to it, but must be the proxi mate or real cause of that result. ' Negligence.
according to Halsbury, which can sustain a plea of estoppel must be in the transaction itself and it should be so connected with the result to which it led that it is impossible to treat the two separately.
This aspect of the matter has not been duly examined by Mukharji.
J. when he made his finding against the appellant.
" This is how this Court understood how a plea of estoppel based on negligence can be successfully put forward.
We have seen that there is no duty for a customer to inform the bank of fraud committed on him.
of which he was unaware.
Nor can in action for a reasonably long time in not discovering fraud or irregularity be made a defence to defeat a customer in an action for loss.
Thus the contentions put for 1158 ward by the bank cannot be accepted to defeat the plaintiff.
The various submissions made by the counsel for the bank based on constructive notice in the general law and on other branches of law cannot be extended to relationship between a bank and its customers.
On a careful analysis of the questions of law, we hold that the judgment of the High Court and that of the Trial Judge have to be upheld.
We do so.
We accordingly dismiss the appeal with costs of the 1st respondent.
N.P.V. Appeal dis missed.
|
The respondent company had a current account with the lant bank in its Mangalore Builder Branch.
The Manag ing Director of the company and the General Manager of a sister concern of the company had been authorised to operate the said current account.
The second defendant was attending to the maintenance of accounts of the respondent company and was also in charge and had the custody of the cheque book issued by the Bank to the respondent company.
During the process of bringing the accounts upto date certain irregu larities were noticed in the account and on verification it was found that cheques purporting to bear the signature of the Managing Director were encashed, though they did not bear 'his signature.
A complaint was lodged by the respond ent Company with the police and a special audit of the company 's accounts for the years 1957 58 to 1960 61 by a firm of Chartered Accountants disclosed that the second defendant had withdrawn a sum of Rs.3,26.047.92 under 42 cheques.
A suit was filed for the recovery of the said amount on the plea that the amounts as per the forged cheques were not utilised for the purpose of the respondent company.
that they were not authorised ones.
that there was no acquiescence or ratification open or tacit on the part of the respondent company and that the respondent was unaware of the fraud till the new accountant discovered it.
The appellant bank resisted the suit on the grounds (1) that the cheques were not forged ones; (2) that even if they were forged ones.
the company was not entitled to recover the amount on account of its own 1139 negligence; (3) that there was settlement of accounts be tween the parties from time to time and as such.
the company was not entitled to reopen the same and claim the sums paid under the cheques; and (4) that the suit was barred by limitation.
The second defendant pleaded that the cheques were utilised for the purpose of the company.
The trial Court negatived the contentions of the bank and passed a decree for the sum claimed with interest at 6%.
In appeal the Division Bench confirmed the judgment of the trial court but as the case involved substantial ques tions of law of general public importance it granted a certificate to file the appeal.
In the appeal before this Court it was contended on behalf of the appellant that: (1) after reasonable opportu nities are given to the customer to examine the bank state ments, its debit entries should be deemed to be final and will not be open for reconstruction to the detriment of the bank; (2) a representation may be made either by statement or by conduct, and conduct included negligence, silence, acquiescence or encouragement, and if a customer of a bank, by his negligence, to give timely information of forged cheques, allows amount to be drawn on such cheques.
the debit will stand for the whole amount and the consumer will be estopped from claiming the amount; and (3) in action for a long period would amount to such negligence as would persuade a court to impute to the customer with knowledge or at any rate constructive knowledge,_to decline him relief in an action for recovery of amounts which would be to the detriment of an innocent party, namely, the bank.
Dismissing the appeal.
HELD: 1.
When a cheque duly signed by a customer is presented before a bank with whom he has an account there is a mandate on the bank to pay the amount covered by the cheque.
However.
if the signature on the cheque is not genuine.
there is no mandate on the bank to pay.
The bank.
when it makes payment on such a cheque, cannot resist the claim of the customer with the defence of negligence on his part such as leaving the cheque book carelessly so that third parties would easily get hold of it.
This is because a document in cheque form.
on which the customer 's name as drawer is forged.
is a mere nullity.
[1147B D] 2.
The relationship between the customer of a bank and the bank is that of a creditor and debtor.
When a cheque presented for encashment contains a forged signature the bank has no authority to make payment against such a cheque.
The bank would be acting against law 1140 in debiting the customer with the amounts covered by such cheques.
When a customer demands payment for the amount covered by such cheques, the bank would be liable to pay the payment to the customer.
The bank can succeed in denying payment only when it establishes that the customer is disen titled to make a claim either on account of adoption, estop pel or ratification.
[1146G H; 1147A B] For negligence to constitute an estoppel.
it is neces sary to imply the existence of some duty which the party against whom estoppel is alleged owes to the other party.
There is a duty of sorts on the part of the customer to inform the bank of the irregularities when he comes to know of it.
But by mere negligence.
one cannot presume that there has been a breach of duty by the customer to the bank.
The customer should not by his conduct facilitate payment of money on forged cheques.
In the absence of such circum stances.
mere negligence will not prevent a customer from successfully suing the bank for recovery of the amount.
[1150B D] 4.
In order to sustain a plea of acquiescence, it is necessary to prove that the party against whom the said plea is raised.
had remained silent about the matter regarding which the plea of acquiescence is raised.
even after knowing the truth of the matter.
[1150D E] 5.
There is no duty for a customer to inform the bank of a fraud committed on him, of which he was unaware.
Nor can in action for a reasonably long time in not discovering fraud or irregularity be made a defence to defeat a customer in an action for loss.
[1157G H] 6.
There is no duty on the part of the customer to intimate the banker about any error that may be seen in the pass book and he will be entitled to claim any amount paid on a forged cheque though there may be some negligence or in action on his part in not being careful to discover the errors in the pass book or other documents.
Banks do business for their benefit.
Customers also get some benefit.
If banks are to insist upon extreme care by the customers in minutely looking into the pass book and the statements sent by them, no bank perhaps can do profita ble business.
It is common knowledge that the entries in the pass books and the statements of account sent by the bank are either not readable.
decipherable or legible.
There is always an element of trust between the bank and its custom er.
The bank 's business depends upon this trust.
[1156B D] 1141 8.
Whenever a cheque purporting to be by a customer is presented before a bank it carries a mandate to the bank to pay.
If a cheque is forged there is no such mandate.
The bank can escape liability only if it can establish knowledge to the customer of the forgery in the cheques.
In action for continuously long period cannot by itself afford a satisfac tory ground for the bank to escape the liability.
[1156D E] 9.
In the present case.
during the relevant period when 42 cheques were encashed, the company did not know anything about the sinister design of the second defendant.
Since the bank had not proved to the satisfaction of the court that the company had with full knowledge acknowledged the cor rectness of the accounts for the relevant period the case of acquiescence cannot be flourished against the company.
There is no evidence to show that any one other than the second defendant knew that the forged cheques had been encashed.
After the matter was discovered immediate action was taken.
Therefore, in the absence of any evidence of the respondent company 's involvement.
it cannot be non suited on the ground of negligence or in action.
Unless the bank is able to satisfy the court of either an express condition in the contract with its customer or an unequivocal ratifica tion it will not be possible to save the bank from its liability.
[1150E F; 1151A B; 1156B] Bihta Co operative Development Cane Marketing Union Ltd. Joint Stock Bank Ltd. vs Macmillan, ; Tai Hing Cotton Ltd. vs Liu Chong Bank, [1985] 2 All England Reports 947; Greenwood vs Martins Bank Ltd., = [1932] All England Reports 318; and New Marine Coal Co. (Bengal) Pvt. Ltd. vs Union of India, ; , referred to.
|
Special Leave Petition (Civil) No. 7508 of 1988.
From the Judgment and order dated 28.6.1988 of the Bombay High Court in Civil Writ Petition No. 800 of 1988.
728 S.N. Kacker, U.R. Lalit, V.D. Joshi, B.D. Joshi, S.C. Bora and Kailash Vasdev for the Petitioner.
Dr. Y.S. Chitale, V.A. Bobde, V.J. Francis, N.M. Popli and Miss Almjit Chauhan for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This special leave petition is directed against the judgment and order of the High Court of Bombay dated June 28, 1988 upholding the election of respondents nos.
1 and 2 Dr. Shantaram Kale and Takiqui Hassan as Mayor and Deputy Mayor respectively, and respondents nos.
3 8 as Members of the Standing Committee at the first meeting of the Aurangabad Municipal Corporation at the Alankar Hall, held on May 6, 1988 at 2 p.m.
The issue involved is whether the first meeting of the Corporation called for that day at 2.45 p.m. by the Municipal Commissioner, respondent No. 9, who presided over the meeting, was adjourned for the day or adjourned sine die and therefore had to be called on some subsequent date to be fixed by him and thus necessitated the giving of seven days ' clear notice as required by r. 1(h), Chapter II of the Rules framed under section 453 of the Bombay Provincial Municipal Corporation Act, 1949.
Since the question involved was a matter of moment and the affidavits filed by the petitioner Chandrakant Khaire, the leader of the Shiv Sena Party which is the largest single group in the Corporation consisting of 18 Concillors, and by some of the Councillors as well as their supporters, and the affidavits in opposition filed by the Party in power Congress I which has formed a coalition with the splinter groups commanding a majority of 32 Councillors in a House of 60, raise controverted facts as to whether the proceedings of the meeting had been adjourned sine die or merely suspended, we thought it better to have the minutes of the proceedings before us.
Shri Vinod Bobde, learned counsel appearing for the Municipal Commissioner has placed the minute books written in Marathi along with a translation thereof in English.
At the last occasion we were left with the impression that the word used by the Municipal Commissioner was 'tahkub ' while adjourning the meeting at 2.45 p.m. amidst unprecedented scenes of complete disorder, commotion and pendemonium.
We now find the word used in the minutes is 'sthagit ' but in the translation furnished the word used is 'adjourned '.
The facts revealed in the counter affidavits filed by the Munici 729 pal Commissioner, Collector and the Superintendent of Police show that a serious law and order situation had arisen due to which both the Collector and the Superintendent of Police had to rush to the venue of the meeting.
They both have sworn to the fact that not only the Councillors but many outsiders were present in the hall where the meeting was being held.
There were also a large number of supporters of the rival parties, spectators and journalists.
The Municipal Commissioner was surrounded by some 20 25 persons apart from the Councillors, one group insisting upon the meeting being adjourned for the day i.e. the Councillors belonging to the majority Shiv Sena Party while the other group consisting of the Congress I Party and the splinter groups forming the coalition demanding that the meeting be continued.
The Collector has sworn to the fact that there was 'total confusion and bedlam inside the hall apart from the fact that the entire atmosphere was surcharged with commotion ' and no business could be transacted.
He has further sworn to the fact that respondent No. 9, the Municipal Commissioner, the presiding officer, appeared to be 'in a very agitated state of mind ' and told him that he could not hold the meeting in the unruly and disorderly situation prevailing and complained that despite his repeated requests to the Councillors to maintain peace, it had no effect and they kept on shouting, raising slogans and fighting amongst themselves and thereby making it impossible for him to transact any business.
The meeting was scheduled to be held at 2 p.m. and respondent No. 9 announced that the polling for the offices of Mayor, Deputy Mayor and Members of the Standing Committee would commence from 2.30 p.m. onwards.
What happened thereafter reveals a very disturbing feature which unfortunately has become too common these days and shows the strain through which our democratic system is passing.
At about 2.30 p.m. some of the Councillors belonging to the Shiv Sena Party sat on the ballot boxes and others belonging to that Party and its supporters surrounded the Municipal Commissioner demanding that the meeting be adjourned to a subsequent date.
Thereupon, the Councillors belonging to the Party in power i.e. Congress I, started shouting at him that the meeting be held later on that day, being apprehensive that if the meeting were to be adjourned, they might lose the contest.
There followed shouting of slogans, hurling of abuses and thumping of the tables.
The Councillors belonging to the rival groups then started throwing chairs at each other leading to a pandemonium.
That the fact that not only Councillors but also many outsiders were present in the hall where the meeting was being held who really had no business to be there, is clearly brought out in the affidavits sworn by the Municipal 730 Commissioner, Collector and the Superintendent of Police.
They also show a large number of persons freely entering and leaving the hall.
It is apparent from the affidavit of the Superintendent of Police that during the time when all this happened, Viswasrao Deshmukh, Revenue Minister, Government of Maharashtra came into his office and left the premises while he was actually busy in supervising the bandobust.
We have been shown photographs showing the presence of a large number of policemen wielding lathis inside the hall.
The Collector 's affidavit reveals that the Superintendent of Police personally requested Chagan Bhujbal, a sitting Member of the State Legislative Assembly belonging to the Shiv Sena Party, to keep himself away from the premises of the meeting hall.
Be that as it may, it appears that both the officers asked the outsiders to clear out of the hall, requested the Councillors to take their places so as to permit the Municipal Commissioner to transact the business for the day and brought the situation under control.
They have sworn to the fact that after the Councillors had calmed down and order was restored, both of them left the hall.
Thereafter, the Municipal Commissioner apparently announced on the mike that the meeting would continue and the elections would be held at 4.30 p.m.
The petitioner Chandrakant Khaire being the leader of the Shiv Sena Party, filed a written protest at 4.15 p.m. that the meeting had been adjourned by the Municipal Commissioner for the day and therefore the holding of the meeting later on that day would be improper and illegal.
After this, the Councillors belonging to the opposition group abstained from participating in the meeting held at 4.30 p.m. at which respondents nos.
1 and 2 Dr. Shantaram Kale and Takiqui Hassan were declared elected as Mayor and Deputy Mayor respectively and respondents nos.
3 8 as Members of the Standing Committee, each of them having polled 32 votes.
We had benefit of hearing Shri S.N. Kacker, learned counsel for the petitioner, Dr. Y.S. Chitale, learned counsel appearing for respondents nos.
1 8 and Shri Vinod Bobde, learned counsel appearing for respondent No. 9, the Municipal Commissioner.
After a protracted hearing we at the end of the day reserved orders.
Having given the matter our anxious consideration, we find it difficult to interfere with the judgment of the High Court.
In view of the conflicting affidavits, the petitioner and his supporters asserting that the Municipal Commissioner had adjourned the meeting for the day and respondent No. 2 reiterating the version of the Municipal Commissioner that he had only suspended the proceedings so that the meeting could be held later in the day and the business for 731 the day, namely, election of the Mayor, Deputy Mayor and Members of the Standing Committee, could be transacted, the High Court relying on the 'preponderance of probabilities ' has come to the conclusion that in the facts and circumstances the affidavit of the Municipal Commissioner, respondent No. 9, appeared to be 'more impressive, probable and convincing ' and therefore they were inclined to accept it as 'one inspiring confidence '.
Acting upon the affidavit sworn by respondent No. 9, the Municipal Commissioner, the High Court has found as a fact that the meeting was not adjourned for the day or sine die but it was to be held as soon as peace was restored on the very day i.e. the meeting had only been postponed.
That is an inference drawn from affidavits and we find no just and compelling reasons to upset the same.
Shri S.N. Kacker, learned counsel for the petitioner contends that the High Court erred in proceeding on probabilities in deciding the present matter which has far reaching ramifications affecting the democratic principles.
It is said that the High Court having found that because of unruly and provocative atmosphere prevailing in the meeting hall, the Municipal Commissioner was required to adjourn the meeting in order to restore peace and to re arrange the furniture which was helter skelter as the Councillors, it is stated, threw chairs at each other, erred in taking the view that the meeting was not adjourned for the day or sine die but had merely been suspended when in fact, the business for the day, namely, elections to the offices of Mayor, Deputy Mayor and Members of the Standing Committee, could not obviously be transacted.
He further contended that when the Municipal Commissioner on his own showing had to adjourn the proceedings in view of the prevailing atmosphere and since he felt it was impossible to continue the election process in that situation, it was wrongly held by the High Court that the meeting was not adjourned sine die when the Municipal Commissioner unequivocally admits that such adjournment was necessary to enable him to decide and announce the time for the resumption of the further proceedings.
In substance, the contention is that the meeting was not adjourned to a definite point of time and must therefore be regarded as adjourned for the day or adjourned sine die.
The learned counsel referred to several law dictionaries to bring out the meaning of the expression 'adjourned sine die ' and relied upon the decision of the Calcutta High Court in Smt.
Menaka Bala Dasi vs Hiralal Gobindalal & Anr., and that of the Madhya Pradesh High Court in Sheokumar Shashtri vs Municipal Committee, Rajnandgaon, AIR (1964) MP 195, and also to a passage from Shackleton on the Law & Practice of Meetings, 7th edn.
at p. 44 for the 732 submission that in the case of adjournment sine die, the meeting stands adjourned to an unspecified date and as such a fresh notice calling for the meeting is necessary.
Dr. Y.S. Chitale appearing for respondents nos.
1 8 and Shri Vinod Bobde for respondent No. 9, on the other hand, contended that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2.45 p.m. and the adjourned meeting at 4.30 p.m. was a continuation of the original meeting and no new notice of an adjourned meeting had to be given.
It was contended further that there was no warrant for interference under article 136 of the Constitution since a finding of fact has been reached by the High Court on a consideration of the Material on record.
It was also contended that the petitioner having failed to make good the averment in the writ petition that the meeting had been 'adjourned for the day ', the High Court was justified in declining to interfere.
In order to appreciate the point in controversy, it is necessary to set out the relevant statutory provisions bearing on the question.
It is needless to stress that a Municipal Corporation cannot function without the Mayor, Deputy Mayor and Members of the Standing Committee who are entrusted with certain functions and duties under the Act.
Sub section
(1) of section 19 of the Act provides that 'the Corporation shall at its first meeting after the general elections . . . elect from amongst the Councillors one of its members to be the Mayor and another to be the Deputy Mayor ', their term of office being one year.
Sub section
(2) of section 20 enacts that 'the Corporation shall at its first meeting after the general elections appoint 12 persons out of its own body to be Members of the Standing Committee '.
The term of office of the elected Councillors, as provided by section 6(1), is a period of five years which in terms of sub section (2) is deemed to commence on the date of the first meeting called by the Municipal Commissioner.
The relevant Rules framed under section 453 of the Act relating to the proceedings of the Corporation are as follows: "1(b).
The first meeting of the Corporation after general elections shall be held as early as conveniently may be on a day and at a time and place to be fixed by the Commissioner, and if not held on that day shall be held on some subsequent date to be fixed by the Commissioner." "1(h).
At least seven clear days ' notice shall ordinarily be given of every meeting, other than any adjourned meeting. 733 1(m).
Any meeting may, with the consent of a majority of the councillors present be adjourned from time to time to a later hour on the same day or to any other, but no business shall be transacted and, except as is hereinafter provided, no proposition shall be discussed at any adjourned meeting other than the business or proposition remaining undisposed of at the meeting from which the adjournment took place." "2(3).
The Presiding Officer may in case of grave disorder suspend the meeting for a period not exceeding three days.
" It is therefore quite obvious that the first meeting of the Corporation is of prime importance.
Learned counsel for the parties have agreed that cl.(m) may not govern the first meeting of the Corporation but relates to subsequent meetings.
The question before us is whether the first meeting 'could not be held on that day ' within the meaning of cl.(b) of r. 1 and therefore had to be held 'on some subsequent date to be fixed by the Municipal Commissioner '.
The affidavits on record clearly show that the Municipal Commissioner who presided over the meeting, was constrained to adjourn the meeting at 2.45 p.m. when some of the Councillors belonging to the Shiv Sena Party, of which the petitioner is the leader, went inside the booth and forcibly removed the ballot boxes and sat upon them to prevent casting of any votes, giving rise to commotion and pandemonium.
What actually happened is best stated by the Municipal Commissioner in his affidavit: "As a result there was tremendous confusion, chaos and uproar in the house and there was tremendous noise and nothing could be heard clearly.
I say that there was tremendous tension and the situation was going out of control and it was not possible to conduct the election at the moment of time and therefore I announced that the meeting is adjourned and that the Councillors should restore peace.
I also said that I shall soon announce the time of meeting.
I say that I did not leave the house and remained in the chair of the Presiding Authority hoping that the peace would be restored and I would be able to announce the time of the meeting.
Thereafter Shri Man Mohan Singh 734 Oberoi raised the point of order that the meeting should not be adjourned and that he along with another Councillor Dr. Sancheti insisted that meeting should continue.
At this stage the situation in the house worsened and in fact there was hot exchange of words and shouting between different groups of Councillors.
An attempt was made to throw chairs at each other and in fact the furniture in the house was scattered and several Councillors surrounded me and some spoke in favour of adjournment and some spoke in favour of continuation.
My efforts to restore peace and order were futile, and there was serious law and order situation.
In the circumstances aforesaid there was no alternative and I felt that it was my duty to seek the Police help and I called the Police to restore order.
Thereupon some of the Councillors objected and actually resisted the entry of the Police.
Thereafter on my directives the Police soon left.
Some of the Shiv Sena Councillors were in aggressive mood and they came to my table and violently thumped the table and shouted that they would not allow this meeting to take place.
During this period I even suggested that the Councillors should go out.
This was necessary as I felt that without that the furniture cannot be re arranged and further steps for resuming the meeting will not be possible.
In the meantime the District Magistrate Shri R.R. Sinha and Supdt.
of Police Shri T.C. Wankhede entered the Hall.
S.P. Shri Wankhede appealed the Councillors on the mike to restore peace.
I say that discussions took place between myself and the Dist.
Magistrate with a view to restore the peace.
The Dist.
Magistrate Shri Sinha also appealed to restore peace.
Thereafter the Councillors were calmed down and the order was restored.
On the peace being restored both the District Magistrate and the S.P. left the house at 3.45 p.m.
I announced on the mike that meeting would continue and election would be held at 4.30 p.m." ******* ******* ". in effect the adjournment declared by me as aforesaid amounts to suspension of the meeting because of the grave disorder . " ******* ******* 735 "I also said that I shall soon make an announcement about the time for resuming the meeting.
" ******* ******* "I had to adjourn the proceedings in view of the prevailing circumstances set out hereinabove and since I felt that it was impossible to continue the election process in that situation.
It was also necessary to enable myself to decide and announce the time for the resumption of the further proceedings of the meeting.
" While setting out the facts we have already adverted to the facts sworn by the Collector and the Superintendent of Police.
There is no reason not to act on these affidavits.
The Collector says that 'there was total confusion and bedlam inside the hall ' apart from the fact that 'the entire atmosphere was surcharged with commotion ', and 'the Municipal Commissioner was in a very agitated state of mind and said that he could not hold the meeting in the unruly and disorderly situation prevailing '.
There can be no doubt that such unruly scenes witnessed on that day gave rise to a serious law and order situation but both the Collector and the Superintendent of Police were able to restore order in the House and prevailed upon the outsiders to vacate the meeting hall in order that the proceedings could be resumed.
The fact that the Municipal Commissioner did not leave the House or vacate the seat does lend support to the version that he had merely suspended the proceedings till order was restored.
There is no reason to doubt the affidavit sworn by the Municipal Commissioner that he announced on the mike at 3.45 p.m. that the proceedings would be resumed at 4.30 p.m. for transacting the business for the day.
It is quite obvious that the meeting was not 'adjourned for the day ' or 'adjourned sine die '.
Shri Kacker, learned counsel for the petitioner contended that when the affidavits of the three officers showed that utter confusion prevailed and there was pandemonium all around with strangers moving about in the meeting hall, it must necessarily follow that no business could be transacted on that day.
The contention is that the meeting was not adjourned to a definite point of time and must therefore be regarded as 'adjourned for the day ' or 'adjourned sine die '.
He referred to the decisions in Menaka Bala Dasi and Sheokumar Shashtri, as also to various law dictionaries, besides a passage from Shackleton on the Law and Practice of Meetings, 7th edn.
at p. 44.
On the strength of these authorities, it was submitted that 736 the meeting was adjourned not to a definite point of time and must therefore be regarded as 'adjourned for the day ' or 'adjourned sine die '.
He accordingly submitted that the Municipal Commissioner should have fixed another date for the meeting and issued fresh notice therefor.
We are afraid, we cannot accept this line of reasoning.
According to the ordinary meaning, the expression 'sine die ' as given in Shorter Oxford Dictionary, 3rd edn., vol.
II at p. 2000 means: "Without any day being specified (for reassembling, resumption of business etc.); indefinitely." Similarly, in Webster 's Comprehensive Dictionary, International edn., the meaning given is more or less the same: "Without a day; indefinitely: an adjournment sine die (that is, without setting a day for ressembling).
" The same is the legal meaning.
In Black 's Law Dictionary, Deluxe 4th edn.
at p. 1556, the meaning of the expression sine die is: "Without day; without assigning a day for a further meeting or hearing." The legal meaning given in Jowitt 's Dictionary of English Law, 2nd edn., vol.
II at p. 1663 reads: "Without a day being fixed.
The consideration of a matter is said to be adjourned sine die when it is adjourned without a day being fixed for its resumption.
" The passage in Shackleton at p. 44 on which the learned counsel relies reads: "Adjourned meetings: Notice.
An adjournment, if bona fide, is only a continuation of the meeting and the notice that was given for the first meeting holds good for and includes all the other meetings following up it.
If however the meeting is adjourned sine die, a fresh notice must be given.
No new business can be introduced unless notice of such new business is given.
" 737 There can be no dispute with the proposition but the difficulty is about the applicability of that principle to the facts of the case.
Literally, there is nothing on record to substantiate the petitioner 's submission that the first meeting scheduled to be held on May 6, 1988 at 2 p.m. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. without consideration of the agenda for the day.
On the contrary, it is not in dispute that the business for the day was partly transacted when the Councillors met at 2 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards.
The trouble started at 2.30 p.m. when the Councillors belonging to the petitioner 's Shiv Sena Party prevented the casting of votes by snatching away the ballot boxes from the polling booths and sat upon them.
There was a pre determined plan on their part not to allow the first meeting to be held on that day.
But the Municipal Commissioner did not give way to the commotion and pandemonium and he did not put off the meeting to another day.
In the prevailing situation, the Municipal Commissioner had no other alternative but to adjourn the meeting.
Under the scheme of the Act, when the term of the elected Councillors is a period of five years which in terms of sub section (2) of section 6 of the Act is deemed to commence on the date of the first meeting, the Municipal Commissioner obviously could not adjourn the meeting for another day or adjourn it sine die.
If the contention that the meeting having been adjourned without specifying a definite point of time were to prevail, it would give rise to a serious anomaly.
The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date under section 6(2) of the Act for commencement of the term of the Councillors.
The Municipal Commissioner has unequivocally asserted that he only suspended the proceedings in order that they could be resumed for transaction of the business for the day, and the business for the day had to be transacted on May 6, 1988, the date of the first meeting, as fixed by him.
Admittedly, the Municipal Commissioner did not leave the meeting hall nor vacate his seat.
He showed exemplary courage in not yielding to the threats of violence wielded by the party in opposition, because he knew that in law the first meeting had to be held on that day and could not be adjourned to another day.
There is no reason to disbelieve the Municipal Commissioner that when he adjourned the meeting he simultaneously made an announcement that he would later announce the time when the meeting was to be resumed.
He is candid enough to say that he had to adjourn the proceedings in view of the prevailing situation when he felt that it was impossible to continue the election process hoping that peace would soon be restored and he would be able to announce the time of the 738 meeting.
One of the reasons given for the adjournment was that he adjourned the meeting to enable him to decide and announce the time for the resumption of the further proceedings of the meeting.
Rankin, CJ in Menaka Bala Dasi 's case in repelling the contention that adjournment sine die of an application for making a decree in a mortgage suit final, was a discontinuance of it, observed: "(W)hatever may be the old authorities on that point, I have no doubt myself that with us to day 'adjournment sine die ' differs altogether from discontinuance.
It is after all an adjournment an adjournment to a date that is not at the moment fixed.
" The decision of the Madhya Pradesh High Court in Sheokumar Shasthri 's case relied upon by learned counsel for the petitioner is clearly distinguishable.
In that case, it was admitted that the meeting of the Municipal Committee summoned for January 17, 1962 at which the motion of no confidence was to have been moved was adjourned sine die for want of quorum and the High Court held relying upon the proviso to section 32 of the Madhya Pradesh Municipalities Act, 1961, that a meeting convened for consideration of a no confidence motion could not be adjourned sine die, but had to be adjourned to 'some other day ' for which a fresh notice was necessary, P.V. Dixit, CJ speaking for himself and K.L. Pandey, J. observed: "It is settled law that where there is a power of adjournment and a meeting is adjourned, then the adjourned meeting is a continuation of the original meeting and no new notice of an adjourned meeting need be given unless the relevant statutory provisions or rules so require.
But in the case of an adjournment sine die a fresh notice is necessary, (See: Scadding vs Lorant, ; ; and Wills vs Murray, ; The proviso to section 32 of the C.P. and Berar Municipalities Act, 1922, laid down that: "If at any ordinary or special meeting of the committee a quorum is not present, the Chairman shall adjourn the meeting to such other day as he may think fit . . " Under this proviso, a meeting could be adjouned to some fixed date and not sine die.
" 739 The decision in Sheokumar Shashtri is therefore of no avail.
Shackleton on the Law & Practice of Meetings, 7th edn.
apart from the passage at p. 44 already quoted, gives the different shades of meaning of adjournment as understood in legal parlance, in the following words: "Adjournment is the act is postponing a meeting of any private or public body or any business until another time, or indefinitely, in which case it is an adjournment sine die.
The word applies also to the period during which the meeting or business stands adjourned.
An Adjournment may be: 1.
For an interval expiring on the day of the adjournment.
For an interval expiring on some later date.
For an indefinite time (i.e. sine die).
Until a fixed time and date.
To another place.
" The learned author then sets out the different causes giving rise to an adjournment which may be by (1) Resolution of the meeting.
(2) Action of the chairman, and (3) Failure to achieve or maintain a quorum.
A properly convened meeting cannot be postponed.
The proper course to adopt is to hold the meeting as originally intended, and then and there adjourn it to a more suitable date.
If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat.
Even if the relevant rules do not give the chairman power to adjourn the meeting, he may do so in the event of disorder.
Such an adjournment must be for no longer than the chairman considers necessary and the chairman must, so far as possible, communicate his decision to those present.
The law relating to adjournment has been put succinctly in Horsley 's Meetings Procedure, Law and Practice, 2nd edn., edt.
by W. John Taggart at p. 84, para 1002: 740 "The word 'adjournment ' tends to be used loosely in connection with meetings.
Indeed, as a result, the word is possibly in process of acquiring a further, derived meaning of 'close, conclude or finish ', whereas a meeting or a debate is adjourned when its further proceedings are postponed to some subsequent time or to enable it to reassemble at some other place; to a later hour in the same day, to some future date, or indefinitely, i.e. sine die (without a day being named).
The business (of the whole meeting or the debate respectively) is indeed suspended, but with an intention of deferring it until resumption at a later time.
" The learned author goes on to say that the word 'adjourn ' has been in use for almost five centuries in connection with meetings, with an early meaning of 'to put off or defer proceedings to another day ', and adds: "This in due course gave rise to the added meaning 'to break off for later resumption '.
" On an overall view of the facts and circumstances, we have no hesitation in upholding the finding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner for May 6, 1988 was not 'adjourned for the day ' or 'adjourned sine die ' but had only been put off to a later hour i.e. the proceedings had only been suspended, to re commence when peace and order were restored.
In the result, the special leave petition must fail and is dismissed.
No costs.
G.N. Petition dismissed.
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After the election of Members, the first meeting of the Aurangabad Municipal Corporation was held on May 6, 1983 at 2 P.M. and the Municipal Commissioner announced that the polling for the offices of Mayor, Deputy Mayor and Members of the standing Committee would commence from 2.30 p.m. onwards.
But at 2.30 P.M. some of the Councillors belonging to the Opposition Party sat on the ballot boxes and some others surrounded the Municipal Commissioner and demanded that the meeting be adjourned to a subsequent date.
The Councillors belonging to the ruling party demanded that the meeting and election be held later on that day.
Total confusion and bedlam prevailed and the rival groups started throwing Chairs at each other, leading to a pandemonium.
It was a free for all, and even outsiders were present.
When the situation was brought under control, the Municipal Commissioner announced that the meeting would continue and the elections would be held at 4.30 p.m.
The petitioner filed a protest at 4.15 p.m. stating that the meeting had been adjourned by the Municipal Commissioner for the day and, therefore, the holding of the meeting later on the same day would be improper and illegal.
Thereafter, the opposition group abstained from participating in the meeting held at 4.30 p.m., in which Respondents 1 and 2 were declared elected as Mayor and Deputy Mayor respectively 726 and Respondents 3 8 as Members of the Standing Committee.
In a Writ Petition filed before the High Court, the appellant questioned the election, on the basis that the meeting in which the election was held, was invalid.
The High Court held that the meeting was not adjourned for the day or sine die, but was only postponed, to be held as soon as peace was restored on the very day and upheld the election of Respondents 1 to 8.
Against the judgment of the High Court, the petitioner has filed the present special leave petition.
On behalf of the petitioner, it was contended that the meeting was not adjourned to a definite point of time and must therefore be regarded as adjourned for the day or adjourned sine die.
The contention of the Respondents was that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2.45 p.m. and the adjourned meeting held at 4.30 p.m. was a continuation of the original meeting and no new notice of an adjourned meeting had to be given.
It was also contended that there was no warrant for interference under article 136 of the Constitution since a finding of fact had been reached by the High Court on consideration of the material on record.
Dismissing the petition, ^ HELD: 1.
A properly convened meeting cannot be postponed.
The proper course to adopt is to hold the meeting as originally intended, and then and there adjourn it to a more suitable date.
If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat.
Even if the relevant rules do not give the chairman power to adjourn the meeting, he may do so in the event of disorder.
Such an adjournment must be for no longer than the chairman considers necessary and the chairman must, so far as possible, communicate his decision to those present.
[739F G] 2.1 In the instant case, the High Court was right in holding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner for May 6, 1988 was not 'adjourned for the day ' or 'adjourned sine die ' but had only been put off to a later hour i.e. the proceedings had only been suspended, to re commence when peace and order were restored.
[740D E] 727 2.2 There is nothing on record to sustantiate the petitioner 's submission that the first meeting scheduled to be held on May 6, 1988 at 2 P.M. was 'adjourned for the day ' or 'adjourned sine die ' without transacting any business i.e. without consideration of the agenda for the day.
On the contrary, it is not in dispute that the business for the day was partly transacted when the Councillors met at 2 p.m. as scheduled and the Municipal Commissioner declared that the polling would commence from 2.30 p.m. onwards.
The trouble started at 2.30 p.m. when the Councillors belonging to the petitioner 's party prevented the casting of votes by snatching away the ballot boxes from the polling booths and sat upon them.
There was a pre determined plan on their part not to allow the first meeting to be held on that day.
But the Municipal Commissioner did not give way to the commotion and pandemonium and he did not put off the meeting to another day.
In the prevailing situation, the Municipal Commissioner had no other alternative but to adjourn the meeting.
Under the scheme of the Act, when the term of the elected Councillors is a period of five years which in terms of sub section (2) of section 6 of the Act is deemed to commence on the date of the first meeting, the Municipal Commissioner obviously could not adjourn the meeting for another day or adjourn it sine die.
If the contention that the meeting having been adjourned without specifying a definite point of time were to prevail, it would give rise to a serious anomaly.
The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date under section 6(2) of the Act for commencement of the term of the Councillors.
The fact that the Municipal Commissioner did not leave the House or vacate the seat lends support to the version that he had merely suspended the proceedings till order was restored.
[737A E] Smt.
Menaka Bala Dasi vs Hiralal Gobindalal & Anr., and Sheokumar Shashtri vs Municipal Committee, Rajnandgaon, AIR 1964 MP 195 Distinguished.
Shackelton on the Law & Practice of Meeting, 7th Edn.
p. 44, Horsley 's Meetings Procedure, Law and Practice, 2nd Edition, p. 84, para 1002 referred to.
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1. This appeal arises out of an unfortunate dispute between the
appellant no.1 - wife and the respondent no.1 - husband over the custody of
their minor male child Aaditya Kiran. This appeal takes an exception to the
Judgment and order dated 31 st August 2021 passed by the learned Single
Judge of the Punjab and Haryana High Court in a petition for habeas
corpus filed by the respondent no.1 herein for seeking custody of the minor.
2. The respondent no.1 and the appellant no.1 were married in New
York, United States of America (for short “USA”) on 13 th January 2011. The
child was born in USA on 21st January 2016. Thus, the child is a citizen of
USA by birth and is holding a USA passport. Unfortunately, the child was
diagnosed with hydronephrosis which required surgery. It is the case of the
respondent no.1 that as they were not in a position to secure an
appointment of a doctor in USA for surgery, it was agreed between the
appellant no.1 and the respondent no.1 that the child will undergo surgery
at Max Hospital, Saket. As the child is a citizen of USA, consent for
international travel with one legal guardian was executed by and between
the appellant no.1 and the respondent no.1 on 4 th February 2019. The
consent was recorded in the said document to enable the child to travel with
the mother – the appellant no.1 to India. The consent was executed for the
period between 5th February 2019 to 26th September 2019. The consent
document recorded that the child will be leaving USA on 5 th February 2019
and will be returning back to USA on 26 th September 2019. It was further
recorded that any changes to this plan shall be discussed and consented to
by both the parents. A certificate dated 17 th September 2019 issued by Dr.
Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max
Hospital, Saket, New Delhi records that the child underwent a surgery on
14th March 2019. It records that he had examined the child on 12 th July
2019 when he found that the child was doing well. Dr. Anurag Krishna has
recorded that the child needs to be reviewed 6 to 7 months post-surgery
along with a fresh ultrasound and renal scan.
3. It is the case of the respondent no.1 that at the time of surgery, he
flew down to India. After the surgery, he returned to USA for his work. It is
brought on record that the respondent no.1 has a status of permanent
resident in USA which is valid up to 16 th August 2031. According to the
case of the respondent no.1, the appellant no.1 violated the international
travel consent by not allowing the minor child to come back to USA by 26 th
September 2019. According to the respondent no.1, the appellant no.1
detained the minor in her illegal custody in India. Therefore, the respondent
no.1 filed a petition on 30th January 2020 before the Circuit Court of Benton
County, Arkansas, USA, which according to the respondent no.1 is the
Court of competent jurisdiction. The petition was filed for seeking primary
care, control, and custody of the minor on account of his wrongful detention
outside USA. On 3rd February 2020, the Circuit Court passed an interim
order granting primary care, custody, and control of the minor child to the
respondent no.1 and directed the appellant no.1 to return the child to the
respondent no.1. In the petition for habeas corpus filed by the respondent
no.1 in the High Court, he has stated that though a copy of the said order of
the Circuit Court was forwarded to the appellant no.1 by email, she
continues to detain the minor child in India. In the circumstances, the
respondent no.1 filed a petition seeking a writ of habeas corpus in the High
Court of Punjab and Haryana and prayed for a direction to the State of
Haryana to secure the release of the minor child from the illegal custody of
the present appellants. The appellant nos.2 and 3 are the parents of the
appellant no.1 who are residents of Gurgaon in Haryana. At present, the
appellant no.1 is staying with them. Various interim orders were passed in
the said petition from time to time. The High Court appointed a learned
counsel as amicus curiae, who interacted with the appellant no.1 as well as
the respondent no.1 on phone/WhatsApp calls with a view to ascertain their
respective stands. He also submitted a report. By the impugned Judgment
and order, the writ petition filed by the respondent no.1 was allowed. In
paragraph 55, the High Court issued following directions: -
“(i) respondent No.2 is directed to return to USA
along with minor child on or before 30.09.2021;
(ii) in case respondent No.2 opts to return to USA,
the petitioner shall bear the travel and incidental
expenses of respondent No.2 and the minor child
for return to and also the expenses for their stay
in USA till decision of the custody petition and the
petitioner shall not initiate any criminal/contempt
proceedings against respondent No.2 for inter
(iii) if respondent No.2 fails to comply with
aforesaid direction, respondent No.2 shall hand
over custody of the minor child and his passport
to the petitioner on 01.10.2021 or on such other
(iv) in case respondent No.2 fails to hand over
custody of the minor child and her passport to the
petitioner on 01.10.2021 or on such other date as
may be agreed to by the petitioner, respondent
No.1 shall take over the custody and passport of
the minor child from respondent No.2 and hand
over custody and passport of the minor child to
the petitioner on such date as may be agreed to
(v) on custody of the minor child and his passport
being handed over to the petitioner, the petitioner
shall be entitled to take the minor child to USA;
(vi) in case passport of the minor child is not
handed over to the petitioner or respondent No.1
by respondent No.2 on the ground of loss/damage
etc., the petitioner shall be entitled to get the
duplicate passport issued from the concerned
(vii) on such return of the minor child to USA,
either of the parties shall be at liberty to revive the
proceedings before US Court for appropriate
orders regarding appointment of guardian and
grant of custody of the minor child.”
4. Further directions were issued in paragraphs 57 and 58 by the High
Court based on a decision of this Court in the case of Yashita Sahu v.
State of Rajasthan1. Paragraphs 57 and 58 read thus:-
Sahu's case (supra) it is ordered that till filing of
any such application by either of the parties for
revival of the proceedings before the US Court
and passing of any interim/final order by the US
Court of competent jurisdiction on the same,
respondent No.2 shall be entitled to visit the child
and have his temporary custody from 10:00 a.m.
between the petitioner and respondent No.2 if
respondent No.2 returns to and stays in USA or
make video calls to the minor child for about half
respondent No.2 does not return to and stay in
USA and in such an eventuality, the petitioner
parents/other relatives once in a year.
58. However, nothing in this order shall prevent
the parties from adopting any joint parenting plan
minor child such as by arranging admission of
the minor child in some school with hostel facility
and by visiting her during holidays and taking her
custody during vacation as may be permitted by
the school authorities. It is also further clarified
that the observations in the present order have
present writ petition and shall not bind any Court
involving question of custody or welfare of the
child.”
5. As per the assurance recorded in the order dated 24th September
2021 of this Court, the respondent no.1 has secured a USA visa to the
appellant no.1 of the B-2 non-immigrant category. As can be seen from the
order dated 24th November 2021, this Court made an attempt to ascertain
whether an amicable solution could be found to the dispute. Both sides
were directed to submit their suggestions for the amicable resolution of the
dispute. However, an amicable resolution of the dispute was not possible.
6. The learned counsel appearing for the appellants submitted that even
after surgery, the child needs constant medical care. She submitted that
any lapses could be extremely fatal for the life of the minor. She submitted
that the doctor who operated upon the child has advised a very strict care
regime for the child. She pointed out that constant monitoring of his health
is required. Even the water intake of the child has to be carefully
monitored. She pointed out that even the appellant no.3, the grandmother
of the child is taking care of the minor child and there is a family support
available as she is residing with her parents. She pointed out that a
detailed affidavit has been filed by the appellant no.1 indicating reasons
why in the interest of the child he should be in India till he is 9-10 years old.
7. Relying upon the material on record, she submitted that even the
respondent no.1 constantly wished to settle down in India and therefore, he
purchased more and more land in India and especially in Bangalore. The
learned counsel pointed out that it was the respondent no.1 who himself
selected a pre-school for the child while he was in India in April, 2019. She
submitted that the respondent no.1 since the time he got married to the
appellant no.1 made plans to move back to India permanently and was
planning to construct a farm house and a residential house in Bangalore.
She submitted that it was the desire of the respondent no.1 that the
appellant no.1 should work in India. Accordingly, property was bought in
Bangalore where the mother of the respondent no.1 resides. The learned
counsel pointed out that after emails dated 25 th December 2019 and 14th
January 2020 were forwarded by the appellant no.1 to return the money to
the appellant no.2 taken from him for land purchase in Bangalore, the
aforesaid petition was filed by the respondent no.1 in the Court at Arkansas
8. In the written submissions of the appellants, there are various factors
pointed out, such as the temperamental nature of the respondent no.1 and
the conduct of the respondent no.1. The learned counsel submitted that
this Court has held that principles of autonomy must inure in the individual
against non-state persons as well. She submitted that in custody cases, a
woman cannot be completely eliminated in the name of the welfare of the
child. She urged that the woman cannot be deprived of her rights. She
submitted that in any case, the appellant no.1 is the primary/sole caretaker
of the child. Relying upon the decisions of this Court in Smt. Surinder
Kaur Sandhu v. Harbax Singh Sandhu and Another2, Elizabeth
Dinshaw (Mrs.) v. Arvand M. Dinshaw and Another 3 and Nithya Anand
Raghavan v. State (NCT of Delhi) and Another4, the learned counsel
submitted that there is a statutory presumption in favour of the appellant
no.1 under the doctrine of tender years. She submitted that this doctrine
has been upheld in the aforesaid three cases and this Court asserted
maternal preference as found under Section 6 of the Hindu Minority and
Guardianship Act, 1956 (the Act of 1956). She submitted that the appellant
no.1 is the primary caregiver and therefore, it is in the child’s best interest to
retain the custody with the appellant no.1.
9. The learned counsel submitted that to compel the appellant no.1 who
is the primary caregiver to return to USA under the rule of “best interest of
child” will amount to an invasion of her fundamental right of autonomy which
is a part of the right of privacy guaranteed under Article 21 of the
Constitution of India. By adopting a summary procedure, such invasion on
the rights of the appellant no.1 cannot be made. She submitted that the
welfare of the child will mean balancing the interests of all in the family of
the child. The mother being the primary caregiver must be kept in mind by
the Court and her legal rights must be respected and protected by the
Court. She submitted that the appellant no.1 is a fit mother and, in
patriarchy, some special care is needed to counter the dominant presence
of the father of the child. The learned counsel extensively relied upon an
Article by Mr.John Ekelaar under the title “Beyond the welfare principle”.
She submitted that the best interest of the child is the primary principle
which also means the welfare of each member of the family of the child.
She submitted that the matter in patriarchy becomes also a matter of
gender rights which is a constitutional issue covered under Article 14 read
with Article 15(3) of the Constitution of India. She submitted that the
constitutional provisions recognize that women form a separate category
who need to be enabled by the law.
10. She submitted that the citizenship of a child has nothing to do with the
welfare principle. A child may be a citizen of any country, but if the
competent Court finds that it is in the best interest of the child that he is
brought up in India, the child should be permitted to stay in India. The
learned counsel invited our attention to a decision of this Court in the case
of Kanika Goel v. the State of Delhi through Station House Officer and
another5 as well as a decision in the case of Prateek Gupta v. Shilpi
Gupta and others6. She submitted that in these two cases, though the
child was a foreign citizen, it was found to be in the best interest that the
child remains in India to continue with the prime caregiver. Her submission
is that in this case, the child can continue to be an American citizen and
stay in India on the basis of an OCI card. She submitted that eventually,
the child can make his own choice at the age of 18.
11. The learned counsel submitted that the decisions in the cases of
Nithya (supra) and Kanika (supra) are binding precedents as the same are
rendered by the Benches consisting of three Hon’ble Judges. She
submitted that the High Court has completely ignored the binding
precedents. She submitted that the learned Judge of the High Court cannot
decide the case based on his subjective personal opinion. She submitted
that it is necessary that clear and consistent law be followed even in the
custody matters and judicial discretion is not used to subvert the evolving
12. The learned counsel submitted that in this case, a writ of habeas
corpus was not maintainable as the custody of the appellant no.1 is not
illegal. She pointed out that in the cases of Nithya (supra) and Kanika
(supra), directions were issued to the Family Court to complete the hearing
of custody matters within a time frame. The learned counsel submitted that
in the cases of Yashita (supra) and Lahari Sakhamuri v. Sobhan Kodali7,
an exception was made to the rule laid down, in the cases of Nithya (supra)
and Kanika (supra) as in these two cases, the mothers had submitted to
the jurisdiction of the Court in USA.
13. She reiterated that in the name of welfare and interest of the child, the
welfare of one of the parents cannot be eliminated altogether. The learned
counsel submitted that the appellant no.1 cannot be compelled to go back
to USA. Her submission is that if the child is placed in the custody of the
respondent no.1 on the ground that the appellant no.1 is not interested in
going to USA, the child will be reduced to a chattel.
14. The learned counsel submitted that to refuse a woman the right of
mothering is refusing to acknowledge and respect a very core biological
and social identity. She submitted that a custody dispute cannot be decided
purely in the facts of each case. She submitted that the law laid down in
the case of Nithya (supra) has to be followed as recently done by Bombay
High Court in the case of Chandima Janaka Wijesinghe v. Union of India
and others in Crl. Writ Petition No. 547 of 2021.
15. The learned counsel submitted that the issue of medical evaluation of
the child requires a detailed hearing. She submitted that the visa granted to
the appellant no.1 is only a tourist visa which would entitle her to visit USA
only for specific enlisted reasons. She submitted that the stand of the
respondent no.1 of supporting the appellant no.1 for getting the visa is
illusory. She pointed out that the respondent no.1, by relying upon alleged
legal separation, has contended that he cannot support the application for a
grant of a green card to the appellant no.1. The learned counsel also
invited our attention to the pleadings in the interlocutory applications filed by
the respondent no.1. She submitted that the conduct of the respondent
no.1 of making allegations in the applications shows that he is more
interested in litigation and winning the battle against the appellant no.1
rather than acting in collaboration with her for the benefit of the child.
16. The learned counsel further submitted that the Indian medical system
is better suited for taking care of the minor son and even the appellant no.3
is a doctor. She submitted that it is not in the interest of the minor son that
he is taken to USA.
17. She submitted that considering the unique facts of the case, the larger
Bench decisions of this Court in the cases of Nithya (supra) and Kanika
(supra) are applicable. She submitted that the said two decisions constitute
binding precedents and the cases of Lahiri (supra) and Yashita (supra) are
exceptions to the general rule. She submitted that the concept of forum
convenience has no place in the Guardianship proceedings. She submitted
that this is not a case of abduction of the child as the child was brought to
India with the consent of the respondent no.1 for the purposes of medical
treatment. Therefore, the learned counsel submitted that the offer given by
the respondent no.1 cannot be accepted for the reasons set out in the
written submissions. She submitted that the impugned Judgment is
erroneous and illegal which deserves to be set aside.
18. The learned counsel appearing for the respondent no.1 pointed out
that the appellant no.1 has spent more than nine years in USA. After her
marriage with the respondent no.1, she has spent eight years in USA. He
invited our attention to the consent executed by the appellant no.1 and the
respondent no.1 for permitting the child to travel to India between 5 th
February 2019 to 26th September, 2019. He submitted that in the light of
the increase in cases of international parental child abduction from the
USA, the Immigration Authorities in USA do not allow a minor US citizen to
leave the country only with one parent without the express consent of the
non-travelling parent. He submitted that after the consent document was
executed, no changes therein were even discussed between the parties.
He submitted that documents on record will show that in terms of the
international travel consent form, return tickets of 26 th September, 2019
were also booked. He submitted that in violation of the international travel
consent, the appellant no.1 has not sent back the minor son to USA, which
amounts to the detention of the minor in her illegal custody in India.
19. The learned counsel appearing for the respondent no.1 submitted that
there is no document produced on record by the appellants to show that the
child needs continuous follow-up treatment.
20. The learned counsel submitted that in terms of the interim order dated
10th June 2020 of the High Court, the respondent no.1 has been interacting
regularly with his minor son through video conference and there is a very
healthy and deep father and son relationship between them. He stated that
he has taken legal advice from a firm specialising in immigration law in
USA. He submitted that the respondent no.1 received advice from the said
firm that to enable the appellant no.1 and the child to travel to USA, the
quickest as well as legally and practically most viable way to get a visa was
to get a B-2 non-immigrant visa.
21. He pointed out that in the visa invitation letter, the respondent no.1
has clarified that he will take care of tour expenses of the appellant no.1,
including the round trip, airfare, food, housing, medical insurance in USA.
The learned counsel submitted that the order of the High Court is a very
balanced order which is consistent with the law laid down by this Court in
the cases of Lahiri (supra) and Yashita (supra). He would, therefore,
submit that there is no reason to interfere with the equitable order passed
by the High Court.
22. We have given a careful consideration to the submissions. The
appellant no.1 and the respondent no.1 got married on 13 th January 2011 in
New York in USA. The minor son was born on 21 st January 2016 and is
admittedly a citizen of USA. There is no dispute regarding the appellant
no.1 and respondent no.1 signing and executing a consent for travel of the
minor to India with one legal guardian. It is necessary to reproduce the said
I, Kiran Bhaskar of 321 Division St, Cenerton, AR
72719, United States declare that I am the legal
parent/guardian of Aaditya Kiran, male, born
certificate registration number 2016001506, issued
numbered 546227929, issued on October 14, 2016
at United States, Department of State.
My child, Aaditya Kiran, has consent to travel:
(February 5th, 2019 to September 26th, 2019), C/o
(February 5th, 2019 to September 26th, 2019), C/o,
with Vasudha Sethi (my wife, Aaditya’s mother) of
States. Vasudha Sethi has an Indian passport
numbered J0499893, which was issued on June 8,
2010 at Regional Passport Office, Delhi, India. My
child will be leaving the United States on February
5th, 2019 and returning to the United States on
September 26th, 2019. Any changes to this plan
shall be discussed and consented upon by both
parties.
Any questions regarding this document may be
Signed on this 4th day of February, 2019.
23. It is not the case of the appellant no.1 that there was even a
discussion between the appellant no.1 and the respondent no.1 for
modification of the said consent till date. Admittedly, the period of travel
mentioned in the consent was not extended by the respondent no.1. The
minor son underwent surgery at the hands of Dr. Anurag Krishna on 14 th
March 2019. The certificate dated 17th September 2019 issued by
Dr.Anurag Krishna records that he examined the minor on 12 th July, 2019
and he found that the child was doing well. He has recorded in the
certificate that the child needs to be reviewed 6 to 7 months after the
surgery along with fresh ultrasound and renal scan. Thus, the surgery has
taken place 33 months back. The appellant has not placed on record any
medical certificate or opinion of Dr.Anurag Krishna on the present health
condition of the child. The appellants have not placed on record any
medical certificate of the treating doctor recording that the child needs any
further treatment or medical care in India. The respondent no.1 consented
for the child travelling to India and remaining in India till 26 th September
2019. The reason for the grant of consent was to enable the minor to
undergo surgery in New Delhi. We will have to proceed on the footing that
there is no documentary evidence available on record to show that the
presence of the child in India for further medical treatment is necessary.
24. On 3rd February, 2020, the Circuit Court of Benton County, Arkansas,
USA passed an ex-parte order which reads thus:
“Now on the 3rd day of February, 2020, this matter
comes before the Court, and the Court, being well
and sufficiently advised finds and orders as follows:
1. The Court has jurisdiction over the parties and
subject matter and venue is proper herein.
2. Defendant has removed the parties' minor child to
India and remained there without the consent of
3. Defendant has alienated the child from Plaintiff,
which is harmful to the child's well-being.
4. Plaintiff is awarded primary care, custody and
control of the minor child, Aaditya Kiran pending
further orders of the Court.
5. Defendant shall return Aaditya Kiran to Plaintiff
immediately.
request by either party.”
25. Firstly, we will deal with the legal submissions made by the learned
Counsel for the appellants. The learned counsel appearing for the appellants
has placed heavy reliance on the decisions of this Court in the cases of
Kanika (supra) and Nithya (supra) which are rendered by Benches of three
Judges of this Court. With some emphasis, the learned counsel appearing
for the appellants had submitted that there is a need to make a departure
from the rule of “best interest of the child” or the “welfare principle”. Her
contention is that welfare would mean balancing the interests of all the
members of the child’s family. She contended that the mother as the
primary caregiver must be kept in mind as a person who has legal rights
which must be respected and protected. The learned counsel relied upon
a decision of this Court in the case of K.S. Puttaswamy v. Union of India8
by contending that principles of autonomy must inure against non-state
persons as well. Her submission is that the law regarding custody does
not and cannot completely eliminate a woman in the name of child welfare.
On this aspect, we must note that in the case of Kanika (supra), this Court
has quoted with approval what is held in paragraph 53 of its decision in the
case of Prateek Gupta (supra). In paragraph 53 of the decision in the case
of Prateek Gupta (supra), it was held that the issue with regard to
repatriation of a child has to be addressed not on a consideration of legal
rights of the parties but on the sole criteria of the welfare of the child. In
paragraph no.34 of its decision, this Court in the case of Kanika (supra),
“34. As expounded in the recent decisions of this
Court, the issue ought not to be decided on the basis
of rights of the parties claiming custody of the minor
child but the focus should constantly remain on
whether the factum of best interest of the minor child is
to return to the native country or otherwise. The fact
that the minor child will have better prospects upon
return to his/her native country, may be a relevant
aspect in a substantive proceeding for grant of custody
of the minor child but not decisive to examine the
threshold issues in a habeas corpus petition. For the
purpose of habeas corpus petition, the Court ought to
focus on the obtaining circumstances of the minor
child having been removed from the native country
and taken to a place to encounter alien environment,
language, custom, etc. interfering with his/her overall
growth and grooming and whether continuance there
will be harmful. This has been the consistent view of
this Court as restated in the recent three-Judge Bench
decision in Nithya Anand Raghavan [Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 :
(2017) 4 SCC (Civ) 104] , and the two-Judge Bench
decision in Prateek Gupta [Prateek Gupta v. Shilpi
is unnecessary to multiply other decisions on the same
aspect.”
26. The learned counsel appearing for the appellant heavily relied upon
an article by Mr.John Ekelaar. The article contains some criticism of “the
welfare principle”. The author has strongly advocated how the law should
be reformulated by getting rid of “welfare” or “best interest” principles. The
article is in the realm of the opinion of the learned author. The decision of
this Court in the case of Kanika (supra) reiterates the well-settled law that
the issue regarding custody of a minor child and the issue of the repatriation
of the child to the native country has to be addressed on the sole criteria of
the welfare of the minor and not on consideration of the legal rights of the
parents. The principle that the welfare of the minor shall be the
predominant consideration and that the rights of the parties to a custody
dispute are irrelevant has been consistently followed by this Court. In fact,
in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act,
1956 (for short “the 1956 Act”), it is provided that in appointment or
declaration of guardian of a minor, the welfare of the minor shall be the
paramount consideration. When a Court decides that it is in the best
interest of the minor to remain in the custody of one of the parents, the
rights of the other parent are bound to be affected. As provided in clause (a)
of Section 6 of the 1956 Act, in the case of a minor boy or girl, the natural
guardian is the father, but ordinarily, the custody of a minor who has not
completed the age of 5 years shall be with the mother. On a conjoint
reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of
the 1959 Act, if it is found that the welfare of a minor whose age is more
than 5 years requires that his custody should be with the mother, the Court
is bound to do so. In the same way, if interest of the minor which is the
paramount consideration requires that the custody of a minor child should
not be with the mother, the Court will be justified in disturbing the custody of
the mother even if the age of the minor is less than five years. In such
cases, the rights of the father or the mother, as the case may be, conferred
by clause (a) of Section 6 are bound to be affected. Whenever the Court
disturbs the custody of one parent, unless there are compelling reasons,
the Court will normally provide for visitation rights to the other parent. The
reason is that the child needs the company of both parents. The orders for
visitation rights are essentially passed for the welfare of minors and for the
protection of their right of having the company of both parents. Such orders
are not passed only for protecting the rights of the parents. In view of the
settled legal position, the welfare of the minor being the paramount
consideration, we cannot act upon the suggestions of Mr.John Ekelaar in
his Article. We cannot accept the submission that while applying the
welfare principle, the rights of the mother or father need to be
protected. The consideration of the well-being and welfare of the child must
get precedence over the individual or personal rights of the parents.
Whether the Court while dealing with a case like this can compel one of the
parents to move from one country to another is a separate issue. We are
dealing with the said issue separately.
27. Each case has to be decided on its own facts and circumstances.
Though no hard and fast rule can be laid down, in the cases of Kanika
(supra) and Nithya (supra), this Court has laid down the parameters for
exercise of the power to issue a writ of habeas corpus under Article 226 of
the Constitution of India dealing with cases of minors brought to India from
the country of their native. This Court has reiterated that the paramount
consideration is the welfare of the minor child and the rights of the parties
litigating over the custody issue are irrelevant. After laying down the
principles, in the case of Nithya (supra), this Court has clarified that the
decision of the Court in each case must depend on the totality of facts and
circumstances of the case brought before it. The factual aspects are
required to be tested on the touchstone of the principle of welfare of the
minor child. In the cases of Lahiri (supra) and Yashita (supra), the
Benches of this Court consisting of two Judges have not made a departure
from the law laid down in the decisions of larger Benches of this Court in
the cases of Nithya (supra) and Kanika (supra). The Benches have applied
the law laid down by the larger Bench to the facts of the cases before them.
It is not necessary for us to discuss in detail the facts of the aforesaid
cases. By its very nature, in a custody case, the facts cannot be similar.
What is in the welfare of the child depends on several factors. A custody
dispute involves human issues which are always complex and complicated.
There can never be a straight jacket formula to decide the issue of custody
of a minor child as what is in the paramount interest of a minor is always a
question of fact. But the parameters for exercise of jurisdiction as laid down
in the cases of Nithya (supra) and Kanika (supra) will have to be followed.
28. Now we turn to the findings recorded by the High Court. The perusal
of the impugned judgment shows that the High Court has adverted to the
law laid down in the cases of Kanika (supra) and Nithya (supra) apart from
other cases. The High Court found that in the facts of the case, summary
inquiry deserves to be adopted. The Court noted that the child has spent
more than three years in USA and two and a half years in India. Therefore,
it cannot be said that there is a complete integration of the child with the
social, physical, psychological, cultural and academic environment of either
USA or India. After considering the documents placed on record, the High
Court found that the appellant no.1 has not produced any further medical
report or medical treatment record to show that the minor child requires
further regular medical treatment apart from usual periodical review and
therefore, it will not be difficult to arrange a periodical review even if the
child is in USA. The High Court on examination of the documents found
that the respondent no.1 had financial resources to maintain the appellant
no.1 and the minor child in USA. Merely because the respondent no.1 had
asked the appellant no.1 to arrange funds for purchase of lands in
Bangalore, it cannot be said that his intention is to abandon USA and settle
down permanently in India. Moreover, the High Court noted that
international travel consent signed by the appellant no.1 and the
respondent no.1 required that the minor should come back to USA on 26 th
September, 2019. The High Court held that change in the travel plan was
not discussed and consented by both the parties. The High Court also
considered the allegation that the respondent no.1 has temperamental
issues. In fact, the respondent no.1 produced a Psychological Evaluation
Report dated 21st October 2020 issued by the Centre for Psychology which
recorded that the respondent no.1 is free of any neurophysiological
problems and has no diagnosable mental health problems. The certificate
recorded that he is free of depression, anxiety and reports no suicidal
tendencies. The High Court also considered the relevance of the report of
the USA Embassy regarding the welfare of the child. The Court noted that
there is a disclaimer in the said report that the consular officer who is the
author of the report is not trained in child protection, social work, or other
similar discipline and therefore, the report is not a child custody evaluation.
The High Court has also noted the allegations and rival allegations against
each other made by the appellant no.1 and the respondent no.1. About the
argument that the appellant no.1 is taking constant care of the minor child,
the High Court referred to the said report of the USA Embassy. In
paragraphs 48 and 49 of the Judgment, the High Court has noted the
contents of the said report and has drawn conclusions which are recorded
in paragraph 50. Paragraphs 48 to 50 of the impugned Judgment read
“48. However, a perusal of the welfare report dated
17.12.2019 of Visiting Consular of US Embassy shows
that respondent No.2 told the Visiting Consular that
her aunt picks up minor child from school and brings
him home each day and stays with him throughout the
day while the mother and grand-parents are at work.
The minor child has a domestic helper who takes care
of his needs and plays with him. It is evident from the
report that even respondent No.2 and her parents are
not giving whole day personal care and attention to the
minor child.
49. The petitioner has filed affidavit dated
15.06.2020 that the petitioner also has requisite skills
to care for his child in the USA. The petitioner has also
the option to work from home permanently, enabling
him to care for the child full time when required.
Hanumantharayya has a valid US visa till 23.02.2024
and has expressed her willingness to take care of the
minor child to this Court.
50. In these facts and circumstances, there is no
reasonable ground to believe that the minor child
cannot be given due personal care and attention in
USA and therefore, repatriation of the minor child
cannot be declined on the ground of lack of requisite
personal care and attention to the minor child in USA.”
29. After considering the said aspects, the High Court issued directions in
paragraphs 55, 57 and 58 which we have already quoted above. The
factors considered by the High Court were certainly relevant. The High
Court had the benefit of the assistance of a learned Counsel who was
appointed as Amicus Curiae. He interacted with the contesting parties. The
report of the Amicus Curiae has been considered by the High Court.
30. The learned Judge of the High Court noted that except for the case
filed by the respondent no.1 in USA Court regarding custody of the minor,
there are no proceedings pending between the appellant no.1 and the
respondent no.1. It was also noted that the welfare report dated 17 th
December, 2019 of Visiting Consular of US Embassy records that the
appellant no.1 informed that her aunt picks up the minor child from school
and brings him home each day and stays with him throughout the day while
the mother and grand-parents are at work. Moreover, a domestic helper is
taking care of the needs of the child. Therefore, the appellant no.1 is not
devoting her whole day to take personal care of the minor and to attend to
the needs of the minor child. The High Court noted that on the other hand,
an affidavit has been filed by the respondent no.1 that an option to
permanently work from home is available to him and his mother has a valid
visa to stay in USA till 23rd February 2024 who has expressed willingness to
take care of the minor child in USA. The other factors considered by the
High Court while holding a summary inquiry were that the stay of the minor
child in India has been for too short a period to facilitate his integration into
the social, physical, physiological, cultural and academic environment of
India. Moreover, the minor child, if repatriated to USA, will not be subjected
to an entirely foreign system of education. The High Court has also taken
into consideration the fact that the child is a citizen of USA who will have
better future prospects on return to USA. It is observed that the natural
process of grooming in the environment of the native country is
indispensable for his comprehensive development. The High Court further
observed that it is not shown that return of the child to USA will be harmful
to him.
31. After having perused the material on record, we find that the High
Court has considered all relevant factors while holding a summary inquiry.
The High Court has given reasons for coming to the conclusion that it will
be in the interest and welfare of the child to return to USA. The High Court
has not treated the order of USA court as conclusive. The High Court had
the benefit of the assistance of a learned Counsel who was appointed as
amicus. The exercise of power by the High Court cannot be said to be
perverse or illegal. We find that the High Court has not overlooked the
view taken by larger Benches of this Court in the cases of Kanika (supra)
and Nithya (supra). We are in agreement with High Court when it came to
the conclusion that it will be in the welfare of the child to return to USA.
32. The emphasis of the learned counsel appearing for appellants was
more on the rights of the appellant no.1 and on making a departure from the
well-known concept that the welfare of the minor is the paramount
consideration. The said submissions are contrary to the law laid down by
this Court in the case of Kanika (supra) as observed by us earlier. As we
have noted earlier, the rights of the parents are irrelevant when a Court
decides the custody issue. It is not a consideration at all for deciding the
33. A question was raised whether the High Court was justified in passing
an order directing the appellant no.1 to return to USA along with the minor
child on or before a particular date. The issue of custody of a minor,
whether in a petition seeking habeas corpus or in a custody petition, has to
be decided on the touchstone of the principle that the welfare of a minor is
of paramount consideration. The Courts, in such proceedings, cannot
decide where the parents should reside as it will affect the right to privacy of
the parents. We may note here that a writ Court while dealing with the
issue of habeas corpus cannot direct a parent to leave India and to go
abroad with the child. If such orders are passed against the wishes of a
parent, it will offend her/his right to privacy. A parent has to be given an
option to go abroad with the child. It ultimately depends on the parent
concerned to decide and opt for giving a company to the minor child for the
sake of the welfare of the child. It will all depend on the priorities of the
concerned parent. In this case, on a conjoint reading of clauses (i) to (iii) of
paragraph 55 of the judgment, it is apparent that such an option has been
given to the appellant no.1.
34. We may record here that an email dated 18 th October, 2021
addressed by the appellant no.1 to the respondent no.1 is placed on record
along with I.A. No. 147418 of 2021. In the said email, the appellant no.1
has informed the respondent no.1 that during her visa interview, if she is
asked, she will clearly state that the intended purpose of visiting USA was
also to contest cases filed by the respondent no.1 and to file cases against
the respondent no.1. Therefore, an option has to be given to the appellant
no.1 to return to USA along with the minor son though she cannot be forced
to stay with the respondent no.1. Therefore, the respondent no.1 will have
to make proper arrangements for a suitable residence for the comfortable
stay of the appellant no.1 in USA. The reason is that the appellant no.1
cannot work in USA on the basis of a B-2 visa. The respondent no.1 will
have to provide a reasonable amount per month to the appellant no.1 to
maintain herself and the child in USA. Necessary steps will have to be
taken by the respondent no.1 to secure admission for the child in a school
in USA. To enable the appellant no.1 to contest the custody petition filed by
the respondent no.1, a direction will have to be issued to the respondent
no.1 not to enforce and act upon the said order of USA Court in any
manner for a period of three months from the date on which the appellant
no.1 reaches USA with the son. During the said period of three months,
visitation rights will have to be provided to the respondent no.1 to meet the
minor child. If the appellant no.1 opts to go to USA and contest the custody
proceedings, the parties will have to abide by the result of the said
proceedings in so far as the issue of the custody of the minor child is
35. The appellant no.1 will have to be given time of fifteen days from
today to communicate the respondent no.1 her willingness to travel to USA
with the child. If she intends to visit USA, along with her willingness, she
must communicate possible dates of travel. The dates should be within
maximum period of three months from today. On receiving the same, the
respondent no.1 shall arrange for air tickets and make arrangements for
the comfortable stay of the appellant no.1 and the minor in USA. The
respondent no.1 shall, for the time being, transfer US$ 5,000 to the
appellant no.1 for facilitating expenditure in USA. The respondent no.1, in
addition, shall transfer US$ 1,500 to the appellant no.1 which can be used
by the appellant no.1 for the benefit of the minor child in USA. The
respondent no.1 will have to also provide a proper health insurance to both
of them. The respondent no.1 will also be under an obligation to take care
of medical treatment of the minor son.
36. In the event the appellant no.1 fails to communicate her willingness to
travel to USA within fifteen days from today, it will be open for the
respondent no.1 to take the custody of the child. After the respondent no.1
arrives in India, the appellant no.1 shall hand over the custody of the minor
son to the respondent no.1 to enable the respondent no.1 to take the minor
son to USA. To the above extent, the order of the High Court requires
modification. As noted earlier, now B-2 visa has been granted to the
appellant no.1. The respondent no.1 will have to also facilitate extension of
visa granted to the appellant no.1, in case she desires to continue her stay
(i) It will be open for the appellant no.1 to travel to USA
along with the minor child and to contest the proceedings
pending in USA. If the appellant no.1 is willing to travel to USA
along with the minor child, she will communicate her willingness
to do so to the respondent no.1 by email within a period of
fifteen days from today. The appellant no.1 shall communicate
to the respondent no.1 the possible dates on which she
proposes to travel along with the minor child. The possible
dates shall be within three months from today;
(ii) On receiving an intimation as aforesaid, the respondent
no.1 shall book air tickets after consulting the appellant no.1.
The respondent no.1 shall make proper arrangements for
separate stay of the appellant no.1 in USA after consulting her.
The arrangements for residence shall be made at the cost of
the respondent no.1. As and when the appellant no.1 wants to
return to India, it shall be the responsibility of the respondent
no.1 to pay for her air tickets. If she wishes to continue in USA,
the respondent no.1 shall take all possible steps for the
(iii) In the event the appellant no.1 agrees to travel to USA
along with the minor son, it will be the responsibility of the
respondent no.1 to pay a sufficient amount per month to the
appellant no.1 for maintenance of herself and the minor son.
Along with the air tickets, the respondent no.1 shall remit US$
6,500 to the appellant no.1 by a mutually convenient mode.
The amount shall be utilised by the appellant no.1 to meet initial
expenditure in USA. After the expiry of period of one month
from the date on which the appellant no.1 arrives in USA, the
respondent no.1 shall regularly remit a mutually agreed amount
to the appellant no.1 for maintenance. If there be any dispute,
the parties are free to adopt remedy in accordance with law.
The respondent no.1 shall provide proper medical insurance to
the appellant no.1 and the minor child while they are in USA.
Moreover, the respondent no.1 shall be under an obligation to
provide proper medical treatment to the minor child;
(iv) In the event, the appellant no.1 along with the minor child
visits USA in terms of this order, for a period of three months
from the date of her arrival, the respondent no.1 shall not take
any steps to implement or enforce the order dated 3 rd February
2020 passed by the Circuit Court of Benton County, Arkansas
which will enable the appellant no.1 to move the concerned
Court for contesting the petition filed by the respondent no.1
and to file appropriate proceedings. A written undertaking to
that effect shall be filed by the respondent no.1 in this Court
within two weeks from today. Thus, for the said period of three
months, the custody of the minor shall remain with the appellant
(v) After the appellant no.1 and minor child reach USA,
subject to the orders which may be passed by the competent
Court in USA, for a period of 3 months from their arrival, the
respondent no.1 shall be entitled to have temporary custody of
the minor child from 10 am to 5 pm on every Sunday or as
mutually agreed upon by the appellant no.1 and the respondent
no.1. In addition, the respondent no.1 shall be entitled to make
a video call to talk to the minor child for about half an hour on
every day (except Sunday) between 5 pm to 6 pm;
(vi) In the event, the appellant no.1 is not willing to visit USA
along with her minor son and fails to communicate her
willingness to visit USA within a period of fifteen days from
today, it will be open for the respondent no.1 to take custody of
the child. After the respondent no.1 visits India, the appellant
no.1 shall hand over the custody of the minor child to him and
the respondent no.1 shall be entitled to take the minor child with
him to USA. In such an event, the appellant no.1 will be
entitled to talk to the minor child on video call for half an hour
on every day between 5 pm to 6 pm (USA time) or at such time
as mutually agreed upon by the appellant no.1 and the
(vii) As observed by the High Court in paragraph 58 of the
impugned Judgment, an option of adopting agreed joint
parenting plan remains open to the parties. If they wish to do
so, they can always file appropriate application before the High
(viii) This order shall not be construed to mean that any final
adjudication has been made on the rights of the parties.
The appeal is disposed of in the above terms.
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The Supreme Court has observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.The issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration, the bench of Justices Ajay Rastogi and...
The Supreme Court has observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.
The issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration, the bench of Justices Ajay Rastogi and Abhay S. Oka observed.
In this case, the Punjab and Haryana High Court issued several directions while allowing a petition for habeas corpus filed by the husband seeking custody of the minor child. The mother was directed to return to USA along with minor child on or before 30.09.2021. Challenging this order, the mother approached the Apex Court.
On behalf of the mother, it was contended that the welfare principle would mean balancing the interests of all the members of the child's family. It was contended that the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected. An article by Mr.John Ekelaar which some criticism of "the welfare principle" was relied upon.
Addressing this contention, the bench referred to Kanika Goel v. the State of Delhi (2018) 9 SCC 578 and Prateek Gupta v. Shilpi Gupta (2018) 2 SCC 309
"The decision of this Court in the case of Kanika (supra) reiterates the well-settled law that the issue regarding custody of a minor child and the issue of the repatriation of the child to the native country has to be addressed on the sole criteria of the welfare of the minor and not on consideration of the legal rights of the parents. The principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant has been consistently followed by this Court. "
The court noted that, in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act, 1956 (for short "the 1956 Act"), it is provided that in appointment or declaration of a guardian of a minor, the welfare of the minor shall be the paramount consideration. The court made the following observations:
The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.
26...When a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected. As provided in clause (a) of Section 6 of the 1956 Act, in the case of a minor boy or girl, the natural guardian is the father, but ordinarily, the custody of a minor who has not completed the age of 5 years shall be with the mother. On a conjoint reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of the 1959 Act, if it is found that the welfare of a minor whose age is more than 5 years requires that his custody should be with the mother, the Court is bound to do so. In the same way, if interest of the minor which is the paramount consideration requires that the custody of a minor child should not be with the mother, the Court will be justified in disturbing the custody of 24 the mother even if the age of the minor is less than five years. In such cases, the rights of the father or the mother, as the case may be, conferred by clause (a) of Section 6 are bound to be affected. Whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. In view of the settled legal position, the welfare of the minor being the paramount consideration, we cannot act upon the suggestions of Mr.John Ekelaar in his Article. We cannot accept the submission that while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.
Rights of the parties litigating over the custody issue are irrelevant
27. Each case has to be decided on its own facts and circumstances. Though no hard and fast rule can be laid down, in the cases of Kanika (supra) and Nithya (supra), this Court has laid down the parameters for exercise of the power to issue a writ of habeas corpus under Article 226 of the Constitution of India dealing with cases of minors brought to India from the country of their native. This Court has reiterated that the paramount consideration is the welfare of the minor child and the rights of the parties litigating over the custody issue are irrelevant. After laying down the principles, in the case of Nithya (supra), this Court has clarified that the decision of the Court in each case must depend on the totality of facts and circumstances of the case brought before it. The factual aspects are required to be tested on the touchstone of the principle of welfare of the minor child. In the cases of Lahiri (supra) and Yashita (supra), the Benches of this Court consisting of two Judges have not made a departure from the law laid down in the decisions of larger Benches of this Court in the cases of Nithya (supra) and Kanika (supra). The Benches have applied the law laid down by the larger Bench to the facts of the cases before them. It is not necessary for us to discuss in detail the facts of the aforesaid cases. By its very nature, in a custody case, the facts cannot be similar. What is in the welfare of the child depends on several factors. A custody dispute involves human issues which are always complex and complicated. There can never be a straight jacket formula to decide the issue of custody of a minor child as what is in the paramount interest of a minor is always a question of fact. But the parameters for exercise of jurisdiction as laid down in the cases of Nithya (supra) and Kanika (supra) will have to be followed.
The bench also considered the issue as to whether the Court can compel one of the parents to move from one country to another? In this regard, the bench observed thus:
The Courts, in such proceedings, cannot decide where the parents should reside as it will affect the right to privacy of the parents. We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy. A parent has to be given an option to go abroad with the child. It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child. It will all depend on the priorities of the concerned parent.
The court therefore modified the directions issued by the High Court:
(i) It will be open for the appellant no.1 to travel to USA along with the minor child and to contest the proceedings pending in USA. If the appellant no.1 is willing to travel to USA along with the minor child, she will communicate her willingness to do so to the respondent no.1 by email within a period of fifteen days from today. The appellant no.1 shall communicate to the respondent no.1 the possible dates on which she proposes to travel along with the minor child. The possible dates shall be within three months from today; (ii) On receiving an intimation as aforesaid, the respondent no.1 shall book air tickets after consulting the appellant no.1. The respondent no.1 shall make proper arrangements for separate stay of the appellant no.1 in USA after consulting her. The arrangements for residence shall be made at the cost of 36 the respondent no.1. As and when the appellant no.1 wants to return to India, it shall be the responsibility of the respondent no.1 to pay for her air tickets. If she wishes to continue in USA, the respondent no.1 shall take all possible steps for the extension of visa or for getting a new visa; (iii) In the event the appellant no.1 agrees to travel to USA along with the minor son, it will be the responsibility of the respondent no.1 to pay a sufficient amount per month to the appellant no.1 for maintenance of herself and the minor son. Along with the air tickets, the respondent no.1 shall remit US$ 6,500 to the appellant no.1 by a mutually convenient mode. The amount shall be utilised by the appellant no.1 to meet initial expenditure in USA. After the expiry of period of one month from the date on which the appellant no.1 arrives in USA, the respondent no.1 shall regularly remit a mutually agreed amount to the appellant no.1 for maintenance. If there be any dispute, the parties are free to adopt remedy in accordance with law. The respondent no.1 shall provide proper medical insurance to the appellant no.1 and the minor child while they are in USA. Moreover, the respondent no.1 shall be under an obligation to provide proper medical treatment to the minor child; (iv) In the event, the appellant no.1 along with the minor child visits USA in terms of this order, for a period of three months from the date of her arrival, the respondent no.1 shall not take any steps to implement or enforce the order dated 3rd February 2020 passed by the Circuit Court of Benton County, Arkansas which will enable the appellant no.1 to move the concerned Court for contesting the petition filed by the respondent no.1 and to file appropriate proceedings. A written undertaking to that effect shall be filed by the respondent no.1 in this Court within two weeks from today. Thus, for the said period of three months, the custody of the minor shall remain with the appellant no.1; (v) After the appellant no.1 and minor child reach USA, subject to the orders which may be passed by the competent Court in USA, for a period of 3 months from their arrival, the respondent no.1 shall be entitled to have temporary custody of the minor child from 10 am to 5 pm on every Sunday or as 38 mutually agreed upon by the appellant no.1 and the respondent no.1. In addition, the respondent no.1 shall be entitled to make a video call to talk to the minor child for about half an hour on every day (except Sunday) between 5 pm to 6 pm; (vi) In the event, the appellant no.1 is not willing to visit USA along with her minor son and fails to communicate her willingness to visit USA within a period of fifteen days from today, it will be open for the respondent no.1 to take custody of the child. After the respondent no.1 visits India, the appellant no.1 shall hand over the custody of the minor child to him and the respondent no.1 shall be entitled to take the minor child with him to USA. In such an event, the appellant no.1 will be entitled to talk to the minor child on video call for half an hour on every day between 5 pm to 6 pm (USA time) or at such time as mutually agreed upon by the appellant no.1 and the respondent no.1; (vii) As observed by the High Court in paragraph 58 of the impugned Judgment, an option of adopting agreed joint parenting plan remains open to the parties. If they wish to do so, they can always file appropriate application before the High Court; and (viii) This order shall not be construed to mean that any final adjudication has been made on the rights of the parties. /div>
Case name: Vasudha Sethi vs Kiran V. Bhaskar
Case no. and Date: CrA 82 OF 2022 | 12 Jan 2022
Coram: Justices Ajay Rastogi and Abhay S. Oka
Counsel: Advocate Binu Tamta For Petitioner and Advocate Shadan Farasat For Respondent (Father)
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Criminal Appeal No. 152/59.
, xi Appeal by Special leave from the judgment and Order dated May 12, 1959 of the Allahabad High Court in Criminal Revision No. 1182 of 1957.
Nur ud din Ahmed, J.,B. Dadachanji, O. C. Mathur, and Ravindar Narain for the Appellants.
852 G. C. Mathur and C.A. Lal for the Respondent.
May 3.
The Judgment of the Court was delivered by KAPUR, J.
The appellants are father and son carring on business in vegetable ghee at Aligarh.
They along with Romesh, the second son of appellant Jagannath Prasad were prosecuted under section 14 (d) of the U. P. Sales Tax Act, 1948 (U.P. 15 of 1948) hereinafter called the 'Act ' and under section 471 read with section 468 and section 417 of the Indian Penal Code.
They were all acquitted of the charge under section 468.
Jagannath Prasad was convicted under section 471 and 417 of the Indian Penal Code and a. 14 (d) of the Act and was sentenced to two years ' rigorous imprisonment under a. 471, to one years ' rigorous imprisonment and a fine of Rs. 1,000/ under section 417 and to a fine of Rs. 1,000 under section 14 (d) of the Act.
Bhagwan Das was convicted under section 14 (d) of the Act and sentenced to a fine of Rs. 1, 000/ .
Romesh was acquitted.
The sentences passed on Jagannath Prasad were.
concurrent.
Their 'appeal to the Sessions Judge was dismissed and in revision to the High Court Jagannath Prasad was acquitted of the offence under a. 417 of the Indian Penal Code but the other convictions and sentences were upheld.
Against this judgment and order of the High Court of Allahabad the appellants have come to this court by special leave.
The facts leading to the appeal are these: In 1950 51, the firm of the appellants purchased vegetable ghee valued at about Rs. 3 lacs from places outside the State of U. P. in the name of four fictitious firm.
The firm made its return for that year to the Sales Tax Officer Aligarh and did not include the sale proceeds of these transactions on the ground that they had purchased them from these four firms who were supposed to be carrying 853 on business in Hathras, Aligarh, and other places in U. P. By thus not including the proceeds of the sales of these transactions the firm evaded payment of sales tax for that year on those transactions.
The return of sales tax made by the firm was accepted by the Sales Tax Officer with the consequence that the sale of goods covered by those transactions was not taxed.
A complaint was made against the Sales Tax Officer in regard to these transactions; an enquiry was held with the result that the appellants and Romesh were prosecuted and convicted as above stated.
In the High Court there was no controversy about the facts i. e. the finding of the courts below that the appellants ' firm purchased vegetable ghee from outside U. P. and did not show the sale proceeds of the sale of those goods on the ground that they had been purchased from inside the State of ' (J. P. when in reality they had been purchased from outside the State, that the statements made by the appellant Jagannath Prasad before the Sales Tax Officer were false and that the bills produced by him before the Sales Tax officer were forged.
The conviction was challenged on grounds of law alone.
Before us five points were raised: (1) that no sales tax was exigible on these transactions under a. 3A of the Act in 1950 51 and liability arose by the amendment of the Act in 1952 which gave retroactive operation to the section and became applicable to sales in dispute and therefore there could be no prosecution under an ex post facto amendment; (2) the trial of the appellants was illegal because of ' want of complaint by the Sales Tax Officer under a. 195 of the Criminal Procedure Code; (3) there was no offence under section 14 (d) of the Act; (4) forged invoices were produced by appellant Jagannath Prasad because they were called for by the Sales Tax Officer and therefore it cannot be said.
that they were used by the appellant and (5) the Sales Tax Officer having accepted 854 he invoices as genuine no prosecution could be Entertained in regard to those invoices.
Now the appellants cannot be prosecuted on the basis of any amendment subsequent to the date of the alleged offence committed by them.
Both parties are agreed on that and therefore we have to see the Act as it stood on the date when the offence is alleged to have been committed.
According to the charge the offence was committed on or about July 16, 1951, when forged invoices produced by the appellants before the Sales Tax Officer.
So what we have to see is the law as it stood on that day.
Section 3 of the Act deals with liability to tax under the Act and section 3A with single point taxation.
Under section 3 every dealer was required to pay on his turnover of each assessment year a tax at the rate of three pies a rupee.
Thus the tax was payable in regard to all sales but under section 3A (1) the tax was leviable only at a single point.
That section provided.
section 3A (1) "Notwithstanding anything contained in section 3, the State Government may, by notification in the official Gazette, declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as may be prescribed".
The Government could declare the tax to be payable at a single point but there were two requirements; there had to be a notification in the Official Gazette declaring the point at which the tax was payable and in the series of sales by successive dealers it had to be "as may be prescribed" i. e. as may be prescribed by rules.
Section 3A was amended in 1952 with retrospective effect but retroactive provision is not applicable to the present proceedings.
Under section 3A a notification No. 1 (3) was issued on 855 June 8, 1948, declaring that the proceeds of sales of vegetable ghee imported from outside shall not be included in the turnover of the dealer other than the importer himself.
The effect of the notification thus was that if a dealer imported vegetable ghee from outside U. P. and sold it he was required to include the sale proceeds in his turnover but the other dealers who bought vegetable ghee from the importer in U. P. and sold it were not so required.
The appellants having thus imported the vegetable ghee from outside U. P. were required by the notification to include the proceeds in their turnover and it was to avoid this that they falsely produced forged invoices that they had purchased the vegetable ghee from those fictitious dealers within the State of U. P. and thus if the notification was an effective notification the appellants successfully evaded the payment of sales tax which under the law they were required to pay.
But it was agreed that the notification was ineffective in view of the words "as may be prescribed" because that could only be done by rules and no rules bad been made under section 3A which made every dealer liable to sales tax if he was an importer from outside U. P.
To this, extent the contention of the appellants is well founded and therefore under a. 3A merely by notification the Government could not prescribe a single point taxation as was done by the notification but that does not help the appellants very much.
Under section 3 every dealer was liable to pay sales tax on every transaction and section 3A only gave relief in regard to sales at every point and thus prevented multi point taxation.
If the notification under section 3A was ineffective, as indeed it was, the appellants were required to pay tax on all their sales and in order to escape multi point taxation they took advantage of an ineffective notification and tried the false plea of the goods having been imported by fictitious persons and their having purchased those goods from those 856 fictitious dealers and in this manner the appellants escapes payment of sales tax under section 3.
In other words they tried to take advantage of section 3A by producing false documents and thereby evaded payment of tax under section 3 which every dealer was required to pay on his turnover.
In trying to get the benefit under the ineffective notification issued under section 3A the appellants evaded payment of tax under section 3 which they were in any case liable to pay.
It cannot be said therefore that no offence was committed under section 14 (d) of the Act which provides: Section 14. ,Offences and penalties.
Any person who (a). . . (b). . . (c). . . (d) fraudulently evades the payment of any tax due under this Act, shall, without prejudice to this liability under any other law for the time being in force, on conviction by a Magistrate of the first class, be liable to a fine which may extend to one thousand rupees, and where the breach is a continuing breach, to a further fine which may extend to fifty rupees for every day after the first during which the breach continues".
It is no defence to say that the appellants were asked by the Sale,% Tax Officer to produce invoices.
The appellants were trying to get exclusion from their turnover of the sale of goods worth about 3 lacs and had made statements before the Sales Tax Officer in regard to it on July 9, 1951, and in order to prove that the goods 857 were not required to be included .,in the turnover the invoices were produced by appellant Jagannath Prasad.
When a fact has to be proved before a court or a tribunal and the court or the tribunal calls upon the person who is relying upon a fact to prove it by best evidence it can not be a defence as to the offence of forgery if that best evidence which, in this case, was the invoices turn out to be forged documents.
A person who produced those documents cannot be heard to say that he was required to prove his case by the best evidence and because be was so required be produced forged documents.
It was then submitted that the Sales Tax Officer was a court within a. 195 of the Criminal Procedure Code and in the absence of a complaint in writing by such an officer no cognizance could be taken of any offence punishable under section 471 of the Indian Penal Code.
This, in our opinion, is an equally erroneous submission.
The Sales Tax Officers are the instrumentalities of the State for collection of certain taxes.
Under the Act and the Rules made thereunder certain officers are appointed as Sales Tax Officers who have certain duties assigned to them for the imposition and collection of taxes land ID the process they have to perform many duties which are of a quasijudicial nature and certain other duties, which are administrative duties.
Merely because certain instrumentalities of state employed for the purpose of taxation have, in the discharge of their duties, to perform certain quasi judicial functions they are not converted into courts thereby.
In a recent judgment of this Court in Shrimati Ujjam Bai vs The State of U.P. (1), all the opinions were unanimous on this point that taxing authorities are not courts even though they perform quasi judicial functions.
The following observation of Lord (1) (1963) 1 S.C.R. 778. 858 Sankey L. C. in Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation (1)was quoted with approval : The authorities are clear to show that there "The authorities are clear to show that there are tribunals with many of the trappings of a court which, nevertheless are not courts in the strict sense of exercising judicial power".
Lord Sankey also enumerated some negative propositions as to when a tribunal is not a court.
At p. 297 his lordship said : "In that connection it may be useful to enumerate some negative propositions on this subject : 1.
A tribunal is not necessarily a Court in this strict sense because it gives a final decision.
Nor because it hears witnesses on oath.
Nor because two or more contending parties appear before it between whom it has to decide.
Nor because it gives decisions which affect the rights of subjects.
Nor because there is an appeal to a Court.
Nor because it is a body to which a matter is referred by another body.
See Rex vs Electricity Commissioners Hidayatullah J., 'in Shrimati Ujjam Bhai(2) case described Sales tax authorities thus : "The taxing authorities are instrumentalities of the State.
They are not a part of the legislature, nor are they a part of the judiciary.
Their functions are the assessment and collection of taxes and in the process of assessing taxes, they follow a pattern of action which is considered Judicial.
They are not thereby converted into Courts of Civil judicature.
They still (1) , 283.
(2) (1963) 1 S.C R. 778. 859 remain the instrumentalities of the State and are within, the definition of State" in article 12".
No doubt the Sales Tax officers have certain powers which, are similar to the powers exercised by courts. but still they are not courts as understood 'in section 195 of the Criminal Procedure Code.
In sub section 2 of B. 195 it is provided: section 195(2) "In clauses (b) and (e) of sub section.
(1) the term "Court" includes a Civil Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Indian Registration Act, 1877".
It cannot be, mid that a Sales Tax Officer, is a I Revenue Court.
Under section 2(a) of the Act an assessing authority is defined to mean any person authorised by the State Government to make assessment under the Act and under R. 2(h) 'a Sales, Tax Officer means : "Sales Tax Officer" means a Sales Tax Officer of a circle appointed by the State Government to perform the duties and exercise the powers of an assessing authority in such circle".
Thus under the Act a Sales Tax Officer is only an amassing authority.
Under section 7 of the Act, if the Sale*. Tax Officer, after making such enquiries,as he thinks necessary is, satisfied that a return made is correct and, complete, he shall assess the tax on the basis thereof ' and it no return is submitted he, can make such enquiries as he considers necessary and then determine the turnover of a dealer, Thus his determination depends upon enquiries he may make and which he may, consider necessary.
Sections 9, 10 and 11 of the Act deal with Appeals, Revisions and Statement of the Case to the High court.
Under a. 13 power.
is given 860 to a Sales Tax Officer to require the production of all accounts, documents and other information relating to business and accounts and registers ,shall be open to inspection of the Sales Tax Officer at all reasonable times.
He has the power to enter any office, shop, godown, vehicle or any other place in which business is done which is a power destructive of the Sales Tax Officer being a Court which is a place where justice is administered as between the parties whether the parties are private persons or one of the parties is the State.
Under section 23 certain secrecy is attached to documents filed before the Sales Tax officer and information received by him.
Similarly under R. 43 certain power is given to the Sales Tax Officer to calculate turnover when goods are sold for consideration other than money and this is after such enquiry as he considers necessary.
All these provisions show that the Sales Tax Officer cannot be equated with a Court.
In our opinion therefore the Sales Tax Officer is not a Court.
In Krishna vs Goverdhansiah(1), it was held that the Income Tax Officer is not law court within the meaning of section 195 of the Criminal 's Procedure Code and this view was accepted by this court in Shrimati Ujjam Bai 's(2) case.
In Brajnandan Sinha vs Jyoti Narain(3), a Commissioner appointed under the Public Enquiries Act 1950 was held not to be a court.
Shell Co. of Australia vs Federal Commissioner of Taxation (4) was referred to in that case.
At p. 967 the following passage from Halsbury 's Laws of England, Hailisham Edition, Vol. 8, p. 526 was approved: "Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness (1) A.I.R. (1954) Mad.
(2) (1963) 1 S.C.R. 778.
(3) ; (4) (1931) A.C. 275,2B3. 861 and impartiality, such as assessment committees, guardian committees, the Court of referee constituted under the Unemployment Insurance Acts to decide claims made on the Insurance funds the benchers of the Inns of Courts when considering the conduct of one of their members, the General Medical Council when considering questions affecting the position of a medical man" That passage is now contained in Vol. 9 of the 3rd Edition at p. 343.
But it was submitted that the Sales Tax officer while acting as an assessing authority is a court within the meaning of section 195 (2) of the Procedure Code because by the amendment of 1923 the definition of the word "court" was enlarged substituting the word "includes" in place of the word "means" and the section now reads as has been set out above.
Undoubtedly by this change the legislature did mean to make the definition of the word "court" wider but that does not enlarge the definition of the words "Revenue Court".
The track of decision which was pressed on our attention is based primarily on a full bench judgment of the Bombay High Court in In re Punemchand Maneklal(1).
In that case an Income tax Collector was held to be a Revenue Court within the meaning of the word as used in section 195.
The learned Chief Justice who gave the judgment of the court proceeded on the basis that inquiries conducted according to the Forms of judicial procedure under Chapter IV of the Incometax Act were proceedings in a Revenue Court.
This was on the ground that under the law as it then stood revenue questions were generally removed from the cognizance of civil courts and the officers charged with the duty of deciding disputed question relating to revenue between an individual and the (1) , Bom.
862 Government would be invested with the functions of &,,Revenue Court".
This view was followed by the Bombay High Court in State vs Nemchand Pashvir Patel After referring to the various powers which were given to the Sales Tax Officers under the B " bay Sales Tax Act that Court proceeded to say that the Sales Tax Officers under the Bombay Sales Tax Act were Revenue Courts because ' they had jurisdiction to decide Questions relating to revenue, are exclusively empowered with the powers which are normally attributes of a court or a tribunal land are authorised to adjudicate upon a disputed question of law or fact relating to the rights of the citizens.
The Madras High Court in In re B. Nataraja Iyer held that a Divisional Officer hearing appeals; under the Income tax Act was a court within the meaning of a. 476 of the Criminal Procedure Code but a Tehsildar who was the original assessing authority was not because there was no lis before him.
There is one passage in the judgment of Sundara Ayyar J., which is of significance.
It was said: "I may observe that I am prepared agree with Dr. Swaminathan that more.
authority to receive evidence would not make the officer recording it a Court".
At page 84, it was said that the determination of the assessment in the first instance may not be of a court although the assessing officer may have the power to record statements.
But an appeal against the assessment is dealt with by the Collector in the manner in which an appeal is ' disposed of by ' a Civil Court.
In this connection reference may be; made to the statement of the law contained in the judgment of Venkatarama Ayyar J., in Shri Virinder Kumar Satyawadi vs The State of Punjab (2).
There, (1) (1956)7 S.C.R. 404.
(2) , 1018.
863 the, distinction between a quasi judicial tribunal and a court,was given as follows "It may be stated broadly that what disti nguished a Court from a quasi judicial tribu nal is that it is charged with a duty to decide disputes in a judicial manner and declare, the rights of parties in a definitive judgment.
,To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.
And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law.
When a question therefore arisen as to whether an authority created by an Act is a Court as, distinguished from a quasi judicial tribunal, what has to: be decided.is whether having regard to the provisions of the Act it possesses all the attributes of a Court".
Dealing with quasi judicial tribunals it was observed in Gullapelli Negeswara Rao vs The State of Andhra Pradesh(1) : ",The concept of a quasi judicial act, implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to,conform to the norms.
of judicial procedure in performing some act in the, 'exercise of its executive power".
It is not necessary to refer to other cases because they were decided on their own facts and related to different tribunals.
In our opinion a Sales Tax Officer is not a Court within the meaning of.s.
195 of,the criminal Procedure Code and there.
fore it was not necessary for a Sales Tax Officer to (1) (1959) Supp.
1 S.C.R. 319, 353 4. 864 make a complaint and the proceedings without such a complaint are not without jurisdiction.
In our opinion the appellants were rightly convicted and we therefore dismiss this appeal.
The appellant Jagannath Prasad must surrender to his bail bonds.
Appeal dismissed.
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The appellants who carry on the business in vegetable ghee purchased vegetable ghee from outside U. P. in the name of four fictitious firms.
In their return of sales tax they did not include the sale proceeds of these transactions on the ground that they had purchased from the four firms and that under a notification made under section 3A of the U. P. Sales Tax Act, tax was leviable only at a single point on the sale by the outside suppliers to these four firms.
In support of this the appellant No. 1 made a false statement before the Sales tax Officer and also filed forged bill,.
before him.
The return was accepted by the Sales Tax Officer with the result that the sales covered by these transactions were not taxed.
The appellants were tried and convicted for offence under section 471 Indian Penal Code for using forged documents and under section 14(d) of the Act for fraudulently evading payment of tax due under the Act.
The appellants contended that the trial for the offence under section 471 was illegal as no complaint had been made by the Sales Fax Officer as required by section 14 (d) of the Act was not made out as no tax was payable under 'section 3A because the notification issued thereunder was invalid.
Held, that the Sales Tax Officer was not a Court within the meaning of section 195 Code of Criminal Procedure and it was not necessary for him to make a complaint for the prosecution of the Appellants under section 471 Indian Penal Code.
A Sales Tax Officer was merely an instrumentality of the State for purposes of assessment and collection of tax and even if he was required to perform certain quasi judicial functions, he was not a part of the judiciary.
The nature of the functions, of a Sales Tax Officer and the manner prescribed for their 851 performance showed that he could not be equated with a Court.
Nor could he be said to be a Revenue Court.
Though the definition of Court in section 195 of the Code Was enlarged by the substitution of the word "include" for the word "means" by the amendment of 1923, it did not change the definition of "Revenue Court.
" Smt.
Ujjam Bai vs The State of U. P. (1963) 1 S.C.R. 778), Shell Co. of Australia Ltd. vs Federal Commissioner of Taxation and Brajnandan Sinha vs Jyoti Narain ' ; , applied.
Krishna vs Gocerdhanaiah, A. I. R. , approved.
In re: Punamchand Maneklal (1914) 1. L. R. and State vs Nemchand Pashvir Patel, (1956) 7 section T. C. 404 not approved.
In re : R. Nataraja Iyer (1914) 1. L. R. and Shri Virender, Kumar Satyawadi vs The Sate of Punjab,[1955] 2 section C. R. 1013 referred to.
Held, further that the appellants were rightly convicted under section 14 (d) of the Act.
Sales tax was payable under s.3 of the Act in respect of all sales.
But under s.3A it was leviable only at a single point if the Government issued a notification declaring the point at which tax was payable and it was so prescribed by the rules.
Under the notification issued by the Government tax was payable only by the dealer who imported the goods and sold them.
The appellants having imported the ghee were liable to pay the tax on the sales of this ghee which they fraudulently evaded.
Though the notification was ineffective as no rules were made under the Act prescribing the single point, it did not help the appellants, as the only effect of this was that section 3A did not come into play.
In trying to get the benefit of the ineffective notification under section 3 A the appellants evaded payment of tax under section 3 which they were liable to pay.
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Versus
1.These petitions are filed challenging the
Constitutionality of Section 124 A of the Indian Penal Code 1860
(hereinafter IPC ) relating to the offence of Sedition.
2.Having heard learned Senior counsel appearing for the
parties and perusing the documents available on record, we may
observe that this matter was listed for the first time on
15.07.2021. Thereinafter, this Court, after hearing the
parties, issued notice on 27.04.2022. When this matter was next
taken up, learned Solicitor General of India prayed for
additional time of 2 to 3 days for filing of counter-affidavit.
Accordingly, time was granted till the end of the week for
filing counter-affidavit. Again, the matter was listed on
05.05.2022, wherein the Solicitor General again sought
additional time to file a counter affidavit. On that date, this
Court while granting the Solicitor General time to file counter
affidavit, directed the parties to file their written
submissions on the preliminary issue of the necessity of
reference to a larger bench prior to the next date of hearing.
3.Accordingly, on 07.05.2022, written submissions were
filed on behalf of Solicitor General of India.
4.On 09.05.2022, an affidavit was filed on behalf of Union
of India, averring as under:
“3. I state and submit that so far as Section 124A
is concerned, there are divergence of views
expressed in public domain by various jurists,
academicians, intellectuals and citizens in general.
While they agree about the need for statutory
provisions to deal with serious offences of
divisive nature affecting the very sovereignty and
integrity of the Country, acts leading to
destabilizing the government established by law by
means not authorised by law or prohibited by law.
Requiring a penal Provision for such purposes is
generally accepted by everyone in legitimate
State interest. However, concerns are raised about
its application and abuse for the purposes not
intended by law.
4. The Hon’ble Prime Minister of India has been
cognizant of various views expressed on the subject
and has also periodically, in various forums,
expressed his clear and unequivocal views in favour
of protection of civil liberties, respect for human
rights and giving meaning to the constitutionally
cherished freedoms by the people of the country. He
has repeatedly said that one of India’s strengths is
the diverse thought streams that beautifully
flourish in our country.
5. The Hon’ble PM believes that at a time when our
nation is marking ‘Azadi Ka Amrit Mahotsav’ (75
years since independence) we need to, as a nation,
work even harder to shed colonial baggage that has
passed its utility, which includes outdated colonial
laws and practices. In that spirit, the Government
of India has scrapped over 1500 outdated law since
2014-15. It has also ended over 25,000 compliance
burdens which were causing unnecessary hurdles to
people of our country. Various offences which were
causing mindless hindrances to people have been de-
criminalised. This is an ongoing process. These were
laws and compliances which reeked of a colonial mind
set and thus have no place in today’s India.
6. The Government of India, being fully cognizant of
various view being expressed on the subject of
sedition and also having considered the concern of
civil liberties and human rights, while committed to
maintain and protect the sovereignty and integrity
of this great nation, has decided to re-examine and
re-consider the provision of section 124A of the
Indian Penal Code which can only be done before the
Competent Forum.
7. In view of the aforesaid it is this respectfully
submitted that this Hon’ble Court may not invest
time in examining the validity of Section 124A once
again and be pleased to await the exercise of
reconsideration to be undertaken by the Government
of India before an appropriate forum where such
reconsideration is constitutionally.”
5.In view of the above, it is clear that the Union of India
agrees with the prima facie opinion expressed by this Court
that the rigors of Section 124A of IPC is not in tune with the
current social milieu, and was intended for a time when this
country was under the colonial regime. In light of the same,
the Union of India may reconsider the aforesaid provision of
law.
6.This Court is cognizant of security interests and
integrity of the State on one hand, and the civil liberties of
citizens on the other. There is a requirement to balance both
sets of considerations, which is a difficult exercise. The case
of the petitioners is that this provision of law dates back to
1898, and pre-dates the Constitution itself, and is being
misused. The Attorney General had also, on an earlier date of
hearing, given some instances of glaring misuse of this
provision, like in the case of recital of the Hanuman Chalisa.
7.Therefore, we expect that, till the re-examination of the
provision is complete, it will be appropriate not to continue
the usage of the aforesaid provision of law by the Governments.
8.In view of the clear stand taken by the Union of India ,
we deem it appropriate to pass the following order in the
interest of justice:
a.The interim stay granted in W.P.(Crl.)No.217/2021 along
with W.P.(Crl.)No.216/2021 vide order dated 31.05.2021
shall continue to operate till further orders.
b.We hope and expect that the State and Central Governments
will restrain from registering any FIR, continuing any
investigation or taking any coercive measures by invoking
Section 124A of IPC while the aforesaid provision of law
is under consideration.
c.If any fresh case is registered under Section 124A of IPC,
the affected parties are at liberty to approach the
concerned Courts for appropriate relief. The Courts are
requested to examine the reliefs sought, taking into
account the present order passed as well as the clear
stand taken by the Union of India.
d.All pending trials, appeals and proceedings with respect
to the charge framed under Section 124A of IPC be kept in
abeyance. Adjudication with respect to other Sections, if
any, could proceed if the Courts are of the opinion that
no prejudice would be caused to the accused.
e.In addition to the above, the Union of India shall be at
liberty to issue the Directive as proposed and placed
before us, to the State Governments/Union Territories to
prevent any misuse of Section 124A of IPC.
f.The above directions may continue till further orders are
passed.
9.List these petitions in the third week of July, 2022.
Writ Petition (Civil) No.682/2021
Writ Petition(Civil) No.1181/2021
Writ Petition(Civil) No.1381/2021
Writ Petition (Criminal) No.307/2021
Writ Petition(Criminal) No.498/2021
Writ Petition(Criminal) No.106/2021
Date : 11-05-2022 These petitions were called on for hearing today.
For Petitioner(s) Mr. Shyam Divan, Sr. Adv.
Mr. Prashant Kumar, Adv.
Mr. Anubhav Kumar, Adv.
Mr. Amarjit Singh Bedi, AOR
Ms. Riya Seth, Adv.
Mr. Varun Chandiok, Adv.
Dr. Rajiv Dhavan, Sr.Adv.
Mr. Prashant Bhushan, AOR
Mr. Arun Shourie, In-person
Mr. Rahul Gupta, Adv.
Mr. Alice Raj, Adv.
Mr. Kapil Sibal, Sr. Adv.
Mr. Nizam Pasha, Adv.
Mr. Yuvraj Singh Rathore, Adv.
Mr. Agnish Aditya, Adv.
Ms. Swati Arya, Adv.
Ms. Aparajita Jamwal, Adv.
Mr. Gopal Sankaranarayanan, Sr. Adv.
Ms. Pooja Dhar, AOR
Mr. Chitranshul Singh, Adv.
Ms. Jhanvi Dubey, Adv.
Mr. Shrutanjaya Bharadwaj, Adv.
Ms. Ishita Chowdhury, Adv.
Ms. Shivani Vij, Adv.
Ms. Tanya Srivastava, Adv.
Ms. Aditi Gupta, Adv.
Mr. Pratul Pratap Singh, Adv.
Mr. Salman Khurshid, Sr. Adv.
Mr. Fuzail Ahmad Ayyubi, AOR
Mr. Tanveer Ahmad Khan, Adv.
Mr. Tauqeer Ahmad Khan, Adv.
Ms. Jyoti Singh, Adv.
Ms. Aadya Mishra, Adv.
Ms. Kanishka Prasad, Adv.
Mr. Ibad Mushtaq, Adv .
Ms. Aparna Bhat, AOR
Ms. Karishma Maria, Adv.
Mr. Satwik Parikh, Adv.
Ms. Vrinda Grover, Adv.
Mr. Soutik Banerjee, Adv.
Ms. Mannat Tipnis, Adv.
Mr. Aakarsh Kamra, AOR
Mr. Chandar Uday Singh, Sr. Adv.
Mr. Rahul Narayan, AOR
Ms. Vrinda Bhandari, Adv.
Mr. Abhinav Sekhri, Adv.
Mr. Apar Gupta, Adv.
Mr. Tanmay Singh, Adv.
Mr. Krishnesh Bapat, Adv.
Ms. Anandita Mishra, Adv.
Ms. Natasha Maheshwari, Adv.
Ms. Amala Dasarath, Adv.
Mr. Siddharth Seem, Adv.
Mr. Satya Mitra, AOR
For Respondent(s) Mr. Tushar Mehta, SG
Mr. N. Venkatraman, ASG
Mr. Suryaprakash V.Raju, ASG
Mr. Rajat Nair, Adv.
Mr. Kanu Agrawal, Adv.
Mr. Shantnu Sharma, Adv.
Ms. Deepaabali Datta, Adv.
Mr. Madhav Sinhal, Adv.
Ms. Suhasini Sen, Adv.
Mr. Balaji Srinivasan, Adv.
Mr. Siddhant Kohli, Adv.
Mr. K. Parameshwar, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. Kaleeswaram Raj, Adv.
Mr. Mohammed Sadique T.A., AOR
Mr. Alim Anvar, Adv.
Mr. Thulasi K. Raj, Adv.
Mr. Nishe Rajen Shonker, AOR
Mr. P.V. Surendra Nath, Sr. Adv.
Mr. Subhash Chandran K.R., Adv.
Ms. Yogamaya M.G., Adv.
Ms. Resmitha R. Chandran, AOR
Mr. Arvind Datar, Sr. Adv.
Ms. Nisha Bhambhani, Adv.
Mr. Rahul Bhatia, AOR
Mr. Rahul Unnikrishnan, Adv.
Mr. Harshvardhan Kotla Adv.
Ms. Vishakha Gupta, Adv.
Mr. Rohan J. Alva, Adv.
Mr. Namit Saxena, AOR
Mr. Sharath Chandran, Adv.
Mr. Awnish Maithani, Adv.
Mr. Sudhanshu Chandra, Adv.
UPON hearing the counsel the Court made the following
For the reasons stated in the signed order , we deem it
appropriate to pass the following order in the interest of justice:
a.The interim stay granted in W.P.
(Crl.)No.217/2021 along with W.P.(Crl.)No.216/2021
vide order dated 31.05.2021 shall continue to operate
till further orders.
b.We hope and expect that the State and Central
Governments will restrain from registering any FIR,
continuing any investigation or taking any coercive
measures by invoking Section 124A of IPC while the
aforesaid provision of law is under consideration.
c.If any fresh case is registered under Section
124A of IPC, the affected parties are at liberty to
approach the concerned Courts for appropriate relief.
The Courts are requested to examine the reliefs
sought, taking into account the present order passed
as well as the clear stand taken by the Union of
India.
d.All pending trials, appeals and proceedings
with respect to the charge framed under Section 124A
of IPC be kept in abeyance. Adjudication with respect
to other Sections, if any, could proceed if the
Courts are of the opinion that no prejudice would be
caused to the accused.
e.In addition to the above, the Union of India
shall be at liberty to issue the Directive as
proposed and placed before us, to the State
Governments/Union Territories to prevent any misuse
of Section 124A of IPC.
f.The above directions may continue till further
orders are passed.
List these petitions in the third week of July, 2022.
|
In a landmark development, the Supreme Court of India on Tuesday asked the Central government and States to refrain from registering any cases for the offence of sedition under Section 124A of the Indian Penal Code [SG Vombatkere vs Union of India].
A bench of Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli directed that proceedings under Section 124A be kept in abeyance till the government's exercise of reviewing Section 124A is complete.
The bench also asked governments not to continue investigation or take coercive steps in all pending proceedings under the provision till the government's exercise is complete.
"It is clear that Central government agrees that rigours of Section 124A is not in tune with the current situation and it was intended for the time when country was under colonial law. Thus, the Centre may reconsider it. It will be appropriate not to use this provision of law till further reexamination is over. We hope and expect Central government and States will refrain from registering any FIR, continuing investigation, or taking coercive steps under Section 124A IPC when it is being reconsidered by the Centre," the Court ordered.
Should such cases be registered, the parties are at liberty to approach court and court has to expeditiously dispose of the same, the bench added.
"It would be appropriate to put the provision in abeyance," the order further said.
The Court was hearing a batch of petitions challenging the validity of the law.
The matter will be heard again in the third week of July.
The Central government had earlier submitted an affidavit before the Court stating that it has decided to re-examine and reconsider Section 124A of the Indian Penal Code (IPC) which criminalises the offence of Sedition.
It had, therefore, asked the Court to defer the hearing till the government takes a call.
When the matter was heard on Tuesday, the Court had asked the Central government whether it can issue a direction to the States to keep in abeyance all pending sedition cases till the government's exercise of reviewing Section 124A is complete.
When the case was taken up for hearing on Wednesday, Solicitor General Tushar Mehta told the Court that the Central government will issue direction to the States to scrupulously follow the order passed in Vinod Dua's case.
As per the Vinod Dua judgment, cases under 124A be registered only when concerned Superintendent of Police give reasons in writing for the same and the same will be open to challenge in court, he said.
"Once there is cognisable offence and it is held valid by constitution bench then staying the effect may not be correct course of action. that is why responsible officer must take responsibility. his satisfaction would be subject to judicial review before magistrate," SG Mehta submitted.
He also said that when there is a bail plea under 124A, it may be decided expeditiously on merits.
"Passing any other would be staying a statutory provision which is upheld by constitution bench," Mehta maintained.
Senior Counsel Kapil Sibal, appearing for the petitioners, objected to the same.
"This is wholly unacceptable to us. Entrusting a superintendent of police with responsibility is useless. If Section 124A is held as unconstitutional, then its the end," Sibal said.
Justice Kant, however, made it clear that the Court is currently hearing only on the interim arrangement and not on the merits of the provision.
"Don't argue in the air. We are not hearing on merits. What is struck down? Are we doing it today," he demanded.
Sibal then said that Section 124A has to be stayed in the interim.
"We were confronted with this yesterday and we were only considering an arrangement for the interregnum," Justice Hima Kohli observed.
Senior Advocate Gopal Sankaranarayanan appearing for the petitioners submitted to the Court a set of guidelines to be followed while urging the court to keep the operation of Section 124A in abeyance.
The bench then took time to deliberate the issue before passing its interim order.
Read live updates from the hearing here.
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Criminal Appeal No. 12 of 1978 From the Judgment and Order dated 19.4.1976 of the Andhra Pradesh High Court in Referred Trial No. 2 of 1976.
K. Ram Kumar for the Appellant.
G. Narasimhulu and S.K. Mehta for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
This appeal by special leave is against the judgment and order dated 19.4.1976 made by the High Court of Andhra Pradesh in the Referred Trial No. 2 of 1976 and Criminal Appeal Nos. 159, 168 and 169 of 1976 acquitting all the 7 accused who were convicted and sentenced by the Ses sions Court, West Godawari Division at Eluru, Andhra Pradesh in Sessions Case No. 71 of 1975.
The prosecution case in short is that on 23rd July, 1974 at 7.30 a.m. the accused persons forming themselves into an unlawful assembly in the house of the 1st accused and arming themselves with spears, sticks and crow bars attacked the deceased while he was returning from the canal carrying water in what is locally known as "Kavadi".
When the de ceased reached the house of the 1st accused, all the ten accused came from behind and the 2nd accused gave a blow with a stick on the back of the head of the deceased as a consequence of which he fell down on his back.
Then the 1st accused speared the deceased on his face and legs, the 5th accused poked the deceased on his right wrist with a crow bar and the 6th accused speared the deceased on his legs and hands.
The 329 rest of the accused then beated the deceased with sticks indiscriminately.
The deceased cried "Bobu".
This was heard by his wife (P.W.5) from her house which is situated about 150 yards.
She immediately ran to the scene of occurence and saw accused 1 to 8 and two others entering into the house of the 1st accused.
P.W. 5 then sent intimation to her brother P.W. 2 who was working as labourer in a sugar factory through P.W. 8.
P.W. 2 and others took the deceased to Bhimadole Police Station in a cart which is about 4 kms.
away from their house and lodged the F.I.R., exhibit P 1 wherein all the names of accused Nos. A1 to A4 and A6 to A8 as well as the nature of injuries inflicted on the person of the deceased were mentioned.
This FIR was registered at 9.30 a.m. and a case u/s 326 I.P.C. was registered.
Subsequently, the deceased was found dead on examination by the Doctor, P.W. 12 at the Government Hospital, Elurn.
The F.I.R. was then altered to one u/s 302 I.P.C.
The Inspector of Police made inquest of the dead body and the inquest report has been marked as exhibit P5.
All the 10 accused were charged u/s 147 I.P.C. The accused Al, A4, A5 and A6 who were armed with deadly weapons were also charged u/s 148 I.P.C. and accused A1 to A10 were charged u/s 302 read with section 149 I.P.C. They were all committed to the Court of Sessions.
The Sessions Judge after considering the entire evidence and also heating the counsel for the prosecution as well as the defence found that accused A 1 to A3 and A5 to A8 were guilty of the offence u/s 147 I.P.C. and also u/s 302 read with section 149 I.P.C. A1, A5 and A6 were also held guilty u/s 148 I.P.C.
The accused A4, A9 and A10 were however acquitted of the offence u/s 147 I.P.C. Accused A4 was also not found guilty of offence u/s 148 I.P.C. The accused A 1, A5 and A6 who were convicted u/s 302 read with section 149 I.P.C. were sentenced to death and they were directed to he hanged by their necks till their death subject to confirma tion by the High Court.
A3, A7 and A8 were convicted u/s 302 read with section 149 I.P.C. and they were sentenced to undergo imprisonment for life.
A2, was also convicted u/s 302 read with section 149 I.P.C. and he was sentenced to death and directed to be hanged by his neck till death.subject to confirmation by the High Court.
The accused A1 to A3 and A5 to A8 who were convicted u/s 147 I.P.C. were sentenced to undergo rigorous imprisonment for one year.
A1, A5 and A6 were convicted u/s 148 I.P.C. and they were sen tenced to rigorous imprisonment for two years.
All the above sentences were to run concurrently.
Against this judgment and order 3 criminal appeals being Criminal Appeal Nos.
159/1976, 168/1976 and 169/1976 were filed.
These criminal appeals along with R.T. No. 2 of 1976 were heard by the High Court of Andhra Pradesh, Hyderabad and the learned Judge by his order dated 5th May, 1976 acquitted all the accused of both the charges of rioting and murder levelled 330 against them and set aside the convictions and sentences allowing all the appeals and rejecting the reference.
It is against this judgment and order the instant appeal on special leave was filed before this court by the State.
This court granted special leave to appeal by its order dated 11.1.1978 and also ordered issue of bailable warrants against each of the accused persons in the sum of Rs.10,000 with one surety to the satisfaction of Additional Sessions Judge, Eluru.
We have heard the learned counsel for both the parties and we are constrained to hold that the judgment passed by the High Court acquitting all the accused is not a proper judgment in accordance with the provisions of Section 354 of the Code of Criminal Procedure 1973.
The learned Judge has not at all considered and marshalled the evidences examined on behalf of the prosecution particularly the evidences of PWs 1, 3, 4, 6 and 7 who were eye witnesses to the gruesome murder committed in the morning at about 7.30 a.m.
The names of all the 7 accused appeared in the F.I.R. lodged by PW 2 in the Police Station at 9.30 a.m., exhibit PI and exhibit P.23 and P.24 dated 23.7.1974.
The learned Judge did not formulate properly the points for decision and did not marshal the evidences on record and did not come to specific finding on each of the points for determination by recording specific reasons for arriving at the decision.
It is really unfortu nate that the learned Judge approached the case from wrong angle and without properly formulating the points for deci sion and without any proper appraisal of the evidences adduced by the prosecution to prove the guilt of the accused persons and also without adverting to the reasonings of the Sessions Judge, has perfunctorily come to the finding that the prosecution has failed to prove beyond doubt the case against the accused even though there are eye witnesses P.Ws. 1, 3, 4, 6 and 7 to the occurence.
In our considered opinion, this judgment is not in accordance with the mandatory requirements as laid down in Section 354 of the Code of Criminal Procedure.
We therefore, set aside the judgment and order of acquittal passed by the High Court of Andhra Pradesh and remit the ease back to the High Court, Andhra Pradesh for deciding the case in accord ance with law on a proper appraisal and marshalling of the evidences on record as early as possible.
The order of interim stay is vacated and bail bonds are cancelled.
The records be sent to the High Court forthwith.
The High Court will be free to consider whether the accused will be en larged on bail.
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The ten accused persons forming themselves into an unlawful assembly in the house of A 1 and arming themselves with spears, sticks and crow bars attacked the deceased while he was returning from the canal carrying water in 'Kavadi '.
As a result of the injuries sustained by the deceased he died.
All the ten accused were charged under section 147 I.P.C. accused A 1, A4, A5 and A 6, who were armed with deadly weapons were also charged under section 148 I.P.C. and accused A 1 to A I0 were further charged under section 302 read with section 149 I.P.C.
The trial Court acquitted A 4, A 9 and A I0 of all the charges levelled against them.
Accused A 1 to A 3 and A 5 to A 8 were convicted section 147 I.P.C. and sentenced to undergo rigorous imprisonment for one year.
Accused A I, A 5 and A 6 were convicted section 148 I.P.C. and sentenced to undergo rigorous imprisonment for two years.
Accused A 1, A 2, A 5 and A 6 were convicted u/s 302 read with section 149 I.P.C. and sentenced to death.
Accused A 3, A 7 and A 8 were also convicted section 302 read with section 149 I.P.C. but sentenced to undergo imprisonment for life.
The High Court allowed the appeals flied by the convict ed accused and acquitted all of them of the charges levelled against them and rejected the reference.
Allowing the appeal of the State to this Court, HELD: 1.
The judgment passed by the High Court acquit ting all the accused is not a proper judgment in accordance with the provisions of section 354 of the Code of Criminal Proce dure 1973.
The learned Judge has not at all considered and marshalled the evidence of witnesses examined on behalf of the prosecution particularly the evidence of PWs.
1, 3, 4, 6 and 7 who were eye witnesses to the gruesome murder commit ted in the morning at about 7.30 a.m. 328 The names of all the seven accused appeared in the F.I.R. [330 C] 2.
The learned Judge approached the case from wrong angle and without properly formulating the points for deci sions and without any proper appraisal of the evidences adduced by the prosecution to prove the guilt of the accused persons and also without adverting to the reasoning of the Sessions Judge, has perfunctorily come to the finding that the prosecution has failed to prove beyond doubt the case against the accused even though there are eye witnesses P.Ws. 1, 3, 4, 6 and 7 to the occurrence.
[330 E] 3.
The judgment of the High Court is set aside and the case is remitted back to the High Court for deciding it in accordance with law on a proper appraisal and marshalling of the evidence on record as early as possible.
[330 F G]
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No. 975 of 1986.
(Under Article 32 of the Constitution of India).
D.D. Thakur, V.C. Mahajan, section Markandaya, G.S. Rao, Sreepal Singh and Ms. Kusum Chowdhary for the Petitioners.
R N. Trivedi, S.C. Batra and Raju Ramachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The dispute in this group of writ petitions under Article 32 of the Constitution relates to allotment of land for residential purposes by New Okhla Industrial Development Authority (shortly known as 'NOIDA ').
NOIDA is a trans Jamuna housing project set up by the Uttar Pradesh Government in the year 327 1976.
Prior to the setting up of the NOIDA, the Defence Services Cooperative Housing Society Ltd. and other socie ties had acquired lands in the area for purposes of housing of their members and when the same came to be notified for acquisition for NOIDA, writ petition No. 9034 of 1983 was filed challenging the acquisition; the federation also filed a separate writ petition being 1588 of 1984.
Some other writ petitions by the different parties were also filed.
On 14th January, 1985, after hearing parties a Bench of this Court inter alia made the following directions: "Both sides presented a fair and nearly accurate picture of the present situation.
Spirit of re conciliation rather than confrontation prevailed all throughout.
All reasonable suggestions emanating from both sides either accepted or seriously considered by both sides with a view to implement ing the scheme under which plots were to be allotted.
Only three points remain which necessitated court 's intervention.
Having examined them we direct: (1) NOIDA shall hand over actual possession of plots to each allottee of each society involved in the dispute.
To identi fy them a list setting out their names has to be supplied within six weeks from today.
(2) Mr. G.L. Sanghi, learned counsel urged that NOIDA will be entitled to escalation charges for the year 1981 and 1982 which works out at the rate of Rs.20 per square metre.
He repeatedly pointed out that the NOIDA would be entitled to the same under the scheme.
May be there was substance in the submission.
However, having regard to the fact that a sum of Rs.5.50 crores has already been deposited by the allottees with the NOIDA for some time and as the scheme had not been implemented as per time schedule provided in the scheme itself, to meet possession of plot to each allottee had to be handed over some where in 1982 and which would be now done in 1985 pursuant to the directions yet without setting a precedent and having regard to the facts of this case and special circumstances pointed out to this Court with regard to the present position, we are of the opinion that the NOIDA is not entitled to escalation charges for the year 1981 and 1982.
(3) The third point of a minor difference was that a special 328 charge has to be paid by all allottees whose plots are said to be situated at a comparable advantageous position, such as, corner plots, plots abutting to the main road or both etc.
There may be advantage in taking the corner plot or a plot abutting on the road, but that is fortuitous and not be one 's volitional selection.
Having regard to the special facts of this case and the element of luck in getting a particular plot we direct that the NOIDA would not be enti tled to collect special charge or anything extra for such plots.
We order accordingly.
It was further pointed out that there were some applicants who applied for the plots but who failed to keep to the time schedule in the matter of payment.
If the number of such applicants had not been very large, the Court would have examined each case.
But the number of such applicants appears to be quite big.
Mr. Soli Sorabjee, learned counsel, in this con nection pointed out that under the interim order of this Court dated September 3, 1988, amongst others NOIDA was directed to reserve 269 acres of land in sectors 41 and 42 or in adjoining sectors in addition to the land already allotted to the petitioners.
Therefore, their cases deserve consideration as requisite area of land is available.
At the suggestion of the Court Mr. G.L. Sanghi, learned counsel agrees to appoint Shri Z.H. Kazmi, Law Assistant Registrar (Housing), Lucknow who would be specifi cally directed to look into the case of each such applicant and decide whether any one deserves allotment avoiding technical approach and by approaching the matter from the angle of social justice with broad vision.
If there is any dispute which cannot be resolved liberty to move this Court . . " On 16th December, 1985, the following order was made: "The parties are agreed that the dispute in regard to pay ment of interest and the eligibility for allotment of plots may be decided by Shri D.A. Desai, Chairman, Law Commission, as mediator and not as Arbitrator.
The parties agree that whatever decision is given by Shri D.A. Desai 329 will be accepted by them as binding and there will be no question of challenging it in any form whatsoever.
The parties also agree that simultaneous with the execution of documents possession of the plots shall be forthwith handed over to those who are admitted as eligible for allotment and interest shall be paid by them at the rate of 15% per annum from the date of the order made by this Court, namely, 2.4.1985, subject to adjustment one way or the other accord ing to the decision which may be given by Shri D.A. Desai.
" The decision contemplated by the December order took some time to be given and the report furnished to this Court came to be hotly debated.
More than three years have been taken on that account.
It is unnecessary to deal with the different problems which arose in the proceedings before this Court after submission of the report till the matter has been heard in the third week of January this year.
We suggested to Mr. Thakur, learned counsel appearing for the Federation of Co operative Housing Societies and Mr. Trivedi, learned Additional Advocate General of Uttar Pra desh appearing for NOIDA and counsel appearing for the different parties to sit across the table and work out an acceptable modality by which the problem could be best answered and we are happy to note that their efforts have been to a large extent successful and the scope of what at one time appeared to be an unending dispute had now been substantially reduced and confined to certain issues which require to be dealt with by this order of ours.
It is agreed that the total number of persons who are entitled to allotment is 2,380 and the Federation represent ing the various cooperative societies has drawn up the particulars of these 2,380 applicants.
At the hearing, counsel and NOIDA authorities present in Court had agreed to allotment of 90 acres out of the 269 acres set apart by this Court 's earlier order.
In a written note submitted by Mr. Thakur it has been brought to our notice that if their initial requirement of 130 acres is reduced to 90 acres, a plot of 112.5 square metres will have to be scaled down to 77.73; similarly a plot of 162 square metres will have to be reduced to 112.3 square metres; a plot of 202.5 square metres will have to be reduced to 140.45 square metres; and a plot of 250 square metres will have to be reduced to 173.59 square metres.
It has not been disputed that the four categories of plots were stipulated in the scheme.
If this scaling down is to be done the plots are 330 bound to be of odd sizes and working out may be difficult.
We have, therefore, decided that instead of 90 acres of land the total area to be released on that account should be 96.29 acres in all and different sizes of plots as provided in the scheme shall stand reduced to the sizes indicated below: section No. As per scheme Plots now to be allotted (Sq. metres} (Sq. metres) 1.
112.5 100 2. 162 130 3. 202 150 4.
250 180 Apart from 2,380 eligible allottees there are separate applications which are before the Court already and are being dealt with separately.
To meet their claims we are of the view that 71 decimals should also be set apart and the same would be subject to such orders as the Court may ulti mately make in these cases.
In the event of any area being unallotted the same would revert back to NOIDA.
The plots to be allotted are to be developed by NOIDA.
While the federation and the other petitioners wanted that a three months ' limit should be fixed it has been pleaded on behalf of the NOIDA that the time limit should be two years.
There is a limit to waiting and human patience and the span of the life of the applicants is not available to be extend ed by NOIDA.
Taking an overall picture of the matter we direct that a period of nine months beginning from 1st of March, 1990, is the limit within which developed plots shall be allotted to the 2,380 entitled persons now represented by the Federation and such other persons as referred to above.
The next relevant point for consideration is what should be the price to be paid.
We have already indicated that this Court in its order dated 14th January, 1985, had not agreed for any escalation charges.
More than five years have since been rolled by.
Turn of events have taken an unwieldy course.
Prices have gone up in every sphere and the rupee has lost its value over the years.
To bind NOIDA by the terms of its scheme at this point of time would not at all be fair.
We may point 331 out at this stage that these 2,380 persons have already deposited huge amounts of money said to be about five crores of rupees with NOIDA and the money has been held on account without utilisation, as no final decision had been taken.
Undoubtedly this money must be fetching interest.
Mr. Rama chandran learned counsel appearing for NOIDA has indicated that current rate per square metre is Rs. 1,200.
Taking into consideration the fact that these 2,380 members have waited too long for allotment of their plots, we are of the view that NOIDA should be permitted to charge @ Rs. 1,000 per square metre.
Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12% interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of land to be worked out @ Rs. 1,000 per square metre.
Balance amount, if any, shall have to be paid by every person included in the figure of 2,380 within three months from now in monthly instalments.
The 1st instalment is to be paid on or before 31st March, 1990; the 2nd instalment to be paid on or before 30th April, 1990; and the 3rd instalment to be paid on or before 31st May, 1990.
It shall be the obligation of the Federation to duly notify every member of the direction and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA would thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
The terms in regard to allotment for the remaining few persons as stated above shall also be the same.
Town planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member.
We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation of course shall be by NOIDA but we hope and trust that the federation of the different societies would cooperate with NOIDA in this regard.
The order reserving 269 acres of land is vacated, sub ject to the allotments indicated.
The writ petition is disposed of with these directions.
There shall be no order as to costs.
P.S.S. Petitions disposed of.
|
Certain cooperative housing societies comprising of the petitioners and others had acquired lands in the trans Jamuna area of Uttar Pradesh prior to the setting up of the New Okhla Industrial Development Authority in 1976.
When the said lands came to be notified for the Development Authority writ petitions were filed in 1983 under Article 32 of the Constitution for quashing the acquisition.
In its order dated January 14, 1985 the Court had directed the Authority to hand over actual possession of plots to allottees in volved in the dispute.
Since a dispute had arisen as to the eligibility of a large number of applicants who had failed to keep to the time schedule in the matter of payment the Court in its interim order dated September 2, 1983 had directed the Authority to reserve 269 acres of land in addition to the land already allotted.
The petitioners in the instant case belong to this category.
The total number of persons entitled to allotment has been determined at 2,380.
The Authority 's scheme for the petitioners had stipulated four sizes of plots viz. 112.5 sq. metres, 162 sq. metres, 202.5 sq. metres and 250 sq. metres.
They, therefore, claimed an area of 130 acres out of the 269 acres set apart for them.
The Authority, however, sought to reduce this area to 90 acres and the plot area to 77.73, 112.3, 140.45 and 173.53 sq. metres respectively.
Disposing of the petitions, the Court.
HELD: If the scaling down from 130 acres to 90 acres is to be done the plots are bound to be of odd sizes and work ing out may be difficult.
Therefore, instead of 90 acres of land the total area to be released on that account should be 96.29 acres and the different sizes of plots as provided in the scheme shall stand reduced to 100 sq. metres, 326 130 sq. metres, 150 sq. metres and 180 sq. metres respec tively.
71 decimals of land should also be set apart for the other applicants being dealt with separately.
The plots are to be developed by the Authority in accordance with the norms laid down, and allotted within a period of nine months beginning from 1st of March, 1990.
[329H 330F, 331F] Prices have gone up in every sphere.
To bind the Author ity by the terms of its scheme at this point of time would not at all be fair.
These 2,380 persons have already depos ited huge amounts of money said to be about five crores of rupees with the Authority and the money has been held on account without utilisation, as no final decision had been taken.
The current rate per square metre is Rs.1,200.
Taking into consideration the fact that the members have waited too long for allotment of their plots, the Authority should be permitted to charge Rs.1,O00 per square metre.
Every member who has deposited any sum of money with the Authority against proposed allotment shall ble entitled to 12% inter est on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment against actual price of land to be worked out @ Rs. 1,000 per square metre.
Balance amount, if any, shah have to be paid by every person includ ed in the figure or 2,380 within three months from the date of the order in monthly instalments.
Failure to pay any of the instalments within the time limit indicated shall dis qualify such person from allotment.
The terms in regard to allotment for the remaining few persons shall also be the same.
[330G 331E]
|
Through Mr. Vipul Lamba, Advocate
versus
Through Ms. Meenakshi Dahiya, APP for the
State with W/SI Vinod Kapoor , PS
Delhi Cantt
1. This petition under Section 482 Cr.P.C is for quashing FIR
No.275/2019 dated 30.10.2019 registered at Poli ce Station Delhi Cantt for
offences under Section 363/366/376 IPC and Section 6 of the POCSO Act.
2. Facts, in brief, leading to the instant petition are as under:
a) A missing complainant was given by one Sukhlal R/o Jhuggi
No.A -8, Kibri Palace, Delhi Cantt, s tating that his daughter
(victim/Petitioner No.2 herein) who is 16 years of age is
missing from home. It is stated that the complainant tried to
find her but was unable to find her. It is stated that one Kundan
S/o Ghanshyam (Petitioner No .1 herein), aged 21 years, who
used to reside nearby his house, has kidnapped his daughter. On
this complaint FIR No.275/2019 dated 30.10.2019 was
registered at Police Station Delhi Cantt for offences under
Section 363 IPC .
b) During the course of investigation the date of b irth of the
Victim/Petitioner No. 02 was found to be 28.12.2003 . The
victim was 16 years of age at the time of incident. Petitioner
No.1 was found to be 18 years of age at the time of incident.
c) On 10.08.2020 the mother of the Petitioner No.1 handed over
the victim/prosecutrix (Petitioner No.2 herein) to police.
Petitioner No.2 gave a statement to the Police stating that she
got married to petitioner No. 1 on 29.10.2019 in a Temple at
Mahua, U.P. However, she does not have any document s to
prove their marria ge. It was further stated by the Petitioner No.2
that she is seven months pregnant. Counselling of the victim
was done and her Medical examination was conducted on
10.08.2020 vide MLC No. 199/20 at D een Dayal Upadhayay
hospital and the v ictim was sent to N irmal Chaya shelter home.
d) On the basis of the statement of the victim and her age proof,
offences under Sections 366 & 376 IP C and Section 6 of the
POCS O Act were added. Victim's statement under Section 164
Cr.P.C. was recorded wherein she stated that she was frustrated
with the taunts of her parents and therefore she went to the
accused and they got married.
e) Petitioner No.1 was arrested on 12.08.2020 . He was granted
regular bail vide order 26.08.2020 by the learned ASJ, FTC -
POCSO Act, Patiala House Court, New Delhi.
f) On 02.09.2020 Petitioner No. 1 and Petitioner No.2 performed
formal wedding reception in presence of family and friends.
g) Charge -sheet has been filed on 11.02.2022 .
h) Petitioner No .2 delivered a baby boy on 20.10.2020.
i) Petitioner No.1 has now ap proached this Court by filing the
instant petition for quashing the abovementioned FIR on the
ground that the complainant/Respondent No.2 i.e. the father of
the victim/petitioner No.2 has accepted the marriage of
Petitioner No.1 & 2.
3. The short question whi ch arises, therefore, is whether this Court
should exercise its jurisdiction under Section 482 Cr.P.C for quashing the
FIR or not.
4. Petitioner No.1 has married Petitioner No.2/Victim. There is a child
out of the wedlock. Petitioner No.1 is 21 years of age h aving his full life
ahead of him. Petitioner No.2/Victim is only 18 years of age and is
completely dependent on the Petitioner No.1. Parents of both the sides have
accepted the marriage. This is not a case where the Petitioner No.1 has
established physical relationship forcefully and against the will of Petitioner
No.2 and fearing punishment has agreed to marry her after the filing of the
FIR. In fact Petitioner No.2 in her statement under Section 164 Cr.P.C has
categorically stated that she is in love with Petitioner No.2 and since her
parents objected to the marriage she decided to go to the Petitioner No.1 and
on her asking they got married on the very next day .
5. It is well settled that Section 482 Cr.P.C gives inherent powers to the
High Court and the pur pose of Section 482 Cr.P.C is to prevent the abuse of
the process of law and more particularly, to secure the ends of justice. The
opening words of Section 482 Cr.P.C "nothing in this Code" shows that
Section 482 Cr.P.C is an over -riding provision. These w ords indicate that
none of the provisions of the Code limits or restricts the inherent powers of
Section 482 Cr.P.C.
6. The purpose of Section 482 Cr.P.C is primarily to secure the ends of
justice. In Gian Singh v. State of Punjab , (2012) 10 SCC 303 , the Sup reme
Court has observed as under:
"55. In the very nature of its constitution, it is the
judicial obligation of the High Court to undo a wrong
in course of administration of justice or to prevent
continuation of unnecessary judicial process. This is
founde d on the legal maxim quando lex aliquid alicui
concedit, conceditur et id sine qua res ipsa esse non
potest. The full import of which is whenever anything is
authorised, and especially if, as a matter of duty,
required to be done by law, it is found imposs ible to do
that thing unless something else not authorised in
express terms be also done, may also be done, then that
something else will be supplied by necessary
intendment. Ex debito justitiae is inbuilt in such
exercise; the whole idea is to do real, co mplete and
substantial justice for which it exists . The power
possessed by the High Court under Section 482 of the
Code is of wide amplitude but requires exercise with
great caution and circumspection.
56. It needs no emphasis that exercise of inherent
power by the High Court would entirely depend on
the facts and circumstances of each case . It is neither
permissible nor proper for the court to provide a
straitjacket formula regulating the exercise of inherent
powers under Section 482. No precise and infle xible
guidelines can also be provided. " (emphasis supplied)
7. Ordinarily the High Courts must show restrain in quashing FIRs for
offences under Sections 376 IPC and POCSO Act. In the instant case the
FIR was registered under Section 363 IPC and Section 37 6 IPC and Section
6 of the POCSO Act were added later on. The victim/Petitioner No.2 has
stated in her 164 statement that she was in love with the Petitioner No.1 and
she eloped with him out of her own volition. It is stated they got married in a
temple in Uttar Pradesh on the very next day and the Petitioner No.2/victim
has given birth to a baby boy. The families of the Petitioners No.1 & 2 have
accepted the marriage.
8. Considering the fact that the whole life of Petitioner No.1 and
Petitioner No.2 and their child would be ruined , this Court asked the learned
APP as to whether she has any objections if this Court exercises its
jurisdiction under Section 482 Cr.P.C and quash the FIR . Learned APP for
the State very fairly and taking humanitarian approach stated that she has no
objections if the instant FIR is quashed.
9. In view of the peculiar facts and circumstances of this case, this Court
is inclined to quash the FIR. Resultantly, FIR No.275/2019 dated
30.10.2019 registered at Police Station Delhi Cantt for off ences under
Section 363/366/376 IPC and Section 6 of the POCSO Act and the
proceedings emanating therefrom are hereby quashed.
10. Accordingly , the petition is disposed of along with the pending
application(s), if any .
|
The Delhi High Court recently quashed a first information report (FIR) filed for rape and offences under the Protection of Children from Sexual Offences (POCSO) Act using its inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) [Kundan and anr. v State and Ors].
Justice Subramonium Prasad stated that the Court was inclined to quash the FIR and proceedings given the peculiar facts and circumstances of the case.
As per the facts of the case, the father of a minor girl had in 2019 filed a missing persons complaint alleging that the petitioner, then 18 years old, had kidnapped his then 16-year-old daughter. After the FIR was lodged, the mother of the petitioner handed over the girl to her parents. The girl gave a statement to the police that she had married the petitioner and was seven months pregnant. On the basis of her statement, charges of rape and POCSO Act offences were added to the FIR.
After the petitioner was granted bail, he and the girl performed a formal wedding ceremony in the presence of friends and family. Soon thereafter, the girl delivered a baby boy.
In this background, and in light of the fact that the father of the girl had accepted their marriage, the petitioner approached the High Court seeking quashing of the FIR.
In his order, Justice Prasad noted that Section 482 gives inherent powers to the High Court to prevent the abuse of the process of law and more particularly, to secure the ends of justice. While stating that High Courts must ordinarily show restrain in quashing FIRs for offences under Sections 376 IPC and the POCSO Act, he noted,
"The victim/Petitioner No.2 has stated in her 164 statement that she was in love with the Petitioner No.1 and she eloped with him out of her own volition. It is stated they got married in a temple in Uttar Pradesh on the very next day and the Petitioner No.2/victim has given birth to a baby boy. The families of the Petitioners No.1 & 2 have accepted the marriage."
Considering the fact that the lives of the couple and their child would be ruined if the criminal proceedings against the petitioner were to continue, the Court asked the public prosecutor if she would have any objections if it exercised its jurisdiction under Section 482 CrPC to quash the FIR.
"Learned APP for the State very fairly and taking humanitarian approach stated that she has no objections if the instant FIR is quashed," the Court noted.
In this light, the FIR was quashed.
Advocate Vipul Lamba appeared for the petitioner. Assistant Public Prosecutor Meenakshi Dahiya appeared for the State.
|
ivil Appeal No. 2581 of 1986.
Appeal by Certificate from the Judgment and Order dated 15.10.1985 of the Bombay High Court in Appeal No. 547 of 1984.
WITH Civil Appeal No. 855 of 1987.
220 From the Judgment and Order dated 8.12.1986 of the Industrial Court, Maharashtra, Bombay in Complaint (ULP) No. 1202 of 1984.
Ashok Desai, Attorney General, G.B. Pai, J. Ramamurthy, Jitendra Sharma, B.N. Dutt, H.S. Parihar, Vipin Chandra, R.F. Nariman, P.H. Parekh, N.K. Sahu, Mrs. Urmila Sirur and Raj Birbal for the appearing parties.
The Judgment of the Court was delivered by SAWANT, J.
These are two appeals involving a common question of law, viz., whether an employer has a right to deduct wages unilaterally and without holding an enquiry for the period the employees go on strike or resort to go slow.
In CA No. 2581 of 1986 we are concerned with the case of a strike while in the other appeal, it is a,case of a go slow.
By their very nature, the facts in the two appeals differ, though the principles of law involved and many of the au thorities to be considered in both cases may be the same.
For the sake of convenience, however, we propose to deal with each case separately to the extent of the distinction.
Civil Appeal No. 2581 of 1986 2.
The appellant in this case is a nationalised bank, and respondents 1 and 2 are its employees whereas respond ents 3 and 4 are the Unions representing the employees of the Bank.
It appears that some demands for wage revision made by the employees of all the banks were pending at the relevant time, and in support of the said demands the All India Bank Employees ' Association had given a call for a countrywide strike.
The appellant Bank issued a circular on September 23, 1977 to all its managers and agents to deduct wages of the employees who would participate in the strike for the days they go on strike.
Respondents 3 and 4, i.e., the employees ' Unions gave a call for a four hours strike on December 29, 1977.
Hence, the Bank on December 27, 1977 issued an Administrative Circular warning the employees that they would be committing a breach of their contract of service if they participated in the strike and that they would not be entitled to draw the salary for the full day if they did so, and consequently, they need not report for work for the rest of the working hours on that day.
Notwithstand ing it, the employees went on a four hours strike from the beginning of the working hours on 29th December 1977.
There is no dispute that the banking hours for the public covered the said four hours.
The employees, however, resumed 221 work on that day after the strike hours, and the Bank did not prevent them from doing so.
On January 16, 1978, the Bank issued a Circular directing its managers and agents to deduct the full day 's salary of those of the employees who had participated in the strike.
The respondents filed a writ petition in the High Court for quashing the circular.
The petition was allowed.
The Bank preferred a Letters Patent Appeal in the High Court which also came to be dismissed.
Hence, the present appeal.
The High Court has taken the view, firstly, that neither regulations nor awards nor settlements empowered the Bank to make the deductions, and secondly, in justice, equity and good conscience the Bank could not by the dictate of the impugned circular attempt to stifle the legitimate weapon given by the law to the workers to ventilate their griev ances by resorting to strike.
The High Court further took the view that since strikes and demonstrations were not banned in the country and despite the inconvenience that they may cause, they were recognised as a legitimate form of protest for the workers, the circular acted as a deterrent to the employees from resorting to a legally recognised mode of protest.
According to the High Court, the circular even acted as an expedient to stifle the legitimate mode of protest allowed and recognised by law.
The deduction of the wages for the day according to the Court amounted to unilat erally changing the service conditions depriving the workers of their fixed monthly wages under the contract of service.
The Court also reasoned that under the conditions of serv ice, wages were paid not from day to day or hour to hour but as a fixed sum on a monthly basis.
The contract between the Bank and the workers being not a divisible one, in the absence of a specific term in the regulations, awards and settlements, the Bank could not unilaterally reduce the monthly wage and thus give the employees lesser monthly wages than the one contracted.
The non observance by the employees of the terms of the contract may give the employer a cause of action and a right to take appropriate remedy for the breach, but the employer was not entitled to deduct any part of the wages either on a pro rata basis or otherwise.
The High Court further opined that the Bank was not without a remedy and the employees cannot hold the bank to ransom.
The Bank could get the four hours strike declared illegal by recourse to the machinery provided by law or put the erring workers under suspension for minor misconduct under Regula tion 19.7, hold an enquiry and if found guilty, impose punishment of warning, censure, adverse remarks or stoppage of increment for not more than six months as prescribed by Regulation 19.8.
The High Court also rejected the contention of the Bank that the Bank was entitled to make 222 deductions under Section 7(2) of the by holding that the provision enabled the employer to deduct wages only if the Bank had power under the contract of employment.
The principal question involved in the case, accord ing to us, is, notwithstanding the absence of a term in the contract of employment or of a provision in the service rules or regulations, whether an employer is entitled to deduct wages for the period that the employees refuse to work although the work is offered to them.
The deliberate refusal to work may be the result of various actions on their part such as a sit in or stay in strike at the work place or a strike whether legal or illegal, or a go slow tactics.
The deliberate refusal to work further may be legal or illegal as when the employees go on a legal or illegal strike.
The legality of strike does not always exempt the employees from the deduction of their salaries for the period of strike.
It only saves them from a disciplinary action since a legal strike is recognised as a legitimate weapon in the hands of the workers to redress their griev ances.
It appears to us that this confusion between the strike as a legitimate weapon in the hands of the workmen and the liability of deduction of wages incurred on account of it, whether the strike is legal or illegal, has been responsible for the approach the High Court has taken in the matter.
It is necessary to clear yet another misconception.
There is no doubt that whenever a worker indulges in a misconduct such as a deliberate refusal to work, the employ er can take a disciplinary action against him and impose on him the penalty prescribed for it which may include some deduction from his wages.
However, when misconduct is not disputed but is, on the other hand, admitted and is resorted to on a mass scale such as when the employees go on strike, legal or illegal, there is no need to hold an inquiry.
To insist on an inquiry even in such cases is to pervert the very object of the inquiry.
In a mass action such as a strike it is not possible to hold an inquiry against every employee nor is it necessary to do so unless, of course, an employee contends that although he did not want to go on strike and wanted to resume his duty, he was prevented from doing so by the other employees or that the employer did not give him proper assistance to resume his duty though he had asked for it.
That was certainly not the situation in the present case in respect of any of the employees and that is not the contention of the employees either.
Hence, in cases such as the present one, the only question that has to be considered is whether, when admittedly the employees refuse to work by going on strike, the employer is entitled to deduct wages for the relevant period or not.
We 223 thought that the answer to this question was apparent enough and did not require much discussion.
However, the question has assumed a different dimension in the present case be cause on the facts, it is contended that although the em ployees went on strike only for four hours and thereafter resumed their duties, the Bank has deducted wages for the whole day.
It is contended that in any case this was imper missible and the Bank could at the most deduct only pro rata wages.
Normally, this contention on the part of the workers would be valid.
But in a case such as the present one, where the employees go on strike during the crucial working hours which generate work for the rest of the day, to accept this argument is in effect to negate the purpose and efficacy of the remedy, and to permit its circumvention effectively.
It is true that in the present case when the employees came back to work after their four hours strike, they were not prevented from entering the Bank premises.
But admittedly, their attendance after the four hours strike was useless because there was no work to do during the rest of the hours.
It is for this reason that the Bank had made it clear, in advance, that if they went on strike for the four hours as threatended, they would not be entitled to the wages for the whole day and hence they need not report for work thereafter.
Short of physically preventing the employ ees from resuming the work which it was unnecessary to do, the Bank had done all in its power to warn the employees of the consequences of their action and if the employees, in spite of it, chose to enter the Bank 's premises where they had no work to do, and in fact did not do any, they did so of their own choice and not according to the requirement of the service or at the direction of the Bank.
In fact, the direction was to the contrary.
Hence, the later resumption of work by the employees was not in fulfilment of the con tract of service or any obligation under it.
The Bank was therefore not liable to pay either full day 's salary or even the pro rata salary for the hours of work that the employees remained in the Bank premises without doing any work.
It is not a mere presence of the workmen at the place of work but the work that they do according to the terms of the contract which constitutes the fulfilment of the contract of employ ment and for which they are entitled to be paid.
It is also necessary to state that though, before the High Court, reliance was placed by the Bank on the provi sions of Section 7(2)(b) read with Section 9 of the for a right to deduct the wages for absence from duty, there is nothing on record to show that the provisions of the said Act have been made applicable to the Bank.
However, assuming that Act was applicable to the Bank, we are of the opinion that the relevant discussion of the 224 High Court has missed the contentions urged by the Bank on the basis of the said provisions.
What was urged by the Bank was that the said provisions enabled it to deduct wages for absence from duty.
Hence, even if the Service rules/regula tions were silent on the point, the Bank could legally deduct the wages under the said provisions.
The High Court has reasoned that the power given by the said provisions come into play only when the employer has power to do so, probably meaning thereby, the power under the Service rules/regulations.
We are unable to appreciate this reason ing, which to say the least, begs the question.
It is, therefore, necessary to point out that if the Act was ap plicable, the Bank would certainly have had the power to deduct the wages under the said provisions in the absence of any service rule regulation to govern the situation.
Since the admitted position is that the service rules do not provide for such a situation, the question as stated earlier which requires to be answered in the present case, is whether there exists an implied right in the employer Bank to take action as it has done.
There is no dispute that although the service regulations do not provide for a situa tion where employees on a mass scale resort to absence from duty for whole day or a part of the day whether during crucial hours or otherwise, they do provide for treating an absence from duty of an individual employee as a misconduct and for taking appropriate action against him for such absence.
Since the High Court has indicated a disciplinary action under the said provision even in the present circum stances, we will also have to deal with that aspect.
But before we do so, we may examine the relevant authorities cited at the Bar. 8.
In Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd., ; the facts were that on 1st November, 1948 the night shift operatives of the carding and spinning department of the appellant Mills stopped work, some at 4 p.m., some at 4.30 p.m. and some at 5 p.m. and the stoppage ended at 8 p.m. in both the departments, and at 10 p.m. the strike ended completely.
The apparent cause for the strike was that the management of the Mills had expressed its inability to comply with the request of the workers to declare the forenoon of the 1st November, 1948 as a holiday for solar eclipse.
On 3rd November, 1948, the management put up a notice that the stoppage of work on the 1st November amounted to an illegal strike and a break in service within the meaning of the Factories Act and that the management had decided that the workers who had partici pated in the said strike would not be entitled to holidays with pay as provided by the Act.
The disputes having thus arisen, 225 the State Government referred the matter to Industrial Tribunal.
The Tribunal held that the workers had resorted to an illegal strike and upheld the view of the management that the continuity of service of the workers was broken by the interruption caused by the illegal strike and as a result the ' workers were not entitled to annual holidays with pay under Section 49 B(1) of the Factories Act.
The Tribunal, however, held that the total deprivation of leave with pay was a severe punishment and reduced the punishment by 50 per cent and held that the workers would be deprived of only half their holidays with pay.
In the appeal before the then Labour Appellate Tribunal, the Tribunal held, among other things, that what happened on the night of the 1st November did not amount to a strike and did not cause any interrup tion in the workers ' service.
The Tribunal observed that "It would be absurd to hold that non permitted absence from work even for half an hour or less in the course of a working day would be regarded as interruption of service of a workman for the purpose of the said section (i.e., Section 49 B(1) of the Factories Act).
We are inclined to hold that the stoppage of work for the period for about 2 to 4 hours in the circumstances of the ease is not to be regarded as a strike so as to amount to a break in the continuity of service of the workman concerned".
In the result, the Tribu nal allowed the Union 's appeal and ordered that holidays at full rates as provided for in Section 49 A of the Factories Act will have to be calculated on the footing that there was no break in the continuity of service.
This Court set aside the finding of the Appellate Tribunal by holding that it could not be disputed that there was a cessation of work by a body of persons employed in the Mills and that they were acting in combination and their refusal to go back to work was concerted, and the necessary ingredients of the defini tion of "strike" in Section 2 (q) of the Industrial Disputes Act existed and it was not a ease of an individual worker 's failure to turn up for work.
Hence, it was an illegal strike because no notice had been given to the management, the Mills being a public utility industry.
In Secretary of State for Employment vs Associated Society of Locomotive Engineers and Firemen and Ors.
(No. 2), , Lord Denning MR observed: ".
It is equally the case when he is employed as one of many 's to work in an undertaking which needs the service of all.
If he, with the others, takes steps wilfully to disrupt the undertaking to produce chaos so that it will not run as it should.
then each one who is a party to those steps is guilty 226 of a breach of his contract.
It is no answer for any one of them to say 'I am only obeying the rule book ', or 'I am not bound to do more than a 40 hour week '.
That would be all very well if done in good faith without any wilful disrup tion of services; but what makes it wrong is the object with which it is done.
There are many branches of our law when an act which would otherwise be lawful is rendered unlawful by the motive or object with which it is done.
So here it is the wilful disruption which is the breach.
It means that the work of each man goes for naught.
It is made of no effect.
I ask: is a man to be entitled to wages for his work when he, with others, is doing his best to make it useless? Surely not.
Wages are to be paid for services rendered, not for producing deliberate chaos.
The breach goes to the whole of the consideration, as was put by Lord Campbell CJ in Cuckson vs Stones, [1858] 1 E & E 248 at 255, (1983 60) All ER Rep 390 at 392 and with other cases quoted in Smith 's Leading Cases (13th Edn., Vol. 2, p. 48), the notes to Cutter vs Power, [1795] 6 Term Rep 320, (1775 1802)All ER Rep 159)".
In Miles vs Wakefield Metropolitan District Council, [ 1989] I LLJ 335 the facts were that the plaintiff, Miles was the Superintendent Registrar in the Wakefield Metropolitan District Council.
His duties included performing marriages.
As part of trade union action, he declined to perform mar riages on Saturdays which day was very popular with marrying couples.
However, on that day he performed his other duties.
The Council, not wanting to terminate his services, imposed a cut in his remuneration.
He sued the Council for payment but failed.
He appealed to the Court of Appeal and was successful.
The appellate court held that he was a statutory official and there was no contractual relation and the only action against him was dismissal.
Aggrieved by this appel late decision, the Council went before the House of Lords in appeal.
The House of Lords held that the salary payable to the plaintiff was not an honorarium for the mere tenure of office but had the character of remuneration for work done.
If an employee refused to perform the full duties which could be required of him under his contract of service, the employer is entitled to refuse to accept any partial per formance.
In an action by an employee to recover his pay, it must be proved or admitted that the employee worked or was willing to work in accordance with the contract of employ ment or that such service as was given by the employee, if falling short of.
his contractual obligations was accepted by the 227 employer as sufficient performance of the contract.
In a contract of employment wages and work go together.
The employer pays for the work and the worker works for his wages.
If the employer declines to pay, the worker need not work.
If the worker declines to work, the employer need not pay In an action by a worker to recover his pay, he must allege and prove that he worked or was willing to work.
In the instant case, the plaintiff disentitled himself to salary for Saturday morning because he declined to work on Saturday morning in accordance with his duty.
Since the employee had offered only partial performance of his con tract, the employer was entitled, without terminating the contract of employment, to decline partial performance, and in that case the employee would not be entitled to sue for his unwanted service.
In this connection, Lord Templeman stated as follows: "The consequences of counsel 's submissions demonstrate that his analysis of a contract of employment is deficient.
It cannot be right that an employer should be compelled to pay something for nothing whether he dismisses or retains a worker.
In a contract of employment wages and work go together.
The employer pays for work and the worker works for his wages.
If the employer declines to pay, the worker need not work.
If the worker declines to work, the employer need not pay.
In an action by a worker to recover his pay he must allege and be ready to prove that he worked or was willing to work . . " It may be mentioned here that on the question whether the employee engaged in some kind of industrial action can claim wages on the basis of quantum meruit, only two of the Law Lords expressed themselves in favour, while the other three did not want to express any definite opinion on the question.
Among the decisions of the various High Courts relied upon by the parties in support of the respective cass, we find that except for the decision in V. Ganesan vs The State Bank of India & Ors., given by the learned Single Judge of the Madras High Court and the deci sion of the Division Bench of the same Court in that matter and other matters decided together in State Bank of India, Canara Bank, Central Bank etc.
& Ors.
vs Ganesan, Jambuna than, Venkataraman, B.V. Kamath, V.K. Krishnamurthy, etc.
& Ors., , all other decisions, namely, (i) Sukumar Bandyo 228 padhyyay & Ors.
vs State of West Bengal & Ors., [1976] IXLIC 1689; (ii) Algemene Bank Nederland, N.V. vs Central Govern ment Labour Court, Calcutta & Ors., [1978] II LLJ, 117; (iii) V. Ramachandran vs Indian Bank, ; (iv) Dharam Singh Rajput & Ors.
vs Bank of India, Bombay & Ors., [1979]12 LIC 1079; (v) R. Rajamanickam, for himself and on behalf of other Award Staff vs Indian Bank, [1981] II LLJ 367; (vi) R.N. Shenoy & Anr. etc.
vs Central Bank of India & Ors.
, [1984] XVII LIC 1493 and (vii) Prakash Chandra Johari vs Indian Overseas Bank & Anr.
[1986] II LI J 496, have variously taken the view that it is not only permissi ble for the employer to deduct wages for the hours or the days for which the employees are absent from duty but in cases such as the present, it is permissible to deduct wages for the whole day even if the absence is for a few hours.
It is also held that the contract is not indivisible.
Some of the decisions have also held that the deduction of wages can also be made under the provisions of the and similar statutes where they are applicable.
It is further held that deduction of wages in such cases is not a penalty but is in enforcement of the contract of employment and hence no disciplinary proceedings need precede it.
Even in V. Ganesan vs The State Bank of India & Ors., (supra), it was not disputed on behalf of the employees that the employer, namely, the Bank had no fight to deduct pro rata the salary of the officers for the period of absence from duty.
What was contended there was that the Bank was not entitled to deduct the salary for the whole three days on which the employees had staged a demonstration for a duration of 30 minutes during working hours on two days and for an hour, on the third day.
The learned Judge held that by permitting the employees to perform their work during the rest of the day and by accepting such performance the bank must be deemed to have acquiesced in the breach of contract by the employees.
It is on this fact that the learned Judge held that the right to deduct salary (obviously for the whole day) on the principle of "no work no pay" could be exercised only when there was a term in the contract or when there was a statutory provision to that effect.
The Division Bench of the said Court in appeal against the said decision and similar other matters (supra) confirmed the reasoning of the learned Judge and held that in the absence of either a term in the contract of service stipulating that if an employee abstains from doing a particular work on a particu lar day, he would not be entitled to emoluments for the whole day or in the absence of a statutory provision laying down such a rule, it was impermissible for the employer to deduct or withhold the emoluments 229 of the employees even for the hours during which they worked.
Having accepted the performance of work from the employees for the rest of the day, the Banks are bound to compensate the employees for the work performed by them.
In that very case, the Court also held, on the facts arising from the other matters before it, that the refusal to per form the clearing house work can only be the subject matter of a disciplinary action and it cannot straightaway result in the withholding of the wages for the whole day.
Non signing of the attendance register and doing work is also work for which the employees should be compensated by pay ment of remuneration.
On the specific question whether the management can take action in situations, where either the contract, Stand ing Order or rules and regulations are silent, both parties relied on further authorities.
In Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Limited vs Firestone Tyre & Rubber Co., ; on which reliance was placed on behalf of the workmen it was held that under the general law of master and servant, an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice.
Mere refusal or inability to give employment to the workmen when he reports for duty, on one or more grounds mentioned in clause (kkk) of Section 2 of the Industrial Disputes Act is not a temporary discharge of the workmen.
Such a power, therefore, must be found out from the terms of the contract of service or the Standing Orders governing the establish ment Hence, even for lay off of the workmen there must be a power in the management either in the contract of service or the standing orders governing the establishment.
Ordinarily, the workmen, therefore, would be entitled to their full wages when the workmen are laid off without there being any such power.
There was no common law right to lay off the workmen, and, therefore, no right to deny the workmen their full wages.
In Krishnatosh Das Gupta vs Union of India & Ors., , it was a case of the employees of the National Test House, Calcutta who had staged demonstration after signing the attendance register to register their protest against suspension of some of their colleagues.
Though the employees signed the attendance register and attended the office, they did no work on the relevant day.
As such, a circular was issued by the Joint Director inform ing the employees that they would be considered as "not on duty".
By a subsequent circular the same Joint Director notified to all departments concerned the decision of the Cabinet that there shall not be pay for no work.
Relying on the said 230 circular the Management of the National Test House effected on a mass scale pay cut from the pay and allowances of the concerned employees.
The circular was challenged by the employees by a writ petition before the High Court.
The High Court held that in order to deduct any amount from salary, there must be specific rules relating to the contract of service of the person concerned.
On behalf of the employers, reliance was placed on a decision of this Court in Sant Ram Sharma vs State of Rajas than & Anr.; , for the proposition laid down there.that in the absence of any statutory rules or a spe cific provision in the rules, the Government can act by administrative instructions.
The Court has held there that though it is true that the Government cannot amend or super sede statutory rules by administrative instructions, if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instruc tions not inconsistent with the rules already framed.
In Roshan Lal Tandon vs Union of India, ; , this Court has stated that although the origin of Government service is contractual in the sense that there is an offer and acceptance in every case, once appointed to his post or office, the Government servant acquires a status, and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be flamed or altered unilaterally by the Govern ment.
In other words, the legal position of the Government servant is more of status than of contract.
The hallmark of status is the attachment to legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties.
The relationship between the Government and the servant is not like an ordinary contract of service between a master and servant.
The legal relationship is something entirely different, something in the nature of status.
In V.T. Khanzode & Ors.
vs Reserve Bank of India & Anr.
, ; , this Court has reiterated that so long as Staff Regulations are not flamed, it is open to issue admin istrative circulars regulating the service conditions in the exercise of power conferred by Section 7(2) of the so long as they do not impinge on any regulations made under Section 58 of the Act.
The same view with regard to power to issue administra tive instructions when rules are silent on a subject has been reiterated by the Court in Paluru Ramkrishnaiah & Ors.
vs Union of India & 231 Anr.
; , and in Senior Superintendent of Post Office & Ors.
vs Izhar Hussain, ; 11.
The principles which emerge from the aforesaid authorities may now by stated.
Where the contract, Standing Orders or the service rules/regulations are silent on the subject, the management has the power to deduct wages for absence from duty when the absence is a concerted action on the part of the employees and the absence is not disputed.
Whether the deduction from wages will be pro rata for the period of absence only or will be for a longer period will depend upon the facts of each case such as whether where was any work to be done in the said period, whether the work was in fact done and whether it was accepted and acquiesced in, etc.
It is not enough that the employees attend the place of work.
They must put in the work allotted to them.
It is for the work and not for their mere attendance that the wages/salaries are paid.
For the same reason, if the employ ees put in the allotted work but do not, for some reason may be even as a protest comply with the formali ties such as signing the attendance register, no deduction can be effected from their wages When there is a dispute as to whether the employees attended the place of work or put in the allotted work or not, and if they have not, the reasons therefore etc., the dispute has to be investigated by holding an inquiry into the matter.
In such cases, no deduction from the wages can be made without establishing the omission and/or commission on the part of the employees concerned.
When the contract, Standing Orders, or the service rules/regulations are silent, but enactment such as the providing for wage cuts for the absence from duty is applicable to the establishment concerned, the wages can be deducted even under the provisions of such enactment.
Apart from the aforesaid ratio of the decisions and the provisions of the and similar statutes on the subject, according to us, the relevant provisions of the major legislation governing the industrial disputes, viz., the also lend their support to the view that the wages are payable pro rata for the work done and hence deductible for the work not done.
Section 2 (rr) of the said Act defines "wages" to mean "all remuneration . which would, if terms of employ ment, expressed or implied, were fulfilled, be payable to workman in respect of his employment or work done in such employment . " while Section 232 2(q) defines "strike" to mean "cessation of work" or "refus al to continue to work or accept employment by workman".
Reading the two definitions together, it is clear that wages are payable only if the contract of employment is fulfilled and not otherwise.
Hence, when the workers do not put in the allotted work or refuse to do it, they would not be entitled to the wages proportionately.
The decisions including the one impugned in this appeal which have taken the view which is either contrary to or inconsistent with the above conclusions, have done so because they have proceeded on certain wrong presumptions.
The first error, as we have pointed out at the outset, is to confuse the question of the legitimacy of the strike as a weapon in the workers ' hands with that of the liability to lose wages for the period of strike.
The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right.
However, the legislation also circumscribes this right by prescribing conditions under which alone its exercise may become legal.
Whereas, therefore, a legal strike may not invite disciplinary proceedings, an illegal strike may do so, it being a misconduct.
However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike.
The liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it.
When workers resort to it, they do so knowing full well its consequences.
During the period of strike the contract of employment continues but the workers withhold their labour.
Consequently, they cannot expect to be paid.
The second fallacy from which the said decisions suffer is to view the contract of employment as an indivisible one in terms of the wageperiod.
When it is argued that the wages cannot be deducted pro rata for the hours or for the day or days for which the workers are on strike because the con tract, which in this case is monthly, cannot be subdivided into days and hours, what is forgotten is that, in that case if the contract comes to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the proportionate payment for the part of the month he served.
This was the iniquitous and harsh conse quence of the rule of indivisibility of contract laid down in an English case, Cutter vs Powell, [1795] 6 TR 320 which was rightly vehemently criticised and later, fortunately not followed.
If the employment contract is held indivisible, it will be so for both the parties.
We are also unable to see any difficulty, inequity or impracticability in construing the contract as divisible into different 233 periods such as days and hours for proportionate reimburse ment or deduction of wages, which is normally done in prac tice.
The third fallacy was to equate disputed individual conduct with admitted mass conduct.
A disciplinary proceed ing is neither necessary nor feasible in the latter case.
The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed.
As things stand today; they do not provide a remedy for mass misconduct which is admitted or cannot be disputed.
Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper.
The service conditions are not expect ed to visualise and provide for all situations.
Hence, when they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so.
The pro rata deduction of wages is not an unreasonable exercise of power on such occasions.
Whether on such occasions the wages are deductible at all and to what extent will, howev er, depend on the facts of each case.
Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for tile whole day.
On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiesce in it.
In that case the employer may not be entitled to deduct wages at all or be entitled to deduct them only for the hours of strike.
If further statutes such as the or the State enactments like the Shops and Establishments Act apply, the employer may be justified in deducting wages under their provisions.
Even if they do not apply, nothing prevents the employer from taking guidance from the legisla tive wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is relent on the subject.
It is, however, necessary to reiterate that even in cases such as the present one where action is resorted to on a mass scale, some employees may not be a party to the action and may have genuinely desired to discharge their duties but could not do so for failure of the management to give the necessary assistance or protection or on account of other circumstances.
The management will not be justified in deducting wages of such employees without holding an in quiry.
That, however, was not the grievance of any of the employees in the present case, as pointed out earlier.
234 15.
Hence, we are unable to sustain the impugned deci sion which is untenable in law.
The decision is accordingly set aside with no order as to costs.
Civil Appeal No. 855 of 1987 16.
The facts in this case are different from those in the earlier appeal.
In this case, the allegation of the employer Company is that the workers had indulged in "go slow" and as a result there was negligible production in the month of July 1984.
The workers did not attend to their duty and only loitered in the premises and indulged in go slow tactics only with a view to pressurise the Company to con cede demands.
The Company was, therefore, compelled to suspend its operation by giving a notice of lock out.
Ac cording to the Company, therefore, since the workers had not worked during all the working hours, they had not earned their wages.
Hence, the Company did not pay the workers their wages for the entire month of July 1984.
The workers ' Union, therefore, filed a complaint before the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act, for short) complaining that the Company had indulged in unfair labour practice mentioned in Item 9 of Schedule 4, from 7th August, 1984 which was the date for payment of salary for the month of July 1984, and under Item 6 of Schedule 2 of the Act with effect from 14th August, 1984 since the Company had declared a lock out from that day.
It was also alleged that since no specific date of the com mencement of the alleged lock out had been specified, it was an illegal one.
It appears that the Company had declared the lock out by notice dated July 30, 1984 and the lock out was effected from August 14, 1984.
Subsequently, there were negotiations between the Union and the Company, and a set tlement was reached on October 15, 1984 as a result of which the lock out was lifted with effect from October 16, 1984.
The terms of the settlement were formally reduced to writing on November 30, 1984.
In this appeal, we are not concerned with the lock out and the subsequent settlement.
The question that falls for consideration before us is whether the Company was justified in denying to the workers the full monthly wages for the month of July 1984.
On this question, the Industrial Court accepted the oral testimony of the Company 's witnesses that the workmen had not at all worked for full eight hours on any day in July 1984 and that they were working intermit 235 tently only for some time and sitting idle during the rest of the day.
On an average the workers had not worked for more than one hour and 15 to 20 minutes per day, during that month.
The Industrial Court did not accept the evidence of the Union 's witness that the witness and the other workmen had worked on all the days during the entire month of July 1984 because he admitted that after the Company told the workers that it could not concede to the demands, the work ers had started staging demonstration.
Although the witness denied that from July 3, 1984, the workers started indulging in go slow, he admitted that the Company was displaying notices from time to time with effect from July 4, 1984 alleging that the workers were not giving production and that they were loitering here and there.
According to the Industrial Court in the circumstances, it did not see any good reason to disbelieve the Company 's witnesses.
The Court further held that normally in view of this evidence on record, it would have held that the pro rata deduction of wages made by the Company for the month of July 1984 would not amount to an act of unfair labour practice falling under Item 9 of Schedule IV of the MRTU and PULP Act.
However, in view of the two judgments of the Bombay High Court in T.S. Kelwala & Ors.
vs Bank of India & Ors., i.e. the one impugned in the earlier appeal and Apar (Pvt) Limited vs
S.R. Samant & Ors., [1980] II LLJ 344, the Court had to hold that the non payment of full wages to the work men for the month of July 1984 was an act of unfair labour practice falling under the said provision of the Act.
The Court further held that admittedly the workers were not piece rated and there was no agreement or settlement allow ing the Company to deduct wages on the ground that they were indulging in "go slow" or that they had not given normal production.
According to the Court, the remedy of the Compa ny against the workmen may lie elsewhere.
Thus, the Court taking sustenance from the Bombay High Court Judgments referred to above held that the deduction of wages during the month of July, 1984 on account of the go slow was not justified, and declared that the Company had committed an unfair labour practice by not paying full monthly wages to the workmen, and directed the Company to pay the said wages for the month of July 1984.
It is this order of the Indus trial Court which is challenged directly in this Court by the present appeal.
Since one of the two decisions of the Bombay High Court on which the Industrial Court relied was rendered in another context and it has already been discussed in the other appeal, we may refer here only to the other decision, viz., Apar (Pvt) Ltd. vs S.R. Samant & Ors.
, (supra) which is pressed in service before us on behalf of the workmen.
The facts in that case were that by a settlement dated Au 236 gust 3, 1974 the workmen were allowed increase in the basis wages, dearness allowance, house rent, etc.
in addition to the production bonus in terms of a scheme.
That settlement was binding on the parties upto the end of April 1977.
The matters ran a smooth course till August 1975.
However, from September 1975, the Company refused to pay the production bonus and with effect from 15th October, 1975 it refused to pay the wages, dearness allowances etc.
as per the settle ment.
On August 21, 1975, a notice was put up by the Company starting that because of the attitude of indiscipline on the part of the workers and deliberate go slow tactics resulting in low production, the management was relieved of its com mitments and obligation imposed upon it by the settlement.
A notice in terms of Section 9A of the was also put up indicating a certain scale of wages to which only the workers would be entitled.
These wages were not more than the wages under the Minimum Wages Act and were even less than what was agreed to in the earli er agreement of January 23, 1971.
A complaint was, there fore, filed under the MRTU & PULP Act before the Industrial Court, and the Industrial Court recorded a finding that the figures of production produced by the Company before it related only to few departments.
Out of total of 700 employ ees who were working earlier, 116 were retrenched at the relevant time.
The Company 's allotment of material, viz., aluminium was also reduced from 7390 metric tones to 2038 and there was no supply of even that allotted quantity.
The Court further referred to certain inconsistent statements made by the factory manager and held that the management had failed to discharge the burden of proof of justifying the drastic reduction of the wages and other emoluments.
The Court therefore recorded a finding that the Company had engaged in an unfair labour practice.
Against the said decision, the Company preferred a writ petition before the High Court.
The High Court on these facts held that the wages could be deducted only in terms of a statutory provi sion or of a settlement.
A reduction of wages on the allega tion that the workers in general had resorted to go slow was wholly impermissible in law specially when the workmen were not piece rated employees.
The High Court referred to the cases where reduction of wages for absence from duty for striking work was held as valid such as Major Kanti Bose & Ors.
vs Bank of India & Ors., (supra); V. Ramachandran vs Indian Bank, (supra) and Algemene Bank, Nederland vs Central Government Labour Court, Calcutta, (supra) and held that those cases were distinguishable because they related to absence from duty and not go slow.
In M/s. Bharat Sugar Mills Ltd. vs Shri Jai Singh & Ors., [1962] 3 237 SCR 684 the facts were that certain workmen of the appel lant Mills resorted to "go slow".
The appellant Mills held a domestic inquiry and as a result thereof decided to dismiss 21 workmen, and apply to the Industrial Tribunal under Section 33 of the for permission to dismiss the workmen.
Evidence was laid before the Tribunal to prove the charge against the workmen.
The Tribunal held that the domestic enquiry was not proper, that the appellant was guilty of mala fide conduct and victimisation, that except in the case of one workman, the others were guilty of deliberate go slow and accordingly granted permission in respect of the one workman only.
It is against the said decision that the appellant Mills had approached this Court.
This Court held that the evidence produced before the Tribu nal clearly established that 13 out of the 20 workmen were guilty of deliberate go slow and in that connection observed as follows: "Go slow which a picturesque description of deliberate delaying of production by workmen pretending to be engaged in the factory is one of the most pernicious practices that discontended or disgruntled workmen sometime resort to.
It would not be far wrong to call this dishonest.
For, while thus delaying production and thereby reducing the output the workmen claim to have remained employed and thus to be entitled to full wages.
Apart from this also, "go slow" is likely to be much more harmful than total cessation of work by strike.
For, while during a strike much of the machinery can be fully turned off, during the "go slow" the machinery is kept going on a reduced speed which is often extremely damaging to machinery parts.
For all these reasons "go slow" has always been considered a serious type of misconduct." This Court, therefore, set aside the order of the Tribunal refusing permission to dismiss 13 of the workmen.
There cannot be two opinions that go slow is a serious misconduct being a covert and a more damaging breach of the contract of employment.
It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work.
It has been roundly condemned as an industrial action and has not been recognised as a legit imate weapon of the workmen to redress their grievances.
In fact the model standing orders as well as the certified standing orders of most of the industrial establishments define it as a misconduct and provide for a disciplinary action for it.
Hence, once it is 238 proved, those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service.
But by its very nature, the proof of go slow, particu larly when it is disputed, involves investigation into various aspects such as the nature of the process of produc tion, the stages of production and their relative impor tance, the role of the workers engaged at each stage of production, the pre production activities and the facilities for production and the activities of the workmen connected therewith and their effect on production, the factors bear ing on the average production etc.
The go slow further may be indulged in by an individual workman or only some workmen either in one section or different sections or in one shift or both shifts affecting the output in varying degrees and to different extent depending upon the nature of product and the productive process.
Even where it is admitted, go slow may in some case present difficulties in determining the actual or approximate loss, for it may have repercussions on production after the go slow ceases which may be difficult to estimate.
The deduction of wages for go slow may, there fore, present difficulties which may not be easily resolu ble.
When, therefore, wages are sought to be deducted for breach of con tract on account of go slow, the quantum of deduction may become a bone of contention in most of the cases inevitably leading to an industrial dispute to be adjudicated by an independent machinery statutory or other wise as the parties may resort to.
It is necessary to empha size this because unlike in this case of a strike where a simple measure of a pro rata deduction from wages may pro vide a just and fair remedy, the extent of deduction of wages on account of a go slow action may in some case raise a complex question.
The simplistic method of deducting uniform percentage of wages from the wages of all workmen calculated on the basis of the percentage fail in production compared to the normal or average production may not always be equitable.
It is, therefore, necessary that in all cases where the factum of go slow and/or the extent of the loss of production on account of it, is disputed, there should be a proper inquiry on charges which furnish particulars of the go slow and the loss of production on that account.
The rules of natural justice require it, and whether they have been followed or not will depend on the facts of each case.
In the present case, the Industrial Court, as point ed out earlier, has accepted the evidence of the witness of the Company that the workmen had not worked for full eight hours on any day in the month concerned, namely, July 1984, and that they were working intermittently only for sometime and were sitting idle during the rest 239 Of the time.
According to him, the workers had worked hardly for an hour and 15 to 20 minutes on an average during the said month.
The witness had also produced notices put up by the Company from time to time showing the daily fall in the production and calling upon the workmen to resume normalcy.
There is further no dispute that the copies of these notices were sent to the Union of the workmen as well as to the Government Labour Officer.
The Industrial Court did not accept the evidence of the workmen that there was no go slow as alleged by the Company.
Accordingly, the Industrial Court has recorded a finding that the pro rata deduction of wages made by the Company for the month of July 1984 did not amount to an act of unfair labour practice within the mean ing of the said Act.
It does not further appear from the record of the proceedings before the Industrial Court that any attempt was made on behalf of the workmen to challenge the figures of production produced by the Company.
These figures show that during the entire month of July 1984, the production varied from 7.06 per cent of 13.9 per cent of the normal production.
The Company has deducted wages on the basis of each day 's production.
In view of the fact that there is a finding recorded by the Industrial Court that there was a go slow resorted to by the workmen and the production was as alleged by the Company during the said period, which finding is not challenged before us, it is not possible for us to interfere with it in this appeal.
As stated above, all that was challenged was the right of the employer to deduct wages even when admittedly there is a go slow which question we have answered in favour of the employer earlier.
The question with regard to the quantum of deduction from the wages, therefore, does not arise before us for consideration.
It is, however, likely that the work men did not question the figures of production before the Industrial Court because they were armed with the two deci sions of the High Curt (supra) which according to them, had negatived the right of the employer to deduct wages even in such circumstances.
While, therefore, allowing the appeal, we direct that the appellant will not deduct more than 5 per cent of the wages of the workmen for the month of July 1984.
The appeal is allowed accordingly with no order as to costs.
G.N. Appeals allowed.
|
In the former appeal, the appellant is a nationalised Bank.
In 1977, some demands for wage revision made by the employees of all Banks were pending and in support of their demands, a call for a country wide strike was given.
The appellant Bank issued a Circular on September 23, 1977 to its managers and agents directing them to deduct wages of the employees for the days they go on strike.
The respondent Unions gave a car for a four hour strike on December 29, 1977.
Two days before the strike, the appellant Bank issued an Administrative Circular warning the employees that if they participate in the strike, they would be committing a breach of their contract of service and they would not be entitled to salary for the full day and they need not report for work for the rest of the working hours on that day.
However, the employees went on strike as scheduled, for four hours which included banking hours of the public, and re sumed duty thereafter.
The appellant Bank did not prevent them from doing so.
The appellant Bank by its circular di rected the managers and agents to deduct the full day 's salary of those employees who participated in the strike.
On a writ petition filed by the respondents, the High Court quashed the said Circular.
The Letters Patent Appeal filed by the appellant was dismissed.
Hence, the appeal by the Bank.
In the latter appeal, the appellant is a company whose workers had indulged in "go slow" in July 1984, thereby bringing down production.
The workers did not attend to their work and were loitering in the premises and were indulging in go slow tactics to pressurise the 215 company to concede their demands.
The company suspended its operation by giving a notice of lock out.
It did not pay wages to the workers for July , 1984 on the ground that they did not work during all the working hours and had not their wags.
The workers ' union filed a complaint before the Indus trial Court complaining that the appellant company had indulged in unfair labour practice and that the lock out declared was illegal The Industrial Court held that the deduction of wages for July, 1984 on account of the go slow was not justified It also declared that the company had committed an unfair labour practice by not paying full monthly wages to the workers and directed the company to pay the said wages for the month of July, 1984.
Aggrieved, the appellant company has preferred the appeal.
Allowing the appeals, this Court, HELD: 1.1 There is no doubt that whenever a worker indulges in a misconduct such as a deliberate refusal to work, the employer can take disciplinary action against him and impose on him the penalty prescribed for it which may include some deduction from his wages.
However, when miscon duct is not disputed but is, on the other band, ' admitted and is resorted to on a mass scale such as when the employ ees go on strike, legal or illegal, there is no need to hold an inquiry.
To insist on an inquiry even in such cases is to pervert the very object of the inquiry.
In a mass action such as strike it is not possible to hold an inquiry against every employee nor is it necessary to do so unless, of course, an employee contends that although he did not want to go on strike and wanted to resume his duty, he was pre vented from doing so by the other employees or that the employer did not give him proper assistance to resume his duty though he had asked for it.
That was certainly not the situation in the present case in respect of any of the employees and that is not the contention of the employees either.
It is true that in the present case when the employ ees came back to work after their four hours strike, they were not prevented from entering the Bank premises.
But admittedly, their attendance after the four hours strike was useless because there was no work to do during the rest of the hours.
It is for this reason that the Bank had made it clear, in advance, that if they went on strike for the four hours as threatened, they would not be entitled to the wages for the whole day and hence they need not report for work thereafter Short of physically preventing the employ ees from resuming the work which it was unnecessary to do, the Bank had done all hi its power to warn the employees of the consequences of their action and if the employees, in spite of it, chose to enter the Bank 's premises where they had no work to do, and in fact did not 216 do any, they did so of their own choice and not according to the requirement of the service or at the direction of the Bank.
In fact, the direction was to the contrary.
Hence, the later resumption of work by the employees was not in fulfil ment of the contract of service or any obligation under it.
The Bank was therefore not liable to pay either full day 's salary or even the pro rata salary for the hours or work that the employees remained in the Bank premises without doing any work.
It is not a mere presence of the workmen at the place of work but the work that they do according to the terms of the contract which constitutes the fulfilment of the contract of employment and for which they were entitled to be paid.
[222E H; 223A F] 1.2 Although the service regulations do not provide for a situation where employees on a mass scale resort to ab sence from duty for whole day or a part of the day whether during crucial hours or otherwise they do provide for treat ing an absence from duty of an individual employee as a misconduct and for taking appropriate action against him for such absence.
[224D E] 2.1.
When the contract, Standing Orders, or the service rules/ regulations are silent, but enactment such as the payment of Wages Act providing for wage cuts for the absence from duty is applicable to the establishment concerned, the wages can be deducted even under the provisions of such enactment.
[231F] 2.2.
The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right.
However, the legislation also circumscribes this right by prescribing conditions under which alone its exercise may become legal.
Whereas, there fore, a legal strike may not invite disciplinary proceed ings, an illegal strike may do so, it being a misconduct.
However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike.
The liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it.
When workers resort to it, they do so knowing full well its consequences.
During the period of strike the contract of employment continues but the workers withhold their labour.
Consequently, they cannot expect to be paid.
[232C E] 2.3.
The contract, which is this case is monthly, cannot be subdivided into days and hours.
If the contract comes to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the proportionate payment for the part of the month 217 he served.
If the employment contract is held indivisible, it will be so for both the parties.
There is no difficulty, inequity or impracticability in construing the contract as divisible into different periods such as days and hours for proportionate reimbursement or deduction of wages, which is normally done in practice.
[232G H; 233A] 2.4.
The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed.
As things stand today, they do not provide a remedy for mass misconduct which is admit ted or cannot be disputed.
Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper.
The service conditions are not expect ed to visualise and provide for all situations.
When they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so.
The pro rata deduction of wages is not an unreasonable exercise of power on such occasions.
Whether on such occasions, the wages are deductable at all and to what extent will, howev er, depend on the facts of each case.
Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for the whole day.
On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiense in it.
In that case the employer may not be entitled to deduct wages at all or be entitled to deduct only for the hours of strike.
If statutes such as the or the State enactments like the Shops and Establishments Act apply, the employer ,may be justified in deducting wages under their provisions.
Even if they do not apply, nothing prevents the employer from taking guidance from the legisla tive wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is silent on the subject.
[233B F] V.T. Khanzode & Ors.
vs Reserve Bank of India & Anr., ; ; Paluru Ramkrishnaiah & Ors. etc.
vs Union of India & Anr.
; , and Senior Superin tendent of Post Office & Ors.
vs lzhar Hussain; , , relied on.
Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd., ; ; V. Ganesan vs The State Bank of India & Ors., ; State Bank of India, Canara Bank, Central Bank etc.
& Ors.
vs Ganesan, Jambunathan, Venkatara 218 man, B.V. Kamath, V.K. Krishnamurthy, etc.
& Ors.
, ; Sukumar Bandyopadhyyay & Ors.
vs State of West Bengal & Ors., [1976] IX LIC 1689; Algemene Bank Nederland, N.V. vs Central Government Labour Court, Calcutta & Ors., [1978] II LLJ, 117; V. Ramachandran vs Indian Bank, [1979] I LLJ 122; Dharam Singh Rajput & Ors.
vs Bank of India, Bombay & Ors.
, ; R. Rajamanickam, for himself and on behalf of other Award Staff vs Indian Bank, [1981] II LLJ 367; R.N. Shenoy & Anr. etc.
vs Central Bank of India & Ors.
, [1984] XVII LIC 1493; Prakash Chandra Johari vs Indian Overseas Bank & Anr., [1986] II LLJ 496; Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Ltd. vs Firestone Tyre & Rubber Co., ; ; Krishnatosh Das Gupta vs Union of India & Ors., ; Sant Ram Sharma vs State of Rajasthan & Anr., ; ; Roshan Lal Tandon vs Union of India, ; ; Secretary of State for Employment vs Associated Society of Locomotive Engineers and Firemen and Ors.
(No. 2), ; Miles vs Wakefield Metropolitan District Council, [1989] I LLJ 335 and Cutter vs Pwell, [1795] 6 TR 320, referred to.
There cannot be two opinions that go slow is a serious misconduct being a covert and a more damaging breach of the contract of employment.
It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work.
It has been roundly condemned as an industrial action and has not been recognised as a legit imate weapon of the workmen to redress their grievances.
In fact the model standing orders as well as the certified standing orders of most of the industrial establishments define it as a misconduct and provide for disciplinary action for it.
Hence, once it is proved.
those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service.
[237G H; 238A] 3.2.
The proof of go slow, particularly when it is disputed, involves investigation into various aspects such as the nature of the process of production, the stages of production and their relative importance, the role of the workers engaged at each stage of production, the pre produc tion activities and the facilities for production and the activities of the workmen connected therewith and their effect on production, the factors hearing on the average production etc.
The go slow further may be indulged in by an individual workman or only some workmen either in one sec tion or different sections or in one shift or both shifts affecting the output in varying degrees and to different extent depending upon the nature of product and the produc tive process.
Even where it is admitted, go slow may in some case present 219 difficulties in determining the actual or approximate loss, for it may have repercussions on production after the go slow ceases which may be difficult to estimate.
The deduc tion of wages for go slow may, therefore, present difficul ties which may not be easily resoluble.
When, therefore, wages are sought to be deducted for breach of contract on account of go slow, the quantum of deduction may become a bone of contention in most of the cases inevitably leading to an industrial dispute to he adjudicated by an independent machinery statutory or otherwise as the parties may resort to.
The simplistic method of deducting uniform percentage of wages from the wages of all workmen calculated on the basis of the percentage fail in production compared to the normal or average production may not always be equitable.
It is, therefore, necessary that in all cases where the factum of go slow and/or the extent of the loss of production on account of it, is disputed, there should he a proper inquiry on charges which furnish particulars of the go slow and the loss of production on that account.
The rules of natural justice require it, and whether they have been followed or not will depend on the facts of each case.
[238B G] 3.3.
In the instant case, there is a finding recorded by the Industrial Court that there was a go slow resorted to by the workmen resulting in loss of production during the said period.
Since the said finding is not challenged, it is not possible to interfere with it in this appeal.
Though the appellant is justified in deducting wages for the said period, in the facts and circumstances of the case it is directed that it will not deduct more than 5 per cent of the wages of the workmen for the month of July, 1984 when they indulged in go slow tactics.
[239D F] M/s. Bharat Sugar Mills Ltd. vs Shri Jai Singh & Ors., ; T.S. Kelwala & Ors.
vs Bank of India & Ors., and Apar (Pvt) Ltd. vs
S.R. Samant & Ors., [1980] II LLJ 344, referred to.
|
1. On 10th February 2020, for the reasons recorded, a Bench of two Hon’ble judges of
this Court came to the conclusion that the view taken by this Court in the case of State of
Uttar Pradesh v. Preetam Singh & Ors.1 (Preetam Singh’s case) needs reconsideration.
Under Section 3 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for
short ‘the 1965 Act’), Uttar Pradesh Avas Evam Vikas Parishad (for short ‘the Board’) was
established. The basic object of the establishment of the Board was of framing and
executing housing and improvement schemes in the State of Uttar Pradesh. The core
issue on which the reference is made to a larger Bench is whether the act of determining
service conditions of the employees and officers of the Board is one of the statutory
functions of the Board.
2. On 21st February 1995, the Board resolved to extend the pensionary benefits to its
employees by replacing the existing Contributory Pension Scheme (for short ‘the old
pension scheme’) with a pension/family pension/gratuity scheme (for short ‘the new
pension scheme’). On 16th May 1996, the State Government accorded its consent to the
new pension scheme subject to the condition that the Board will not be entitled to seek
any financial assistance for the implementation of the new pension scheme.
3. By a Resolution dated 5th November 1997, the Board approved the new pension
scheme. The new pension scheme was based on the pension scheme of the State
Government applicable to civil servants. On 26th November 1997, State Government
passed an order staying the implementation of the new pension scheme. It appears that
the State Government appointed a committee of experts to examine the new pension
scheme of the Board. After considering the report of the committee of experts, the State
Government vide order dated 14th September 1999 vacated the stay granted earlier by
imposing a condition that the scheme shall be funded from the contribution to provident
fund made by the Board and that neither the State Government nor the Board shall incur
financial liability by implementing the new pension scheme.
4. Preetam Singh and others who were the employees of the Board, filed a writ
petition in Allahabad High Court. The prayer in the petition was initially confined to the
challenge to the Government Order dated 14th September 1999. During the pendency of
the said petition, on 7th May 2003, the State Government reiterated its earlier stand of
granting no objection to the new pension scheme subject to the condition that no financial
assistance shall be provided to the Board for implementing the said scheme. On 16th
January 2004, the Board by an office order gave an option to its employees of either opting
for the new pension scheme or continuing with the old pension scheme. In terms of the
option given by the Board, according to the case of the State Government, 582 employees
opted for the old pension scheme by filing necessary undertakings. On 13th September
2005, the State Government issued an order keeping its communication dated 7th May
2003 in abeyance on the ground that it was preparing comprehensive guidelines regarding
the payment of pension to the employees of Public Sector Enterprises. By a
communication dated 12th July 2007, the State Government purported to withdraw the
approval granted earlier to the new pension scheme of the Board. The writ petition filed
by Preetam Singh and others was amended and a challenge to the orders dated 13th
September 2005 and 12th July 2007 was incorporated in the petition. During the pendency
of the petition filed by Preetam Singh and others, the State Government issued an office
memorandum dated 8th December 2008 for applying a revised pension, gratuity/family
pension, and commutation scheme with effect from 1st January 2006 for the benefit of its
employees. The said memorandum was issued in terms of the recommendations of the
U.P Pay Committee, 2008. However, the employees of local bodies and public enterprises
were specifically excluded from the applicability of the said office memorandum. Another
office memorandum was issued on 8th December 2008 by the State Government for
providing revised pensionary benefits to those Government servants who had retired
before 1st January 2006. This order was made applicable to the employees of Public
Sector Enterprises who were already getting pension prior to 1st January 2006. A Division
Bench of Allahabad High Court by the judgment and order dated 16th January 2009
allowed the writ petition filed by Preetam Singh & others. The High Court quashed the
orders dated 13th September 2005 and 12th July 2007 to the extent to which they related
to the Board. A writ of mandamus was issued directing the Board to implement the new
pension scheme in terms of its Regulations framed on 5th November 1997.
5. In view of the decision of the High Court, a notification dated 19th May 2009 was
issued by the Board in the exercise of powers under clause (f) of sub-section (1) of Section
95 of the 1965 Act. The notification recorded that the Board had decided to implement the
new pension scheme as admissible to the officers and employees of the State
Government in terms of the Rules and Regulations set out in the said notification. The
Board directed that the new pension scheme shall come into force and will apply to those
officers who retired on or after 1st January 1996. However, it was stated that the Newly
Defined Contributory Pension Rules of the State Government will be applicable to those
employees of the Board who have joined the employment on or after 1st April 2005. The
notification also provided that the orders issued from time to time by the State Government
with respect to pension/ family pension/ gratuity shall be applicable to the officers and
employees of the Board.
6. The decision of the High Court was challenged by the State Government before this
Court in which the decision of this Court in Preetam Singh’s case1 was rendered. It was
observed in paragraph 21 of the final judgment of this Court that the interim order dated
7th August 2012 passed by this Court had the effect of staying the notification dated 19th
May 2009. By the interim order of this Court dated 7th September 2012, the employees of
the Board were permitted to claim benefits under the old pension scheme. However, it
was observed that the interim order will not come in the way of the said employees
agitating their claim and also supporting the relief granted by the High Court.
7. One of the main contentions canvassed by the State of Uttar Pradesh before this
Court in Preetam Singh’s case1 was based on provisions of sub-section (1) of Section 2
of the U.P. State Control Over Public Corporations Act, 1975 (for short ‘the 1975 Act’).
Section 2(1) of the 1975 Act provides that every statutory body established or constituted
under any Uttar Pradesh Act shall in the discharge of its functions be guided by such
directions on questions of policies as may be issued to it by the State Government
notwithstanding that no such power has been expressly conferred by the statute
establishing such a statutory body on the State Government. The contention of the State
Government was that the orders issued on 13th September 2005 and 12th July 2007 must
be deemed to have been issued in the exercise of powers under Section 2(1) of the 1975
8. While deciding Preetam Singh’s case1 on 24th September 2014, this Court referred
to Section 15 of the 1965 Act which exhaustively incorporates the functions of the Board.
This Court came to the conclusion that fixing conditions of service of its employees does
not constitute a function of the Board. Therefore, this Court held that the State Government
had no power to issue the directions contained in its orders dated 13th September 2005
and 12th July 2007. This Court also held that clause (f) of sub-section (1) of Section 95 of
the 1965 Act vests a power in the Board to make Regulations for determining conditions
of service of its officers and servants. It was held that the new pension scheme has been
framed by the Board in the exercise of power under clause (f) of sub-section (1) of Section
95. While dismissing the Special Leave Petition filed by the State Government, this Court
referred to the notification dated 19th May 2009 of the Board issued in the exercise of
power under clause (f) of sub-section (1) of Section 95 of the 1965 Act. This Court while
dismissing the appeal preferred by the State Government directed that all the eligible
employees of the Board will be governed by the said notification dated 19th May 2009. This
Court directed the Board to release pensionary benefits to retired employees governed by
the notification dated 19th May 2009 within a period of three months. Paragraph 21 of the
decision containing the directions issued by this Court is reproduced below:-
“21. It is also necessary for us to determine the consequence of the State of Uttar Pradesh, having
approached this Court, to assail the impugned judgment dated 16-1-2009 [Preetam Singh v. State
of U.P., 2009 SCC OnLine All 33 : (2009) 2 All LJ 702] . This Court having entertained the
petition filed by the appellant, passed interim directions on 7-8-2012 [State of U.P. v.
Preetam Singh, IA No. 7 in Civil Appeal No. 6307 of 2010, order dated 7-8-2012 (SC), wherein
it was directed:“Taken on board. There shall be stay of the order passed in Writ Petition
No. 1433 of 2011 dated 24-7-2012. IA No. 7 is disposed of. Registry is directed to list IA No.
4 on 27-82012, if it is in order.”] , which had the effect of staying the implementation of the
directions issued by the High Court, namely, of staying the implementation of the
Notification dated 19-5-2009. As a result, the employees governed by the Notification dated
19-5-2009, were paid their retiral dues under the Contributory Provident Fund Scheme. Since we
have now affirmed the impugned judgment of the High Court, dated 16-12009 [Preetam Singh v.
State of U.P., 2009 SCC OnLine All 33 : (2009) 2 All LJ 702] , it is apparent that all the eligible
employees of the Vikas Parishad will be governed by the Notification dated 19-52009. They will
therefore be entitled to the pensionary benefits from the date of their retirement. Undoubtedly,
they have been denied the said retiral benefits, consequent upon the interim orders passed
by this Court, at the behest of the State of Uttar Pradesh. In the above view of the matter,
we direct the Vikas Parishad to release the pensionary benefits to the retired employees
governed by the Notification dated 19-5-2009, within three months from today. While
determining the pensionary benefits payable to the eligible retired employees up to date,
if it is found that any of the retired employees is entitled to financial dues in excess of
those already paid under the Contributory Provident Fund Scheme, the said employee(s)
will be paid interest on the said amount @ 9% p.a. The burden of the aforesaid interest
component on the differential amount will be discharged by the Vikas Parishad in the first
instance. The same shall, however, be recovered from the State of Uttar Pradesh, who is solely
responsible for the interest ordered to be paid to the employees concerned.”
9. On 16th October 2009, the State Government issued an order sanctioning revised
pay structure, pay band, and grade pay to different categories of employees working in
public enterprises/ corporations. The revised pay structure was incorporated in the
annexure to the said order. The Government Order stated that necessary action shall be
taken by the public enterprises/ corporations in consultation with the Public Enterprises
Department/ Finance Department. It is also provided in the Government Order that the
execution of the Government Order shall be made only after a proposal to that effect is
approved by the Board of Directors of the Public Sector Enterprises. On 30th November
2009, the Housing Commissioner of the Board addressed a letter to the State Government
for communicating the proposal of the Board to apply the revised pay structure to its
employees. In response, on 14th January 2010, the State Government issued a
communication permitting the Board to grant the revised pay structure according to the
recommendations of the 7th Report of the U.P Pay Committee, 2008 to its employees. The
State Government permitted the Board to grant the revised pay structure to its employees
as provided in the aforesaid Government Order dated 16th October 2009. The said order
was issued on the basis of the recommendations of the Empowered Committee. However,
it was stated in that communication that the benefit shall be calculated on a notional basis
with effect from 1st January 2006 in the pay band and grade pay as per the table annexed
to the Government Order dated 16th October 2009. It provided that the actual benefit shall
be provided with immediate effect i.e. from 14th January 2010. In short, the employees of
the Board were not entitled to arrears of pay as per the revised pay structure with effect
from 1st January 2006. They were entitled to revised pay scales only on a notional basis
from 1st January 2006 and to the actual benefits only from 14th January 2010. Based on
the said communication, an Office Order was issued by the Board on 23rd January 2010
for giving effect to the communication dated 14th January 2010. In fact, another
Government Order was issued on 15th September 2011 stating that in terms of the order
dated 14th January 2010, pay scales of the employees of the Board will be notionally
revised with effect from 1st January 2006 but the actual benefits shall be extended only
from 14th January 2010. The said Government Order reiterates that the employees of the
Board will not be entitled to benefit of the revised pay structure for the period of 1st January
2006 to 13th January 2010.
10. The State Government issued another order dated 05th May 2015 to the Board
communicating the decision of the Hon’ble Governor to grant pensionary benefits to the
employees of the Board in terms of the new pension scheme with retrospective effect from
1st January 2006. The decision of the State Government, inter alia, provided that the
employees who were employed on or before 31st March 2005 and who had not retired till
date shall be granted pension. It further provided that the employees who had already
retired and had taken benefits under the old pension scheme will not be entitled to get a
pension under the new pension scheme. The Government directed that the employees of
the Board who have been employed on or after 1st April 2005 will not be entitled to grant
of pension. In terms of the Government Order of 05th May 2015, the Board issued Office
Order dated 13th May 2015.
11. There were two sets of writ petitions filed before the Allahabad High Court. The first
one was Writ Petition No.12645 of 2016 filed by certain employees of the Board. The
following prayers were made in the petition :
“(i) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to
redetermine the salary of the petitioners till their retirement and thereafter their pensionary
benefits on the basis of Sixth Pay Commission Recommendation w.e.f.1.1.2006.
(ii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents
to apply the provisions of the Government Order No.1508 dated 8.12.2008 on the officers of the
Parishad, while suitably reading down the restrictive provisions about its non-application on the
employees of the U.P. Awas Evam Vikas Parishad in view of the Pension Regulations dated
19.5.2009 read with judgment and order of the Hon’ble Apex Court dated 23.9.2014.
(iii) to issue a writ, order or direction in the nature of mandamus commanding the respondents
to redetermine/re-fix the salary of the petitioners in terms of Sixth Pay Commission
Recommendation w.e.f. 1.1.2006 till their retirement and thereafter redetermine their pensionary
benefits as per revised last pay drawn and pay arrears of salary and revised pensionary benefits
from the date of their retirement till date, in accordance with G.O. dated 8.12.2008, after deducting
the amounts already paid towards pensionary benefits of the petitioners, within a period of 2
(iv) to issue a writ, order or direction in the nature of Mandamus commanding the respondents
to grant the benefit of maximum gratuity of Rs.10 lac to the petitioners as per Government Order
(v) to issue a writ, order or direction in the nature of Mandamus commanding the respondents
to pay arrears of salary & pensionary benefits calculated in terms of the Sixth Pay Commission
Recommendation, including enhanced gratuity of Rs.10 lac, along with payment of interest at the
prevailing Bank rates, within a period of 2 months.
(vi) to issue an ad-interim mandamus to the respondent authorities to pay the current pension
of the petitioners in terms of Sixth Pay Commission Recommendation.”
Writ Petition No.10355 of 2017 was filed by another set of employees of the Board for
challenging the order dated 05th May 2015 passed by the State Government and the
consequential order dated 13th May 2015 passed by the Board.
12. By the impugned judgment, the aforesaid two petitions were disposed of. While
disposing of the petitions, in paragraph 41, the following directions were issued :
“41. Accordingly, both the writ petitions are allowed and the impugned orders dated 05.05.2015
and 13.05.2015 contained in Annexure No.1 and 2 to the Writ Petition o.126345 (S/B) of 2017
are quashed to the extent they are contrary to the judgment passed by the Hon’ble Apex Court in
the case of State of U.P. vs. Preetam Singh and others : Civil Appeal No.6307 of 2010. A
mandamus is issued to the respondents to grant benefit of arrears of salary payable to the
employees of Parishad w.e.f. 1.1.2006 to 13.01.2010 and to fix their pension/ family pension
and also release gratuity in accordance with the provisions of U.P. Avas Evam Vikas
Parishad Regulations notified on 19th May, 2009, and in the light of the orders of the
Hon’ble Supreme Court in Civil Appeal No.6307 of 2010 from the date of their entitlement
alongwith interest @ 9% per annum within a period of two months from the date of
production of certified copy of this order, failing which the petitioners shall be entitled and
paid interest at the rate of 12% per annum.”
13. Now, we come to the order dated 10th February 2020 passed by this Court. A Bench
of two Hon’ble Judges of this Court prima facie found that the functions of the Board
contemplated under Section 15 of the 1965 Act were wide enough even to cover the act
of fixing service conditions of its employees. In paragraph 43, this Court framed three
questions for consideration of a larger Bench. Paragraph 43 of the said order reads thus:
“43. Due to the above reasons we are of the view that with regard to three aspects i.e. (1), (2) and
(3) as 42 noted above, the judgment in Preetam Singh’s case needs reconsideration. We
formulate following questions to be considered by a larger Bench:
(1) Whether the judgment of this Court inPreetam Singh’s case laying down that conditions
of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas
Parishad lays down the correct law more so when the judgment does not refer to provisions of
Sections 8, 92, 94(2)(nn)of the 1965 Act ?
(2) Whether the view expressed in Preetam Singh’s judgment that functions of the U.P. Avas
Evam Vikas Parishad are only the specific functions enumerated in Section 15 of 1965 Act which
does not include the service conditions of employees of the Board lays down the correct law ?
Whereas the functions of the Board referred to in other provisions of Act, Rules and Regulations
as has been expressly provided in Section 15(1) by use of expression “subject to the provisions
of this Act and the Rules and Regulations” shall also be functions of the Board which induces
service conditions of officers and employees as per Section 95(1)(f) of the 1965 Act.
(3) Whether the State Government had nojurisdiction to issue directions regarding service
conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under the provisions
of the 1965 Act and 1975 Act and all other enabling powers with the State Government?
14. Ms. Aishwarya Bhati, the learned Additional Solicitor General appearing for the
State Government urged that the statutory functions of the Board include the function of
fixing terms and conditions of the employment of its employees. She placed reliance on
Section 92 of the 1965 Act which confers a power on the State Government to issue
directions to the Board for carrying out the purposes of the 1965 Act. She urged that it is
the duty of the Board to comply with the directions issued by the State Government. It was
further submitted that apart from Section 2(1) of the 1975 Act, there was sufficient power
vesting in the State Government under Section 8 of the Section 1965 Act to control and
put restrictions on the powers of the Board to appoint officers and employees. The learned
ASG invited our attention to the notification dated 19th May 2009 by which the Board
applied the new pension scheme to the employees who retired on or after 1st January
1996. She pointed out that in the said notification, it is specifically directed that the orders
with respect to pension/family pension/gratuity issued by the State Government from time
to time shall also be applicable to the officers and employees of the Board. She pointed
out that the said notification was never challenged. She would, therefore, submit that the
directions of the State Government impugned by the private respondents cannot be
faulted. After inviting our attention to the interim order dated 7th September 2012 passed
by this Court, the learned ASG submitted that those who have unconditionally opted for
the old pension scheme prior to 7th September 2012 have no subsisting right to claim the
pension in terms of the new pension scheme. She submitted that the employees are not
entitled to salary as per the revised pay structure for the period between 1st January 2006
to 13th January 2010 as per the binding directions of the State Government. The learned
senior counsel representing the Board also made similar submissions.
15. The learned counsel appearing for the respondents in Civil Appeal Nos.6624 and
6625 of 2022 also made legal submissions. We may note here that while reserving the
judgment on 15th September 2022, we had detagged the said appeals. Nevertheless, we
are also considering the submissions made by the respondents in the detagged appeals
as regards the three questions of law that are required to be decided. The submission of
the learned counsel is that as several employees were facing financial hardships after
their retirement, they had no option but to give the undertakings to accept the old pension
scheme and not opt for the new pension scheme. Considering this situation, this Court by
an interim order passed in Preetam Singh’s case1 had directed that even if employees
have taken benefit of the old pension scheme by giving an undertaking, they will be entitled
to the benefit of the new pension scheme in terms of the notification dated 19th May 2009.
The learned counsel invited our attention to the subsequent order dated 5th May 2015
passed by the State Government by which the benefit of the new pension scheme was
denied to those who opted to join the employment of the Board on or after 1st April 2005.
His submission is that this direction is discriminatory which creates two classes of
pensioners without any rational basis. He relied upon a decision of this Court in the case
of D.S. Nakara & Ors. v. Union of India2 as well as another decision in the case of V.
Sukumaran v. State of Kerala & Anr.3. He would, therefore, submit that reconsideration
of the view taken in Preetam Singh’s case1 is not at all warranted.
16. Shri Nidhesh Gupta, the learned senior counsel stated that he represents only those
respondents who had never opted for the old pension scheme and had not received any
amount under the old scheme. He submitted that under clause (f) of sub-section (1) of
Section 95 of the 1965 Act, the Board has a power to make Regulations providing for
conditions of service of officers and servants of the Board. Inviting our attention to
sub-section (2) of Section 95 of the 1965 Act, Shri Gupta would submit that only when any
Regulation framed by the Board is repugnant to the Rules framed by the State in the
exercise of powers under Section 94, the Rules will prevail. He submitted that admittedly
the State Government has not exercised the Rule making power under Section 94. He
urged that under clause (nn) of sub-section (2) of Section 94, the State Government has
a power to frame Rules concerning any matter for which Regulations can be framed under
Section 95. He submitted that it is well settled that when an enactment requires that a
certain thing should be done in a certain way, the thing must be done in that way or not at
all. He relied upon various decisions in this behalf, viz., A.R. Antulay v. Ramdas Sriniwas
Nayak & Anr.4; Dhananjaya Reddy etc. v. State of Karnataka5; and Gujarat Urja Vikas
Nigam Ltd. v. Essar Power Ltd.6.
17. Inviting our attention to Section 2(1) of the 1975 Act, he submitted that the power
conferred by the said provision on the State Government to issue directions is a general
power. This power is confined to issuing directions on questions of policies. He submitted
that the said power can be exercised in relation to the discharge of functions of the Board.
He urged that Section 15 of Chapter III of the 1965 Act lays down the functions of the
Board. He pointed out that Chapter III requires the Board to frame various schemes. He
urged that none of the clauses (a) to (p) of Section 15 lays down that the appointment of
employees and fixing their service conditions is a function of the Board under the 1965
Act. He urged that in the exercise of power under Section 2(1) of the 1975 Act, directions
cannot be issued regarding the service conditions of officers and employees of the Board.
18. By referring to Section 7 of the 1965 Act, he submitted that sub-section (2) thereof
clearly provides that the conditions of service of the Housing Commissioner shall be such
as may be prescribed. Relying upon the definition of the word ‘prescribed’ in clause (n) of
Section 2, he submitted that the conditions of service of the Housing Commissioner have
to be prescribed by the State Government by exercising the Rule making power. However,
Section 8 which provides for the appointment of officers and servants of the Board does
not contain such a provision. He submitted that the special or general orders of the State
Government contemplated by sub-section (1) of Section 8 can be issued only regarding
the mode and manner of appointment of the officers and servants of the Board and the
same have nothing to do with service conditions. The power of the State Government to
issue general or special orders is only for the purpose of imposing control and restrictions
on the appointment of the officers and servants of the Board. Therefore, sub-section (1)
of Section 8 cannot be construed to mean that by issuing general or special orders, the
State Government can determine the conditions of service of the officers and servants of
the Board. He submitted that as two different expressions have been used in Sections 7
and 8 of the 1965 Act, different meanings will have to be assigned to the said different
expressions. On this issue, he relied upon a decision of this Court in the case of DLF
Qutab Enclave Complex Educational Charitable Trust v. State of Haryana7.
19. He urged that the power under sub-section (2) of Section 92 can be exercised by
the State Government by issuing directions that are necessary for carrying out the
purposes of the 1965 Act. He submitted that in any event, in the present case, statutory
Regulations have been framed by the Board dealing with the grant of pensionary benefits.
20. He submitted that the power to issue directions under Section 2(1) of the 1975 Act
is a general power and the power under Sections 8 and 92 of the 1965 Act is a specific or
special power. Relying upon a decision of this Court in the case of Commercial Tax
Officer, Rajasthan v. Binani Cements Ltd. & Anr.8, he urged that the specific provisions
under the 1965 Act will prevail over the general provision under Section 2(1) of the 1975
21. He relied upon a decision of this Court in the case of Harwindra Kumar v. Chief
Engineer, Karmik & Ors. 9 . He submitted that executive order cannot override the
exercise of power made by the Board by framing Regulations concerning the new Pension
Scheme. He submitted that if the submission of the State Government that by issuing
executive orders it can override the provisions of the Regulations framed under Section
95 of the 1965 Act is accepted, the entire scheme of Sections 94 and 95 of the 1965 Act
will be rendered completely redundant. Relying upon a decision of this Court in the case
of Institute of Chartered Accountants of India v. Price Waterhouse & Anr.10, he would
submit that such an interpretation cannot be accepted.
22. He pointed out that if the pension is not granted on the basis of revised pay scales,
the very purpose of the grant of pension will be defeated. He submitted that employees
cannot be divided into two classes – one of those who retired pre-1996 and others of who
retired post-1996. He submitted that there was no justification for the Bureau of Public
Enterprises for writing a letter dated 14th January 2010 conferring the benefit of the revised
pension not from 1st January 2006 but from 14th January 2010. He submitted that no
explanation has been offered either before the High Court or this Court for fixing the date
of 14th January 2010. He relied upon a decision of this Court in the case of State of
Rajasthan & Anr. v. Prem Raj11.
23. He pointed out that the benefit of the revised pension was given by the State
Government to the employees of U.P Power Corporation with effect from 1st January 2006.
To the employees of U.P Jal Nigam, the benefit of the revised pension was given only
from 12th April 2010. The employees of Jal Nigam filed a writ petition before the High Court
which was allowed by holding that the employees were entitled to get the benefit of the
revised pension from 1st January 2006. The said decision has become final as a Special
Leave Petition filed by the State Government against the said order has been dismissed
on 20th May 2022. He submitted that the Board has adequate resources to bear the burden
of payment of revised pension from 1st January 2006. His submission is that the law laid
down by this Court in the case of Preetam Singh’s case1 does not call for any
reconsideration at all.
24. The three questions framed under Order dated 10th February 2020 are
inter-connected. For deciding these three questions, we will have to decide the core issues
whether the functions of the Board are confined to those which are set out in Section 15
of the 1965 Act and whether the appointment of officers and employees of the Board and
the determination of their conditions of service constitute the functions of the Board.
Another question that will have to be addressed is as regards the power, if any, of the
State Government to issue directions to the Board concerning the determination of the
conditions of service of its officers and servants.
25. We have perused the provisions of the 1965 Act. Chapter II thereof has the heading,
“Establishment and conduct of business of the Board”. Chapter II consists of Sections 3
to 14. Section 3 provides for the constitution of the Board. Section 7 provides for the
appointment of a Housing Commissioner. Section 7 reads thus :
(1) There shall be a Housing Commissioner appointedby the State Government for the
purposes of this Act.
(2) The conditions of service of the HousingCommissioner shall be such as may be
prescribed. He shall be remunerated from the Board’s fund.
(3) The State Government may, if it is of opinion thatspecial circumstances so require, appoint
the Housing Commissioner to be the Adhyaksh in addition to his own duties.
(4) The State Government may also appoint theHousing Commissioner as an authority under
any other law for the time being in force.”
Section 8 deals with “Appointment of Officers and Servants”. Section 8 reads thus :
“8. Appointment of officers and servants.-(1) Subject to such control and restrictions as
may from time to time be imposed by the State
Government, by special or general orders, the Board may appoint such officers and
servants as it considers necessary for the efficient performance of its functions.
(2) the Board may, with the previous approval of the State Government appoint a servant of the
Central or the State Government or of a local authority on any of the posts under it on such terms
and conditions as may be agreed upon.”
As provided in sub-section (1) of Section 7, the Housing Commissioner has to be
appointed by the State Government. Subsection (2) of Section 7 provides that the
conditions of service of the Housing Commissioner must be prescribed by the Rules.
Rule-making power under Section 94 vests with the State Government. Clause (b) of
sub-section (2) of Section 94 empowers the State Government to frame Rules determining
the conditions of service of the Housing Commissioner. The obvious reason for conferring
the power to determine service conditions of the Housing Commissioner on the State
Government appears to be that the State Government is the appointing authority.
26. In contrast, sub-section (1) of Section 8 provides thatsubject to control and
restrictions imposed from time to time by the State Government by special or general
orders, the Board may appoint such officers and servants as it considers necessary for
the efficient performance of its functions. There is a marked distinction between the
language used by sub-section (2) of Section 7 and sub-section (1) of Section 8 though
both provisions deal with the power to appoint officers of the Board. Thus, two different
expressions or terminologies have been used in Sections 7 and 8. Therefore, the
legislature intended to convey different meanings. Sub-section (1) of Section 8 does not
provide that the State Government shall have the power to determine the conditions of
service of officers and employees of the Board. The power to control the appointment and
the power to put restrictions are distinct and different from the power to determine the
service conditions of the officers and servants of the Board. The control of the State
Government and the power to impose restrictions as provided in sub-section (1) of Section
8 will extend to the creation of posts of officers and servants of the Board. The control can
be exercised by directing the creation of different categories of posts. The control can be
also exercised by determining the number of posts of different categories. In this context,
Sections 94 and 95 of the 1965 Act are also relevant. Under sub-section (1) of Section 94,
the State Government retains the general Rule making power of framing Rules for carrying
out the purposes of the Act. Without prejudice to the generality of the power under
sub-section (1), subsection (2) of Section 95 lays down the topics and subjects on which
Rule-making power can be exercised. One of the specific powers conferred by clause (b)
of sub-section (2) of Section 94 on the State Government, as pointed out earlier, is of
framing Rules for laying down conditions of service of the Housing Commissioner. Clause
(nn) of sub-section (2) of Section 94 reads thus :
(2) In particular and without prejudice to the generality of the foregoing power, such rules may
(nn) any matter for which regulation may be made by the Board under Section 95;
Thus, clause (nn) of sub-section (2) of Section 94 confers power on the State Government
to frame Rules in respect of any matter for which regulations can be framed by the Board.
Section 95 which confers the powers on the Board to frame Regulations reads thus :
“95. Power to make regulations.-(1) The Board may, by notification in the Gazette, make
(e) the duties of officers and servants of the Board;
(f) the conditions of service of officers and servants of the Board;
(n) any other matter which is to be or may be provided for by regulations under this Act or the
Clause (f) of sub-section (1) of Section 95 specifically empowers the Board to frame
Regulations governing conditions of service of officers and servants of the Board. Under
clause (b) of sub-section (2) of Section 94, the State Government has a power to
determine the conditions of service of the Housing Commissioner. Thus, the Legislature
has specifically incorporated in Section 7 that the State Government shall have the power
to determine the conditions of service of the Housing Commissioner. However, such a
provision is conspicuously absent in Section 8 dealing with the appointment of servants
and officers of the Board. The reason is that the power to determine the service conditions
of the other officers and servants has been conferred on the Board which can be exercised
by making Regulations.
27. In view of sub-section (2) of Section 95 read with clause (nn) of sub-section (2) of
Section 94, Regulations, if any, framed by the Board for determining the conditions of
services of its officers and servants are always subject to the Rules which may be framed
by the State Government by exercising the power under clause (nn) of sub-section (1) of
Section 94. Whenever there is any inconsistency between the Regulations framed under
clause (f) of sub-section (1) of Section 95 and the Rules framed under clause (nn) of
subsection (1) of Section 94, the Rules will prevail and to that extent, the provisions of the
Regulations which are repugnant to the Rules shall be void. To put it differently, the power
to determine the conditions of service of the officers (except the Housing Commissioner)
and servants of the Board vests in the Board, and the said power can be exercised only
by framing Regulations under clause (f) of sub-section (1) of Section 95. So long as Rules
are not framed by the State Government under clause (nn) of subsection (1) of Section
95 for overriding the provisions of the Regulations framed by the Board for prescribing the
service conditions, the provisions of Regulations shall always govern the field. Except for
the exercise of the Rule making power under clause (nn) of sub-section (1) of Section 94,
there is no specific power conferred under the 1965 Act, or for that matter under the 1975
Act, on the State Government to nullify or to override the conditions of service of its officers
and servants determined by the Board by the Regulations framed in the exercise of
powers under clause (f) of sub-section (1) of Section 95.
28. Now coming to the issue of the functions of the Board, we may note that Chapter III
of the 1965 Act has the heading “Functions and Powers of the Board”. As noted earlier,
specific provisions regarding the appointment of the Housing Commissioner, officers and
servants of the Board find a place in Chapter II and not in Chapter III. As specifically
provided in clause (1) of Section 8, the Board is empowered to appoint such officers and
servants as it considers necessary for the efficient performance of its functions. This is
one factor that suggests that the appointment of officers and servants is not a function of
the Board but their appointments are required to be made for the efficient performance of
its functions.
29. Chapter III dealing with “Functions and Powers of the Board” comprises of Sections
15 to 49. Section 15 has the heading “Functions of the Board” which reads thus :
“15. Functions of the Board.-(1) Subject to the provisions of this Act and the rules and
regulations, the functions of the Board shall be-
(a) to frame and execute housing and improvement schemes and other projects;
(b) to plan and co-ordinate various housing activities in the State and to ensure expeditious
and efficient implementation of housing and improvement schemes in the State;
(c) to provide technical advice for and scrutinise various projects under housing and
improvement schemes sponsored or assisted by Central Government or the State Government;
(d) to assume management of such immovable properties belonging to the State Government
as may be transferred or entrusted to it for this purpose;
(e) to maintain, use, allot, lease, or otherwise transfer plots, buildings and other properties of
the Board or of the State Government placed under the control and management of the Board;
(f) to organise and run workshops and stores for the manufacture and stock-piling of building
(g) on such terms and conditions as may be agreed upon between the Board and the State
Government, to declare houses constructed by it in execution of any scheme to be houses subject
to the U.P. Industrial Housing Act, 1955 (U.P. Act No.XXIII of 1955);
(h) to regulate building operations;
(j) to provide roads, electricity, sanitation, watersupply and other civic amenities and essential
services in areas developed by it;
(k) to acquire movable and immovable properties for any of the purposes before mentioned;
(l) to raise loans from the market, to obtain grants and loans from the State Government, the
Central Government, local authorities and other public corporations, and to give grants and loans
to local authorities, other public corporations, housing co-operative societies and other persons
for any of the purposes before mentioned;
(m) to make investigation, examination or survey of any property or contribute towards the cost
of any such investigation, examination or survey made by any local authority or the State
(o) to fulfil any other obligation imposed by or under this Act or any other law for the time being
(p) to do all such other acts and things as may be necessary for the discharge of the functions
before mentioned.
(2) Subject to the provisions of this Act and the rules and regulations, Board may undertake,
where it deems necessary, any of the following functions, namely-
(a) to promote research for the purpose of expediting the construction of and reducing the cost
(b) to execute works in the State on behalf of public institutions local authorities and other
public corporations, and departments of the Central Government and the State Government;
(c) to supply and sell building materials;
(d) to co-ordinate, simplify and standardise the production of building materials and to
encourage and organise the prefabrication and mass production of structural components;
(e) with a view to facilitating the movement of the population in and around any city,
municipality, town area or notified area to establish, maintain and operate any transport service;
to construct, widen strengthen or otherwise improve roads and bridges and to give financial help
(f) to do all such other acts and things as may be necessary for the discharge of the functions
before mentioned.”
As the appointments of officers and servants of the Board are dealt with by Sections 7 and
8 in Chapter II, the same do not find a place in the functions of the Board set out either in
Section 15 or in any other Section in Chapter III. There are provisions incorporated in
Chapter III dealing with various schemes and the powers of the Board which can be
exercised for the implementing the schemes.
30. Chapter V of the 1965 Act provides for the Board of acquiring and disposing of land
for the purposes of the Act. Under Section 59, the Board is empowered to issue
debentures. Under Section 58(3), the Board is entitled to raise loans for the purposes of
the Act. Obviously, acquiring and selling the property, issuing debentures, and raising
loans cannot be the functions of the Board. These powers have been conferred by Chapter
V to enable the Board to effectively discharge its functions and to exercise its powers
specified in Chapter III. The nature of the functions of a statutory body like the Board will
always depend on the object of establishing such a body. The appointment of officers and
servants needs to be made for the efficient performance of the specific functions of the
Board. The exercise of power to appoint servants and officers of the Board and
determination of their service conditions cannot constitute the functions of the Board. The
powers under Chapter V and the power of appointing officers and servants under Sections
7 and 8 of Chapter II need to be exercised for ensuring proper discharge of the functions
of the Board as well as for the exercise of the powers set out in Chapter III. We are,
therefore, of the considered view that the appointment of officers and servants and
determination of their service conditions cannot constitute functions of the Board.
31. Section 92 which provides for Control of the State Government over the Board is a
part of Chapter X under the heading “External Control”. Section 92 reads thus :
“92. Control of the State Government over the Board and other local authorities.-(1) The
(a) submit to the State Government such reports and returns in such forms and at such
intervals as may be prescribed;
(b) furnish to the State Government such documents, returns, statements, estimates or other
information regarding any matter under the control of the Board as may be directed by the State
(2) The State Government may give the Board such directions as in its opinion are
necessary or expedient for carrying out the purposes of this Act, and it shall thereupon be
the duty of the Board to comply with such directions.
(3) Without prejudice to other provisions of this Act,and notwithstanding anything contained in
any other law for the time being in force, the State Government may give any local authority such
directions as in its opinion are necessary or expedient for enabling the Board to carry out the
purposes of this Act; and thereupon it shall be the duty of the local authority to comply with such
The power under sub-section (2) of section 92 is to be exercised for issuing directions for
carrying out the purposes of the 1965 Act. The issue is whether the State Government
can exercise the power under sub-section (2) of Section 92 to override statutory
Regulations framed by the Board in the exercise of powers under clause (f) of sub-section
(1) of Section 95. If the State Government desires to override or nullify such Regulations,
there is a specific provision under the said Act of 1965 which enables the State
Government to do so. On a conjoint reading of clause (nn) of subsection (1) of Section 94
and sub-section (2) of Section 95, the State Government has the power to frame Rules
determining the service conditions of the officers and servants of the Board and once the
Rules are framed by the State Government in this behalf, the provisions of the Regulations
framed by the Board will apply only to the extent to which they are not repugnant to the
Rules. Service conditions will necessarily include salary, perquisites, allowances,
retirement benefits such as pension, etc. The Regulations framed by the Board under
clause (f) of sub-section (2) of Section 95 have a force of law. On a plain reading of
subsection (2) of Section 92, by no stretch of the imagination, by issuing directions, the
State Government can nullify the statutory Regulations framed under Section 95. More
so, when the 1965 Act itself specifically enables the State Government to nullify the
Regulations by exercising the Rule making power. As the scheme of the 1965 Act
specifically provides that Regulations framed under Section 94 can be overridden by
framing Rules in accordance with clause (nn) of sub-section (1) of Section 94, the act of
overriding the Regulations must be done only by framing the Rules and not in any other
manner. This view is supported by a series of decisions of this Court taking a consistent
view that where an enactment requires to do a certain thing in a certain way, the thing
must be done in that way and in no other manner. There are several decisions taking that
view ending with the decision of this Court in the case of Gujarat Urja Vikas Nigam6.
However, the locus classicus on this point is the well-known decision of the Privy Council
in the case of Nazir Ahmed v. The King Emperor12. It was held by Privy Council that
“where a power is given to do certain things in a certain way, the things must be done in
that way and not at all. Other methods of performance are certainly forbidden”. The upshot
of the aforesaid discussion is that the State Government has no power to issue directions
under sub-section (2) of Section 92 to nullify or override the Regulations framed by the
Board in the exercise of powers under clause (f) of sub-section (1) of Section 95.
32. Another argument of the State Government is based on subsection (1) of Section
15 which opens with an expression “subject to the provisions of this Act and the rules and
regulations”. By use of the said expression, the exercise of the power to frame Regulations
for determining the conditions of service of officers and servants does not become a
function of the Board. The meaning of the opening part of sub-section (1) of Section 15 is
that the functions of the Board must be discharged subject to the constraints of the Rules
and Regulations framed under the 1965 Act.
33. Next limb of the argument of the State Government is based on Section 2(1) of 1975
"2. (1) Power to issue directions to statutory bodies.-Every statutory body (by whatever name
called), established or constituted under any Uttar Pradesh Act, excepting Universities governed
by the Uttar Pradesh State Universities Act, 1973, as reenacted and amended by the Uttar
Pradesh University (re-enactment and Amendment Act), 1974, shall, in the discharge of its
functions, be guided by such directions on questions of policies, as may be given to it by
the State Government, notwithstanding that no such power has expressly been conferred
on the State Government under the law establishing or constituting such statutory body."
On a plain reading of the aforesaid provision, the power to issue directions vested in the
State Government can be exercised only for issuing directions confined to questions of
policies. The directions can be issued confined to policies concerning the discharge of the
functions of the Statutory Body. The directions issued by the State Government on the
questions of policies guide every statutory body in the discharge of its functions. For the
reasons we have already recorded while dealing with sub-section (2) of Section 92 of the
1965 Act, even the power under Section 2(1) of the 1975 Act cannot be invoked to nullify
the statutory Regulations framed by the Board which have a force of law. That can be
done only by exercising the Rule making power under clause (nn) of sub-section (1) of
Section 94 of the 1965 Act. The power under Section 2(1) of the 1975 Act is the general
power that must yield to the special powers conferred by the 1965 Act. The power under
sub-section (1) of Section 2 is different and distinct from the power to frame statutory
34. The aforesaid discussion is sufficient to answer the three questions framed. Subject
to what we have held above, we concur with the view taken by this Court in Preetam
Singh’s case1. Our answers to the three questions are as under :
Q.1 Whether the judgment of this Court in Preetam Singh’s case laying down that
conditions of service of officers and employees do not constitute the functions of the U.P.
Avas Evam Vikas Parishad lays down the correct law more so when the judgment does
not refer to provisions of Sections 8, 92, 94(2)(nn)of the 1965 Act ?
A: The decision lays down the correct proposition of law. Q.2 Whether the view expressed
in Preetam Singh’s judgment that functions of the U.P. Avas Evam Vikas Parishad are
only the specific functions enumerated in Section 15 of 1965 Act which does not include
the service conditions of employees of the Board lays down the correct law ? Whereas
the functions of the Board referred to in other provisions of Act, Rules and Regulations as
has been expressly provided in Section 15(1) by use of the expression “subject to the
provisions of this Act and the Rules and Regulations” shall also be functions of the Board
which induces service conditions of officers and employees as per Section 95(1)(f) of the
A: The first part of the question is answered in the affirmative. The functions of the Board
are as specified in Section 15 and other relevant sections in Chapter III of the 1965 Act.
The second part is answered in the negative.
Q.3 Whether the State Government had no jurisdiction to issue directions regarding
service conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under
the provisions of the 1965 Act and 1975 Act and all other enabling powers with the State
A: Answered in affirmative. But the State Government can always frame Rules in the
exercise of powers under clause (nn) of sub-section (1) of Section 94 of the 1965 Act for
determining the conditions of service of the servants and officers of the Board. Whenever
there is any inconsistency between Regulations framed under clause (f) of sub-section (1)
of Section 95 and the Rules framed under clause (nn) of sub-section (1) of Section 94, the
Rules will prevail and to that extent, the provisions of the Regulations which are repugnant
to the Rules shall be void.
35. After having decided the questions, we are of the view that Civil Appeals can be
decided in terms of our findings instead of sending them back to the Bench of two Hon’ble
36. Now, we proceed to deal with the ancillary issues. Now coming to the new pension
scheme, an Office Order was issued on 16th January 2004 by the Board recording that a
proposal for framing a scheme of pension was under consideration. The Office Order
dated 16th January 2004 provided that those employees who were not interested in opting
for the new pension scheme must file an affidavit on stamp paper of Rs.10/-. In the said
affidavit, it must be clearly and specifically asserted that the beneficiary was not interested
in the new pension scheme and the entire amount deposited by him as his share along
with Board’s share should be paid to the beneficiary. It was also provided that the affidavit
must state that in the future, the beneficiary will not claim pensionary benefits before any
authority or the Court. According to the stand taken by the State Government, total of 582
employees/officers opted for the old scheme by filing affidavits/undertakings. The State
Government has placed on record a copy of the affidavit of respondent no.1 – Virendra
Kumar in one of the appeals. It is not disputed that all the affidavits of the employees who
decided not to opt for the new pension scheme are in the same format. In the affidavit, it
was incorporated that the employee was not interested at all in the pension scheme and
he was interested in taking payments under the old scheme. It is specifically stated that
he will not make any claim in respect of the new pension scheme.
37. After the State Government accorded its approval, on 05th November 1997 the
Board passed a Resolution approving the new pension Scheme. The High Court while
allowing the petitions filed by Preetam Singh and others, directed the Board to implement
the new pension scheme in terms of its decision dated 05th November 1997. High Court
allowed the petition on 16th January 2009. For giving effect to the decision, on 19th May
2009, the Board issued a notification recording that in the exercise of the powers under
clauses (f) and (n) of sub-section (1) of Section 95 of the 1965 Act, it has decided that the
pension scheme and gratuity admissible to the officers and servants of the State
Government shall be admissible to the employees of the Board. The relevant part of the
Now therefore, the U.P. Avas Evam Vikas Parishad, in exercise of the power under clause (f)(i)
& (n) of sub-section (1) of Section 95 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P.
Act 1 of 1966) has decided that the Pension/Family Pension and Gratuity admissible to the officers
and employees of State Government, which is governed by the following rules, schemes and
Government orders shall also be admissible (excluding Pension commutation) to the officer and
employees of the U.P. Avas Evam Vikas Parishad :
5. All orders of finance department of U.P. Government as related to pension / family
6. Newly defined Contributory Pension rules According to notification no.Sa-3-379/
Das-2005-301(9)/2003, dated March 28, 2005 applicable to officers and employees of State
Govt., who joined services on April 01, 2005 on onwards do
The orders with respect to the Pension/Family Pension/Gratuity issued time to time by the
State Govt. shall also be applicable to the officers and employees of U.P. Avas Evam Vikas
It has also been decided by the Parishad that General Provident Funds Rules, 1985, shall be
applicable to the officer and employees of U.P. Avas Evam Vikas Parishad instead of Contributory
In GPF Rules and Govt. Rules/Orders issued in this regard, ‘Govt.’ means the ‘U.P. Avas Evam
Vikas Parishad’, ‘Accountant General’ means ‘finance Controller of U.P. Avas Evam Vikas
Parishad’ & ‘Head of Department’ means ‘Housing Commissioner’.
The State Government shall not provide any financial assistance for the implementation of the
Contents of the notification shall come into force w.e.f. January 1, 1996 and such officers
and employees of Avas Evam Vikas Parishad who have retired on or after the said date
shall be benefited with the said decision.
Newly defined Contributory Pension Rules notified by the State Government shall be
applicable to those employees who have joined Parishad services on April 01, 2005 or
Thus, the new pension scheme was retrospectively brought into force from 1st January
1996 and was made applicable to the employees and officers of the Board who retired on
or after that date. It is also recorded therein that the newly defined Contributory Pension
Rules notified by the State Government shall be applicable to those employees of the
Board who have joined the employment from 1st April 2005 onwards. Thus, the
applicability of the new pension scheme was confined to the officers and employees who
retired on or after 1st January 1996. The officers and employees appointed on or after 1st
April 2005 were excluded from the applicability of the new pension scheme. We must note
here that the notification dated 19th May 2009 has become final and in none of the petitions
which are the subject matter of these appeals, the same was challenged. In fact, in Writ
Petition No.10355 of 2017, there was a prayer to issue a mandamus to implement the
notification. Moreover, in paragraph 21 of the decision of this Court in Preetam Singh’s
case1, this Court issued a mandate to act upon the said notification. The notification dated
19th May 2009 specifically states that the orders with respect to the pension/ family
pension/ gratuity issued from time to time by the State Government shall be applicable to
the officers and servants of the Board. Thus, only those employees of the Board who have
retired on or after 1st January 2006 will be entitled to the benefit of the new pension scheme
and those who are appointed on or after 1st April 2005 will be governed by another set of
Rules as mentioned in the notification dated 19th May 2009.
38. In the Special Leave Petition filed by the State Government against the judgment of
the Allahabad High Court in the case of Preetam Singh and others, an interim order was
passed by this Court on 7th August 2012 which had the effect of staying the judgment of
the High Court and the notification dated 19th May 2009. The further interim order dated
7th September 2012 recorded that if the employees of the Board, who have retired from
service, claim Contributory Provident Fund and other retiral benefits (as per the old
scheme), the Board shall pass appropriate orders granting the benefit under the old
scheme. However, it was clarified that the said interim order will not come in the way of
the respondents before this Court agitating their claim and supporting the reliefs granted
by the Allahabad High Court. Paragraph 21 of the judgment records that by the interim
order, the notification dated 19th May 2009 was stayed, and therefore, no one could get
pension under the new scheme. Therefore, the interim order was passed which enabled
the employees who had not received benefits either under the old scheme or the new
pension scheme, to take benefits under the old scheme. This interim order was made as
no one could get the benefit of the old scheme as a result of the stay granted to the
notification dated 19th May 2009. The interim order dated 7th September was thus
applicable only to those employees who had not taken benefits under the old scheme till
7th September 2012. Obviously, those officers and employees of the Board who opted for
the old scheme by filing affidavits in terms of the Office Order dated 16th January 2004
and received the benefits under the old scheme before the interim order dated 07th
September 2012 was passed, are disentitled to claim pension under the new pension
scheme. Those officers and employees of the Board who opted to take benefits under the
old scheme after 07th September 2012 will be entitled to benefit of the direction issued by
this Court in paragraph 21 of the decision in Preetam Singh’s case1 regarding the
payment of pension under the new pension scheme and the payment of interest on the
differential amount.
39. The State Government issued two Office Memoranda on 08th December 2008. The
first was regarding the revision of pension/ gratuity/ family pension and commutation with
effect from 1st January 2006 on the basis of recommendations of the U.P. Pay Committee,
2008. The said order specifically recorded that it will not apply to local bodies and public
enterprises. The second Office Memorandum dated 08th December 2008 was issued for
applying revision of pension and family pension in respect of the employees who have
retired prior to 1st January 2006. Obviously, the second Office Memorandum is not relevant
as the new pension scheme of the Board was made applicable to those who retired on or
after 1st January 2006 as provided in the notification dated 19th May 2009. The first Office
Memorandum dated 08th December 2008 which excluded the officers and employees of
the Board was challenged belatedly for the first time in 2016 in Writ Petition No.126445 of
2016. We may note here that the Board’s notification dated 19th May 2009 was issued in
the exercise of Regulation making power under clause (f) of sub-section (1) of Section 95
of the 1965 Act which provided that orders issued by the State Government from time to
time with respect to pension/ family pension/ gratuity shall be applicable to the officers and
employees of the Board. No part of the regulations framed by the Board on 19th May 2009
was ever challenged. Therefore, the officers and employees of the Board who were the
beneficiaries under the notification dated 19th May 2009 were bound by the first
Memorandum dated 08th December 2008 and the orders passed from time to time by the
State Government with regard to pension and family pension. Moreover, revised pension
was granted to the State Government employees as the recommendations of U.P Pay
Committee, 2008 were made applicable to them. The said recommendations were applied
to the employees of the Board on 14th January 2010. We may note here that the Allahabad
High Court, by the impugned judgment, has not set aside or modified the Office
Memorandum dated 08th December 2008.
40. On 16th October 2009, the State Government issued an order making applicable
revised pay structure in terms of the report of the 7th U.P. Pay Committee, 2008 to the
public enterprises and corporations subject to the terms and conditions incorporated
therein. The Board, by a letter dated 30th November 2009, informed the State Government
of its decision to apply the revised pay structure. It was sought to be argued by some of
the respondents that the order dated 14th January 2010 relates to pension. In fact, it only
deals with the applicability of the revised pay structure to the employees and officers of
the Board. By the order dated 14th January 2010, the State Government communicated
its decision to allow the Board to apply the revised pay structure on a notional basis with
effect from 1st January 2006 in the pay band and grade pay in the revised pay structure
as per the table enclosed to the Government Order dated 16th October 2009. The said
order recorded that the benefit of pay structure shall be granted with immediate effect to
the officers and employees of the Board by calculating the benefit on a notional basis with
effect from 1st January 2006. The Office Order was issued by the Board on 23rd January
2010 for implementation of the aforesaid order dated 14th January 2010. The meaning of
the order dated 16th January 2010 was that the actual benefit of the revised pay structure
will be available immediately from that date by calculating the pay on a notional basis in
terms of the revised pay structure with effect from 1st January 2006. In other words, the
order dated 14th January 2010 made it clear that the officers and employees of the Board
will not be entitled to revised pay from 1st January 2006 till 14th January 2010 and that they
will get the benefit of revised pay only from 14th January 2010. But, while calculating the
revised pay with effect from 14th January 2010, the benefit of the revised pay structure
was to be notionally provided from 1st January 2006. Thus, the pay fixation as of 14th
January 2010 must be made by notionally granting the benefit of the new pay structure
with effect from 1st January 2006. The communication dated 15th January 2011 of the
State Government addressed to the Housing Commissioner of the Board records that the
officers and employees of the Board will not be entitled to arrears of revised pay for the
period from 1st January 2006 to 13th January 2010. None of these orders of 16th October
2009, 14th January 2010, and 15th January 2011 were concerning pension. These orders
deal only with the grant of a revised pay structure. But, the computation of pension has to
be made on the basis of the applicable pay structure. Hence, those who retired on or after
1st January 2006 and those who were entitled to benefit of the new pension scheme under
the notification dated 19th May 2009 will be benefitted from the revised pay structure to
the extent that their pension will have to be calculated on the basis of revision of pay
structure on notional basis from 1st January 2006.
41. On 05th May 2015, the State Government issued another order regarding
pensionary benefits to the officers and employees of the Board in terms of which Office
Order dated 13th May 2015 was issued. The gist of the said order dated 05th May 2015 is
(i) Such staff of U.P. Avas and Vikas Parishad whose recruitment was done on or
before 31 March 2005 and who have not retired till date, will be entitled to pension;
(ii) Such staff of U.P. Avas and Vikas Parishad who had retired and had taken all the
benefits under the C.P.F. Scheme after getting retired, will not be entitled to pension;
(iii) Such staff of U.P. State Avas and Vikas Parishad whose recruitment was done on
or after 1st April 2005 will not be entitled get the pension; and
(iv) In the light of the order of this Court in Preetam Singh’s case, the 9% interest is not
payable to any retired staff in C.P.F. Scheme. In future, if the question of paying interest
to any staff member arises, then the Board will bear the said expense by itself and no
claim can be made from the government.
The directions in the above terms were incorporated in the consequential order issued by
the Board on 13th May 2015. Notification dated 19th May 2009 issued by the Board clearly
provides that all the officers and employees who retired on or after 1st January 2006 will
be entitled to benefit of the new pension scheme but those who were employed on or after
1st April 2005 will be entitled to benefits under the newly defined Contributory Pension
Rules of the State Government. To that extent, clause (i) of the Government Order dated
5th May 2015 will require modification. Even clause (ii) will require clarification in terms of
this Judgment. Those officers and employees who have already taken benefit of the old
scheme before 07th September 2012 by giving undertakings will not get the benefit of the
new pension scheme but those who have taken the benefit of the old scheme after the
date of the interim order dated 7th September 2012 will be entitled to take benefit of the
new pension scheme. Clause (iii) of the order means that in view of the notification dated
19th May 2009, those who are appointed on or after 1st April 2005 will not get the benefit
of the new pension scheme under the said notification. As regards clause (iv), interest will
be payable in terms of the decision of this Court in Preetam Singh’s case1, only to those
employees and officers who had not taken benefit of the old scheme before the interim
order dated 07th September 2012 was passed by this Court. Interest in terms of the
decision of this Court will be payable on differential amounts, to those who have taken
benefits under the old scheme after 07th September 2012. To the above extent, the
directions of this Court issued in Preetam Singh’s case1 will have to be clarified.
42. Now, the other issue which survives is whether the officersand employees are
entitled to arrears of pay as per the revised pay structure for the period between 1st
January 2006 to 13th January 2010. The impugned judgment proceeds on the footing that
the order of the State Government directing that the officers and employees of the Board
will get the benefit of the new pay structure notionally from 1st January 2006 and actually
from 14th January 2010 is issued in the exercise of power under Section 2(1) of 1975 Act
and Section 92(2) of the 1965 Act. Therefore, the High Court held that the State
Government could not have issued the said direction regarding the determination of
conditions of service as the determination of the conditions of service was not a function
of the Board.
43. As far as the applicability of the pay structure to the employees and officers of the
Board is concerned, there is no material placed on record to show that the Regulation
making power under Section 95 was at all exercised by the Board regarding applying
revised pay structure applicable to the State Government employees to its own
employees. All that the Board did was to implement the order of the State Government
dated 14th January 2010 by granting a revised pay structure to its employees. The said
order is based on the order of the State Government issued on 16th October 2009 by which
a decision was taken to apply the revised pay structure applicable to the State
Government employees to the employees of public sector enterprises on the terms and
conditions incorporated therein. As noted earlier, by exercising the Rule making power
under clause (nn) of sub-section 2 of Section 94 of the 1965 Act, the State Government
could have always determined the pay scales of the officers and employees of the Board.
If it is held that the State Government had no power to issue the orders dated 16th October
2009 and 14th January 2010, the employees of the Board will not get the benefit of the
revised pay structure made applicable to the Government employees as the Board has
not framed the Regulations under clause (f) of sub-section (1) of Section 95 of the 1965
Act providing for the grant of revised pay structure to the employees. Surprisingly, in
paragraph 22 of the impugned judgment, the High Court has held that the orders dated
16th October 2009 and 14th January 2010 would have no applicability in the matter of laying
down the conditions of service of the employees of the Board. If this finding is upheld, the
employees of the Board will be completely deprived of the benefit of the revised pay
structure as there is no Regulation made by the Board operating in the field. Hence, the
employees of the Board will be entitled to the revised pay structure in terms of the said
orders as clarified by the further order dated 15th September 2011.
44. The grant of arrears from 1st January 2006 till 14th January 2010 will involve huge
financial implications for the Board. Financial constraint is a valid ground for denying
arrears as per the revised pay structure. The decision to provide the benefit of a higher
pay structure to the officers and employees of the Board was taken by the State
Government subject to the condition of not paying arrears for the period between 1st
January 2006 and 14th January 2010. Therefore, we cannot approve the direction issued
by the High Court under the impugned judgment to pay arrears of wages as per the new
pay structure for the period from 1st January 2006 to 14th January 2010.
45. Hence, our conclusions are as under :
(i) We uphold the decision of this Court in Preetam Singh’s case1 with a modification
that the State Government can always exercise the powers under clause (nn) of
sub-section (1) Section 94 of the 1965 Act for determining the conditions of service of the
officers (other than the Housing Commissioner) and employees of the Board. If such
power is exercised, those provisions of the Regulations framed under clause (f) of
sub-section (1) of Section 95 which are repugnant to the Rules, shall be void;
(ii) All the officers and employees of the Board who have not received the benefit of
the old scheme till 07th September 2012 and have retired on or after 1st January 2006 shall
be entitled to benefit of the new pension scheme as per the notification dated 19th May
2009 issued by the Board provided they are otherwise eligible. However, the officers and
employees appointed on or after 1st April 2005 will be governed by the newly defined
Contributory Pension Rules notified by the State Government;
(iii) Those officers and employees of the Board who have retired on or after 1st January
2006 and who have not received benefits under the old scheme till date shall be entitled
to interest as directed by this Court in paragraph 21 of the decision in Preetam Singh’s
case1. Even those officers and employees who are entitled to benefit of the new pension
scheme in terms of the notification dated 19th May 2009 and who have taken benefits
under the old scheme pursuant to the interim order dated 07th September 2012, will be
entitled to interest on differential amounts, as directed in terms of paragraph 21 of the
decision of this Court in Preetam Singh’s case1;
(iv) Those officers and employees of the Board who have accepted the benefit under
the old scheme before 7th September 2012 after giving an undertaking in terms of the
Office Order dated 16th January 2004 shall not be entitled to the benefit of the new pension
scheme made applicable as per the notification dated 19th May 2009;
(v) While calculating the pension amount payable to those who are entitled to the new
pension scheme in terms of the notification dated 19th May 2009, the benefit of notional
pay fixation in terms of the revised pay structure with effect from 1st January 2006 shall be
(vi) All the officers and employees of the Board who are entitled to benefit of the revised
pay structure in terms of the Government Order dated 14th January 2010 shall be provided
the said benefit within a period of three months from today, if not provided earlier. While
extending the said benefit, their pay shall be notionally determined as per the revised pay
structure with effect from 1st January 2006. However, they shall not be entitled to arrears
of salary as per the revised pay structure from 1st January 2006 till 14th January 2010.
However, in the cases of the employees and officers who have already received the
arrears, no recovery proceedings shall be initiated against them.
46. The impugned judgment and order stands modified in terms of the above
conclusions. The civil appeals are disposed of accordingly with no order as to costs.
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The Supreme Court has reiterated and held that "where an enactment requires to do a certain thing in a certain way, the thing must be done in that way and in no other manner" in the judgment of State of U.P. & Ors. vs. Virendra Kumar & Ors.
A bench of Justices Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath have delivered the judgment which has been authored by Justice Abhay S. Oka.
The brief facts of the case were that under Section 3 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short 'the 1965 Act'), Uttar Pradesh Avas Evam Vikas Parishad (for short 'the Board') was established. The basic object of the establishment of the Board was framing and executing housing and improvement schemes in the State of Uttar Pradesh. The larger issue that was up for consideration before the bench through a reference made by a division bench of the Supreme Court in State of U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 was whether the act of determining service conditions of the employees and officers of the Board is one of the statutory functions of the Board.
First, let's have a look at the three referral questions.
THREE REFERRAL QUESTIONS
The three questions up for consideration before the three judge bench were as follows:
(1) Whether the judgment of this Court in State if U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 laying down that conditions of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas Parishad lays down the correct law more so when the judgment does not refer to provisions of Sections 8, 92, 94(2)(nn)of the 1965 Act ?
(2) Whether the view expressed in Preetam Singh's judgment that functions of the U.P. Avas Evam Vikas Parishad are only the specific functions enumerated in Section 15 of 1965 Act which does not include the service conditions of employees of the Board lays down the correct law ? Whereas the functions of the Board referred to in other provisions of Act, Rules and Regulations as has been expressly provided in Section 15(1) by use of expression "subject to the provisions of this Act and the Rules and Regulations" shall also be functions of the Board which induces service conditions of officers and employees as per Section 95(1)(f) of the 1965 Act.
(3) Whether the State Government had no jurisdiction to issue directions regarding service conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under the provisions of the 1965 Act and 1975 Act and all other enabling powers with the State Government?
The court set out to answer the above questions by engaging itself in a discussion on three key aspects.
POWER TO DETERMINE THE CONDITIONS OF SERVICE OF THE OFFICERS AND SERVANTS OF THE BOARD
The judgment starts by first laying out the bare provisions from the legislation. It states that the statute nowhere grants the state government the explicit power to determine conditions of service of the officers and servants. It clearly distinguishes between the power of the state government to control the recruitment process vis-a-vis the power of the Board to determine the conditions of service of the officers and the servants.
It says, "26…Subsection (1) of Section 8 does not provide that the State Government shall have the power to determine the conditions of service of officers and employees of the Board. The power to control the appointment and the power to put restrictions are distinct and different from the power to determine the service conditions of the officers and servants of the Board. The control of the State Government and the power to impose restrictions as provided in subsection (1) of Section 8 will extend to the creation of posts of officers and servants of the Board. The control can be exercised by directing the creation of different categories of posts. The control can be also exercised by determining the number of posts of different categories.
However, the court then points to a provision within the statute that grants the State government the power to make Rules. In this context it points to Section 94(2)(nn) from the 1965 Act which reads as follows:
Clause (nn) of subsection (2) of Section 94 reads thus :
"94. Power to make Rules. (1) ... ... ... ...
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for
(nn) any matter for which regulation may be made by the Board under Section 95;"
The above clause (nn) of subsection (2) of Section 94 clearly confers power on the State Government to frame Rules in respect of any matter for which regulations can be framed by the Board.
On the other hand, the court says, "Clause (f) of subsection (1) of Section 95 specifically empowers the Board to frame Regulations governing conditions of service of officers and servants of the Board. The reason is that the power to determine the service conditions of the other officers and servants has been conferred on the Board which can be exercised by making Regulations."
After a conjoint reading of the above provision, the court concludes as follows:
"27. In view of subsection (2) of Section 95 read with clause (nn) of subsection (2) of Section 94, Regulations, if any, framed by the Board for determining the conditions of services of its officers and servants are always subject to the Rules which may be framed by the State Government by exercising the power under clause (nn) of subsection (1) of Section 94. Whenever there is any inconsistency between the Regulations framed under clause (f) of subsection (1) of Section 95 and the Rules framed under clause (nn) of sub section (1) of Section 94, the Rules will prevail and to that extent, the provisions of the Regulations which are repugnant to the Rules shall be void. To put it differently, the power to determine the conditions of service of the officers (except the Housing Commissioner) and servants of the Board vests in the Board, and the said power can be exercised only by framing Regulations under clause (f) of sub section (1) of Section 95. So long as Rules are not framed by the State Government under clause (nn) of sub section (1) of Section 95 for overriding the provisions of the Regulations framed by the Board for prescribing the service conditions, the provisions of Regulations shall always govern the field. Except for the exercise of the Rule making power under clause (nn) of subsection (1) of Section 94, there is no specific power conferred under the 1965 Act, or for that matter under the 1975 Act, on the State Government to nullify or to override the conditions of service of its officers and servants determined by the Board by the Regulations framed in the exercise of powers under clause (f) of subsection (1) of Section 95."
FUNCTIONS OF THE BOARD
On the question of the function of the board, the court concluded as follows:
"30…The nature of the functions of a statutory body like the Board will always depend on the object of establishing such a body. The appointment of officers and servants needs to be made for the efficient performance of the specific functions of the Board. The exercise of power to appoint servants and officers of the Board and determination of their service conditions cannot constitute the functions of the Board. The powers under Chapter V and the power of appointing officers and servants under Sections 7 and 8 of Chapter II need to be exercised for ensuring proper discharge of the functions of the Board as well as for the exercise of the powers set out in Chapter III. We are, therefore, of the considered view that the appointment of officers and servants and determination of their service conditions cannot constitute functions of the Board."
POWER OF THE STATE GOVERNMENT TO ISSUE DIRECTIONS TO THE BOARD REGARDING THE DETERMINATION OF THE SERVICE CONDITIONS OF THE BOARD
The issue for consideration before the court was whether the State Government can exercise its power to override statutory Regulations framed by the Board. The court concluded as follows:
As the scheme of the 1965 Act specifically provides that Regulations framed under Section 94 can be overridden by framing Rules in accordance with clause (nn) of subsection (1) of Section 94, the act of overriding the Regulations must be done only by framing the Rules and not in any other manner. This view is supported by a series of decisions of this Court taking a consistent view that where an enactment requires to do a certain thing in a certain way, the thing must be done in that way and in no other manner. There are several decisions taking that view ending with the decision of this Court in the case of Gujarat Urja Vikas Nigam. However, the locus classicus on this point is the well known decision of the Privy Council in the case of Nazir Ahmed v. The King Emperor. The upshot of the aforesaid discussion is that the State Government has no power to issue directions under subsection (2) of Section 92 to nullify or override the Regulations framed by the Board in the exercise of powers under clause (f) of subsection (1) of Section 95.
At the end, the court answered the three questions in the following manner:
(1) The decision lays down the correct proposition of law.
(2) The first part of the question is answered in the affirmative. The functions of the Board are as specified in Section 15 and other relevant sections in Chapter III of the 1965 Act. The second part is answered in the negative.
(3) Answered in affirmative. But the State Government can always frame Rules in the exercise of powers under clause (nn) of sub section (1) of Section 94 of the 1965 Act for determining the conditions of service of the servants and officers of the Board. Whenever there is any inconsistency between Regulations framed under clause (f) of subsection (1) of Section 95 and the Rules framed under clause (nn) of subsection (1) of Section 94, the Rules will prevail and to that extent, the provisions of the Regulations which are repugnant to the Rules shall be void.
Case Title: State of U.P. & Ors. vs. Virendra Kumar & Ors. CIVIL APPEAL NOS.66226623 OF 2022
For Appellant(s) Ms. Aishwarya Bhati, Ld. ASG Mr. V.K. Shukla, Sr. Adv. Ms. Nithin Pavuluri, Adv. Ms. B.L.N. Shivani, Adv. Mr. Rajeev Kumar Dubey, Adv. Mr. Kamlendra Mishra, AOR Mr. Vishwajit Singh, Sr. Adv. Mr. Abhishek Kumar Singh, AOR Ms. Pallavi Baghel, Adv. Ms. Anamika Yadav, Adv. Mr. Pankaj Singh, Adv.
For Respondent(s) Mr. Nidhesh Gupta, Sr. Adv. Mr. Nikhil Majithia, AOR Ms. Japneet Kaur, Adv. Ms. Vriti Gujral, Adv. Mr. P. K. Jain, AOR Mr. Saurabh Jain, Adv. Mr. P.K. Goswami, Adv. Mr. S.P. Singh Rathore, Adv. Mr. Vishwajit Singh, Sr. Adv. Mrs. Veera Kaul Singh, Adv. Mr. Pankaj Singh, Adv. Mr. Abhishek Kumar Singh, AOR Ms. Ridhima Singh, Adv. 2 Mr. Vignesh Singh, Adv. Mr. Jitendra Mohan Sharma, Sr. Adv. Mr. Ajit Sharma, Adv. Mr. Amrit Pradhan, Adv. Mr. Sandeep Singh, Adv. Mr. Sanpreet Singh Ajmani, Adv.
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 - UP Housing and Development Board's function does not include fixing its employees' service conditions- Judgment in State of U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 approved.
|
ivil Appeal No. 34 of 1958.
Appeal by special leave from the order dated July 6, 1956, of the Calcutta High Court in appeal to the section C. No. 32 of 1955.
N. C. Chatterjee and D. N. Mukherjee, for the appellants.
Syamdas Bhattacharya and section N. Mukherjee, for the respondents.
March 29.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The short question of law which arises in this appeal is whether the Calcutta High Court had jurisdiction to extend the time for 645 furnishing security for costs of the respondents under 0.
45, r. 7, of the Code of Civil Procedure.
The Calcutta High Court has held that it had no jurisdiction to extend time as prayed for by the appellants, and so the certificate already granted by it to the appellants to appeal to this Court against its own decree has been cancelled.
The order canceling the said certificate has given rise to this appeal by special leave; and so the only question which we are ca.
led upon to consider is one of construing 0.
45, r. 7, of the Code as well as 0.
XII, r. 3, of the Supreme Court Rules.
The relevant facts leading to the present controversy are not in dispute.
The appellants had instituted a suit (No. 73 of 1944) in the First Additional Court of the Subordinate Judge of 24 Parganas against the six respondents.
In this suit they claimed a declaration of title to the immovable property in question and prayed for recovery of possession of the said property together with mesne profits.
The learned trial judge decreed the suit on March 20, 1948.
Two appeals were then filed against the said decree by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948).
Of these two appeals Appeal No. 135 of 1948 was dismissed but Appeal No. III of 1948 was partly allowed and the decree passed in favour of the appellants granting possession and mesne profits to the appellants against respondent 3 was set aside.
Thereupon the appellants applied for and obtained a certificate from the Calcutta High Court to enable them to appeal to this Court.
The decree under appeal was one of reversal and the valuation of the subject matter of the dispute both in the trial court and in the intended appeal before this Court exceeded the statutory limit prescribed in that behalf and so the appellants 'were in fact entitled to a certificate under article 133 (1)(a) of the Constitution.
Accordingly a certificate was issued on May 18, 1956.
The last date for the deposit of the security amount of Rs. 2,500 and the printing cost of Rs. 1,184 was June 29, 1956.
According to the appellants owing to circumstances over which they had no control they could not deposit 646 he said two amounts on the due date.
Consequently in July 4, 1956, they filed an application before the High Court praying that the requisite amounts tendered by them be accepted after condoning the delay made by them in the payment of the said amounts.
This application was rejected on the ground that according to the uniform current of decisions in the said Court it had no jurisdiction to extend the time for depositing the amount of security.
It is against this order that the appellants have come to this Court by special leave.
O. 45, r. 7, of the Code occurs in the Chapter dealing with appeals to the Supreme Court, and it deals with the security and deposit which are required to be furnished and made on grant of certificate to a party intending to prefer an appeal to this Court.
0. 45, r. 7(l)(a), provides that where the certificate is granted the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, furnish security in cash or in Government Securities for the costs of the respondent.
The word "within ninety days or such further period not exceeding sixty days" which occur in the first part of the rule have been added by Act 26 of 1920 in substitution for the words "six months" which were originally enacted in the said rule.
It is common ground, and indeed it is not disputed, that prior to the amendment made in 1920 High Courts had jurisdiction to extend time for furnishing security for cogent and satisfactory reasons.
In Burjore and Bhawani Pershad vs Mussumat Bhagana (1) the Privy Council had held, agreeing with the view taken by the Full Bench of the Calcutta High Court that the words in section 602 of the Code of 1877 (Act X of 1877), in regard to extending time for giving security in appeal were directive only and there was jurisdiction in the High Court to grant extension of time for cogent reason.
In other words, the time of six months prescribed by the (1) [1883] L.R. 11 I.A. 7.
647 statute could not be departed from without cogent reason.
As a result of this decision under the provisions of 0.
45, r. 7, as they stood until the amending ' Act 26 of 1920 was passed, all the High Courts consistently exercised their jurisdiction in the matter of furnishing securities and extended time where they were satisfied that there was a proper and valid reason to do so.
The question which arises for our decision is whether by the amendment made in 1920 this position has been altered.
There can be no doubt that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule can.
not be extended beyond 150 days; but, does the use of these restrictive words indicate that there is no jurisdiction in the High Courts to extend the period for a sufficient cause ? Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 150 days by the use of the restrictive words the Legislature had intended to take away the preexisting jurisdiction of the High Courts to extend the period for a reasonable cause.
The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendment.
Besides, it is significant that even after the amendment there is no specific provision which provides for the effect of failure to comply with 0. 45, r. 7.
Rule 8 deals with cases where security has been furnished and deposit made, and it provides that on the security being furnished and deposit made the Court shall declare the appeal admitted, give notice thereof to the respondent, transmit to the Supreme Court the record, as therein provided, and give to either party one or more authenticated copies as specified.
There is no rule which prescribes the consequence of non compliance with the order made under r. 7.
Failure to make this provision is not without significance because r. 11 648 expressly provides for the effect of failure to comply with the order made under r. 10.
In other words, where the Court makes an order calling upon the appellant to furnish within a time to be fixed by it other and sufficient security, or to make within like time the required payment, and the appellant fails to comply with the said order, r. 11 expressly provides that on such failure of the appellant the proceeding shall be stayed and the appeal shall not proceed without an order in that behalf of the Supreme Court and in the meantime execution of the decree appealed from shall not be stayed.
It would thus be seen that where the Legislature intended that failure to comply with a specific order should lead to the consequence of a specific result it has made an appropriate provision in that behalf, and so failure to make any such provision in regard to the consequence of non compliance with the order made under r. 7 may suggest that the jurisdiction of the Court to extend time was not intended to be taken away.
Since it is open to the Court to extend time, the Legislature may have thought that it should be left to the discretion of the Court to decide whether the failure to comply with its order under r. 7 should be condoned and the period extended for furnishing security, or whether the default should not be condoned and the certificate should therefore be cancelled.
In our opinion, therefore, reading 0.
45, r. 7, as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule.
High Courts had jurisdiction to extend time prior to the amendment of 1920 and the amendment of 1920 has made no difference in that behalf.
There is another statutory provision which leads to the same conclusion, and that is 0.
XII, r. 3, of the Supreme Court Rules framed by this Court in exercise of its rule making powers under article 145 of the Constitution.
Rule 3 reads thus: "Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court 649 may, on its own motion or on application in that behalf made by the respondent, cancel the certificate, and may give such directions as to the costs of the ' appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case requires.
" This rule corresponds exactly to r. 9 of the Privy Council Rules.
On a fair construction of this rule there appears to be no doubt that if a party having obtained a certificate from the High Court fails to furnish security or to make the required deposit it is open to the High Court to adopt either of two courses; it may cancel the certificate and may give directions as to the costs of the appeal and the security entered into by the appellant or it may make such further or other order as the justice of the case may require; and that clearly suggests that the High Court has jurisdiction to consider the question as to whether the justice of the case requires that the certificate already granted should not be cancelled and further time should be given to the party to furnish the security or to make the required deposit.
The last clause of r. 3 refers to such further or other order as the justice of the case requires, and that must necessarily mean an order other than, and different from, the order canceling the certificate.
It is true that the intention behind this rule might have been differently and better expressed but the object of the rule is plain and unambiguous and its construction presents no difficulty whatever.
Failure to furnish the security or to make the deposit in time does not inevitably and in every case lead to the cancellation of the certificate.
Despite the said failure some further or other order according to the justice of the case may still be passed by the Court in its discretion, and that, in our opinion, must mean an order condoning the default and granting further time to furnish the security or to make the required deposit.
If this be the true position about the effect of 0.
XII, r. 3, of the Supreme Court Rules it would follow that the High Courts would have jurisdiction to extend time for furnishing security even 82 650 if r. 7 of 0. 45 after its amendment in 1920 had taken away the said jurisdiction.
Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court.
Therefore, if 0. xII, r. 3, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a, proper case that provision would not be interfered with by r. 7 of 0. 45.
That is how, apart from the provisions of r. 7 of 0. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case.
However, as we have already held the amendment of r. 7 of O. 45 does not really take away the preexisting jurisdiction of the High Courts to extend time and so there is complete harmony between the said rule and 0.
XII, r. 3, of the Supreme Court Rules.
On this question there appears to be consensus of judicial opinion in the decisions of all the High Courts in India except the Calcutta High Court which for some years past has struck a note of dissent.
It is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions.
It would be enough merely to mention them.
It appears that in some High Courts the present question was referred to a Full Bench and the decisions of the Full Bench have negatived the view which appears to have been taken by the Division Benches in the said High Courts on the earlier occasions that the High Courts had no jurisdiction to extend time (Vide: Nilkanth Balwant Natu & Ors.
V. Shri Satchidanand Vidya Narsinha Bharati & Ors.
(1) (Full Bench); Bishnath Singh & Ors.
vs Balwant Rao Naik Kalia & Ors.
(Full Bench); Gulam Hussain vs Mansurbeg & Ors.
(Full Bench); Lachmeshwar Prasad Shukul vs Girdhari Lal Chaudhuri (4) (Full Bench); Ghulam Rasul V. Ghulam Qutabud din (5) (Full Bench); Thota Pitchaiah (1) Bom.
(3) I.L.R. (2) I.L.R. [1939] All. 549.
(4) (1040) I.L.R. 19 Pat.
(5) Lah.
447. 651 & Or8. 'V. M. Vedanta Narasimhacharyulu & Ors.
(1) (Full Bench); and Ismail Piperdi vs Momin Bi Bi & Ors.
(2) (Full Bench).
Even in Calcutta it was held by the Calcutta High Court by a Full Bench in Roy Jotindranath Chowdhury & Ors.
vs Rai Prasanna Kumar Banerjee Bahadur & Ors.
(3) that the High Court had power to extend time as provided by section 602 of the Code for depositing the estimated cost of translating, transcribing, indexing and transmitting to the Privy Council the records of the case under appeal, but it was added that the Court should not extend time without some cogent reason.
In support of this conclusion the High Court relied upon the decision of the Privy Council in the case of Burjore and Bhawani Pershad (4).
The same view was expressed by the said High Court in Harendra Lal Choudhry vs Sm.
Hari Dasi Debei (5) where it was held that High Court had power to extend the time for depositing costs in Court but it ought not to do so without some cogent reasons.
In reaching this conclusion the Court followed its earlier decision in the case of Roy Jyotindranath Chowdhury (3).
It, however, appears that in Raj Kumar Govind Narayan Singh & Ors.
V. Shamlal Singh & Ors.(6) Chief Justice Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction to extend time for furnishing the security under 0.
45, r. 7, as amended in 1920.
With respect, the question does not appear to have been fully argued before the Court, for the judgment does not discuss the question of construing the relevant provisions of 0. 45, r. 7 or of r. 9, of the Privy Council Rules, and indeed the earlier decisions of the Court on that point do not appear to have been cited either.
Even so, this decision was subsequently followed and that led to a consistent practice in the said High Court on which the learned judges have relied in rejecting the appellant 's application for extension of time in the present case.
In this connection it may be relevant.
to note that when this question was raised before the (1) I.L.R. [1956] Andhra 55.
(3) (5) (2) (4) (1883) L.R. 111 I. A. 7.
(6) 652 Calcutta High Court again in Akimuddin Chowdhury vs Fateh Chand Mahesri & Ors.
(1) Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant Natu (2) in support of the argument that there was a jurisdiction to extend time for furnishing security, but he observed that though he had great respect for the said Full Bench decision there was a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan Singh( ') and so he was bound to follow the said decision and conform to the practice prevailing in the Calcutta High Court.
In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan Singh (3) is not justified either by the provisions of 0.
45, r. 7, of the Code or 0.
XII, r. 3, of the Supreme Court Rules.
We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security.
On the view which it took the High Court naturally did not examine the merits of the appellants ' case that there were sufficient and cogent reasons for condoning the delay.
We would therefore allow the appeal, set aside the order passed by the High Court and remit the matter to that Court for disposal of the appellants ' application in accordance with law.
In the circumstances of this case there would be no order as to costs.
Appeal, allowed.
(1) [1939]44 C.W.N. 920.
(2) Bom.
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On an application made by the appellant, the Calcutta High Court granted a certificate on May 18, 1956, enabling him to appeal to the Supreme Court against the judgment and decree of the High Court.
Under 0. 45, r. 7(1)(a), of the Code of Civil Procedure, 1908, the appellant had to deposit the security amount for costs of the respondent within ninety days or such further period, not exceeding sixty days, as the court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever was the later date.
Being unable to deposit 644 the amount on the due date, the appellant filed an application on July 4, 1956, before the High Court praying that the amount tendered by him be accepted after condoning the delay, but the High Court rejected it on the ground that according to the uniform current of decisions of that Court it had no jurisdiction to extend the time for depositing the amount.
Held, that reading 0.
45" r. 7, of the Code of Civil Procedure, 1908, along with the other relevant provisions Of the said Order, a High Court has jurisdiction to extend time for furnishing security under the rule, and that the decisions of the Calcutta High Court to the contrary are erroneous.
Order XII, r. 3, of the Supreme Court Rules, 1950, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security in a proper case.
Raja Kumar Govind Narayan Singh and others vs Shamlal Singh and others, 1 and Akimuddin Chowdhury vs Fateh Chand Mahesri & others, , disap proved.
Roy Jyotindranath Chowdhury & Ors.
vs Rai Prasanna Kumar Banerjee Bahadur, (1906) 11 C.W.N. I 104, Harendra Lal Choudhry vs Sm.
Hari Dasi Debei, , Nilkanth Balwant Natu & Ors.
vs Shri Satchidanand Vidya Narsinha Bharati & Ors., Bom.
430, Bishnath Singh & Ors.
vs Balwant Rao Naik Kalia & Ors., I.L.R. [1939] All 549, Ismail Piperdi vs Momin BiBi & Ors, , Lachmeshway Prasad Shukul vs Girdhari Lal Choudhuri, Pat. 123, Ghulam Rasul vs Ghulam Qutabud din, (1942) I.L.R.23 Lah.447, Gulam Hussain vs Mansurbeg & Ors., I.L.R. and Thota Pitchaiah Andhra 55, approved.
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Civil Appeal Nos. 416 of 1973 and 572 of 1974.
(From the Judgment and Decree dated 22 12 1972 of the Allahabad High Court in F.A. No. 465/54 connected with F.A. 65/55).
A. K. Kirty, Yogeshwar Prasad, S.K. Bagga, Mrs. section Bagga Miss Rani Arora for the Appellant (in CA.Facts No. 416/73 and Respondent No. 1 in CA. No. 572/_74).
G.B. Pal, R.K. Mehta, Pramod Swarup and Miss Uma Mehta for the Appellants (in CA 572/74 and Respondents 1 3 in CA.No. 415/73).
B. Sen, S.M. Jain, Indra Makwana and Sushil Kumar Jain for Respondents 5/2, 5/3 and 6 (in CA.No. 416/73).
S.T. Desai, Rajinder Singh and S.K. Dhingra for Respond ents 7 & 8 (in CA.No. 416/73).
The Judgment of the Court was delivered by JASWANT SINGH, J.
These two appeals by certificates granted under Article 133 of the Constitution which are directed against the common judgment and decree dated Decem ber 22, 1972 of the High Court at Allahabad in two connected Civil First Appeals Nos. 465 of 1954 and 65 of 1955 pre ferred against the judgment and preliminary decree of the Second Additional Civil & Sessions Judge, Agra, dated April 5, 1954, in suit No. 76 of 1949 shah be disposed of by this judgment.
The facts material for the purpose of these appeals are: The appellant in Appeal No. 416 of 1973 and respondent No. 1 in appeal No. 572 of 1974, Seth Loonkaran Sethiya, (hereinafter referred to for convenience as 'the plain tiff ') is a financier living and carrying on business in Agra.
Respondents Nos. 1 to 3 in the first appeal and appellants Nos. 1 to 3 in the second appeal viz. Ivan E. John, Maurice L. John and Doris Marzano, grandsons and grand daughter of one A John, are partners of the regis tered, firm called 'John & Co. '.
There are three spinning mills and one flour mill at Jeoni Mandi, Agra, which are compendiously described as 'John Mills '.
Originally, the members of the John family were the exclu sive owners of all these mills which have been in existence since the beginning of the current century.
In course of time, some strangers acquired interest therein and by the time the present lis commenced, the following became the joint owners thereof to the extent noted against their names : 1.Ivan E. John, Maurice L. John and Doris Marzano, appellants Nos. 1 to 3 in Appeal No. 572 of 1974 and respondents Nos. 1 to 3 in .Appeal No. 416 of 1973 Partners of the firm 'John & Co. ', appellant No. 4 in Appeal No.572 of 1974 and respondent No. 4 in Appeal No. 416 of 1973:11/40th share.
2. Seth .Munilal Mehrs (respondent No. 6 in appeal No. 416 of 1973 and respondent No. 9 in Appeal No, 572 of 1974).and Hiralal Patni (respondent No. 5 in Appeal No. 416 of 197.
3, 'deceased 'and now represented by respondents Nos, 5/1 to 5/7 i3 the 'said appeal and represented by respondents Nos. 2 to 8 in Appeal No. 572 of 1974):19/40th share 3.Gambhirmal Pandya (P) Ltd. part ner in M/s. John Jain Mehra & Co,: 8/40th share .
4.Ivan E. John: 2/40th share Having run into financial difficulties, M/s John & Co. were driven to tap various sources for raising loans for their business and other requirements.
By virtue of the deed of agreement (Exn. 1321 ) dated June 14, 1947, they entered into a financial agreement with Sethira & Co., a partnership firm of the plaintiff and Seth Suganchand.
Under this agreement which was originally meant to last for five months but which was allowed to remain in force even after 'the expiry of that period Sethiya & Co. undertook to advance to M/s John & Co. funds to the extent of Rs. 8,00,000/ on the security of yarn and to act as sole selling agents of the latter.
On January 29, 1948, the Collector, Agra, attached moveable and immoveable properties of the mills pursuant to a certificate issued for reali zation of income tax dues for the years 1943 to 1945 out standing against M/s John &Co. which exceeded Rs. 20 lakhs.
On February 5, 1948, the Collector, Agra, appoint ed Ivan E. John, Maurice L. John and Doris Marzano as custo dians for running the mills.
On February 9, 1948, the aforesaid agreement (Exh. 1321) dated June 14, 1947, with Sethiya & Co. which continued to remain in operation beyond its original term was renewed upto the end of April, 1948, by agreement (Exh. 1320).
This agreement gave an option to the partners of Sethiya & Co. to allow it to continue in force until their dues were 857 paid in full by M/s John & Co. These financial agreements with Sethiya & Co. did not prove adequate to meet the mone tary requirements of M/s John & Co. Accordingly on the same day i.e. on February 9, 1948, they entered into another agreement (Exh. 1319) with the proprietory concern of the plaintiff carrying on business under the name and style of 'M/s. Tejkaran Sidkaran ' whereby the latter agreed to advance certain amounts to them against mortgage of cotton, its products and bye products which might be in their stock from time to time during the continuance of the agreement.
By this agreement, M/s John & Co. also undertook to pay to M/s Tejkaran Sidkaran a sum of Rs. 2,09,245 9 10 which, on going into the accounts, was found to be due to the latter in respect of the supply of cotton.
Nearly five months thereafter i.e. on July 6, 1948 the aforesaid partners of M/S. John & Co. succeeded in obtaining another financial accommodation from Sethiya & Co. vide agreement Exhibit 168: Exhibit A 1.
By this deed, the financiers agreed, for the efficient working of the mills, to advance loan, as and when required, upto the limit of Rs. 25 1/2 lakhs to the partners of M/s John & Co. on condition that they i.e. the financiers would have a floating and prior charge for all monies due to them for the time being including the amount due to them on the date of the agreement and all monies which they might choose to advance under the agreement, on all business assets including stores, coal, oil process etc of the aforesaid three spinning mills.
Describing himself as the sole proprietor of the firm 'Sethiya & Co.; and 'M/s. Tejkaran Sidkaran '.
Seth Loonkaran Sethiya flied in the Court of the Civil Judge, Agra on April 18, 1949 an original suit, being suit No. 76 of 1949 against M/s. John & Co. ' and its aforesaid partners (hereinafter referred to as 'the defendants first set ') as also against Munnilal Mehra, Hiralal Patm and Gambhirmal Pandya and M/s John.
Jain Mehra & Co., (hereinafter referred to as 'the defendants second set ') for recovery of Rs. 21,11,500/ with costs and pendente lite and future interest by sale o.f .the assets of M/s John & Co. and for permanent injunction re straining the defendants first set from committing any branch of the aforesaid agreement dated July 6, 1948 as also for declaration that he had a prior and floating charge on all the business assets of M/s John.& Co.
The suit was later on amended by the plaintiff with the permission of the trial Court.
By his amended petition of plaint, the plain tiff sought a decree against the defendants first set as also against the defendants second set.
The case of the plaintiff was that Mr. Ivan E. John, Mr. Maurice L. John and Doris Marzano who were part owners of the aforesaid three spinning mills and a flour mill as also certain other properties and had been carrying on their business and running the mills under the name and style of John & Co. being heavily indebted and in urgent need of money to pay arrears of income tax as well as other dues and to carry on day to day business of the milks approached him time and again for finances, loans etc.for the aforesaid purposes, that he 'lent considerable sums of money under various agreements executed by the defendants first set in his favour and in favour of the firm 'M/s Tejkaran Sidkaran of which he was the sole owner and in that of Sethiya & Co.; that on or about July 6, 1948 all accounts between his 858 firm 'Sethiya & Co. ' and defendants first set were gone into and after a full scrutiny thereof, a settled amount of Rs. 12,72,000/ was found to be due to Sethla & Co. from the defendants first set upto June 30, 1948; that this amount as admitted and accepted by the defendants first set and was as such debited in their account books and was also acknowl edged by them in the subsequent agreement entered into by them with him; that the aforesaid settlement, the de fendants first set solicited further financial help from him to run the mills and to meet their pressing liabilities which was acceded to by him on the terms and conditions set out in the agreement dated July 6, 1948 (Exh. 168); that by this agreement, he agreed inter alia to advance requisite funds to the defendants first set (for carrying on the business of the mills 'and payment of the claims of Raja Ram Bhawani Das and to meet other liabilities) up to the limit of Rs. 20 lakhs inclusive of the aforesaid amount admittedly found due to him from the defendants first set on the date of the agreement and to make a further advance of a sum of Rs. 5,50,000/ on the security of business assets and stocks other than bales of yarn and cotton; that it was also stipu lated that he would have a floating and prior charge for the entire amount due to him on the date of the agreement on all the business assets including stores, coal, oil process etc of all the three spinning mills of the defendants first set and that he would be paid interest at the rate 6 per cent per annum from date of including liability in respect of each individual item besides commission at the raw of 1 per cent on all sales of products of the three spinning mills whether sold directly or otherwise during the currency of the agreement and a luther commission at the rate of 12 per cent on value of all the purchases of cotton required for consumption of the three spinning mills and godown rent as might be agreed.
The plaintiff further averred that it was specifically agreed between him and the defendants first set that the agreement would be in operation for the minimum period of one year and would also continue to be in force thereafter until the entire amount due to him from the defendants first set was fully paid up.
The plaintiff further averred that the accounts of business done by him under the name of M/s Tejkaran Sidkaran with the defendants first set were gone into and finally the defendants first set admitted that a sum of Rs. 17,79,100/ was due from them to his firm 'M/s Tejkaran Sidkaran ' and that under their written authority, he transferred the above liability to his firm 'Sethiya & Co. ' and thus all accounts of the defendants first set with him were amalgamated in one account i.e. of Sethiya & Co. and the account of his firm 'M/s Tejkaran Sidkaran ' with the defendants first set was squared up and closed.
The plaintiff further averred that the defendants second set including Hiralal Patni, the ex financier of the John Mills who had not despite best efforts succeeded in securing possession of the mills as co proprietor thereof entered into partnership with the defendants first set under the name and style of M/s John Jain Mehra & Co. and mali ciously induced them to commit breaches of the agreement dated July 6, 1948 by forcibly turning out his representa tives who used to remain incharge of the stocks, stores, coal, waste etc of the mills and making them enter into a finance agreement contrary to the terms of the agreement with his firm.
The plaintiff also alleged that the defendants first set had at the instigation of the defendants second set unjustifiably closed the business of John & Co. 859 and were colluding with the latter who were guilty of misap propriation and conversion of the goods over which he had a prior and floating charge.
The plaintiff also averred that on April 4, 1949, accounts were again gone into between him and the defendants first set and a sum of Rs. 47,23,738/4/9 were found due to him from them; that agreement dated July 6, 1948 between him and the defendants first set still subsisted and would continue to subsist till July 6, 1949 and thereafter at his option till all his dues were paid up; and that a sum of Rs. 21,11,500/ was due to him from the defendants first set as per Schedule A of the plaint which both sets of the defendants were liable to pay.
The statement of account as contained in Schedule A annexed to the plaint was as follows: Rs. a. p. "1.
Settled balance on 4th April, 1949 according to accounts books of the def endants.
(The accounts upto 4th April, 1949 were fully gone through and se ttled by both the parties and confirmed by the defendants by making nec essary entries in their books 45,74,980 10 1 2.
Plaintiff 's charges of commission, interest, godown rent etc., according to the terms of the agreement and duly checked by the defendant 's accountant and chief Account officer as detailed below: From 13th October to 31st October, 1948 14,516 13 6 From 1st November to 12th December 33,783 4 3 From 13th December to 12th January 1949 34,100 3 3 From 13th January to 12th February, 1949 38,716 12 3 From 13th February to 12th March, 1949 27,632 9 2 Total 1,48,749 10 8 9th April, 1949 paid to Mahalaxmi Oil Mills through Kirpa Narayan advocate and others .
8,708 5 0 10th April 1949 paid to Bishambar Nath & Co. (for Cotton supplied to John & Co.) 1,57,005 3 0 Charges from 13th March to 12th April, 1949 62,804 12 3 Total 49,52,2489 0 9th April, 1949: Proceeds by sale of 5731 bales of yarn sold by defendants as per their authorities 28,40,748 9 0 Balance 21,11,500 0 0 Twenty one lacs, eleven thousand five hundred only.
5 /338SCI/76 860 The suit was contested by both sets of defendants on various grounds.
Defendants first set inter alia pleaded that there was no 'settlement of accounts between them and the plaintiff as alleged by the latter; that 'the accounts were liable to be reopened as they were tainted with fraud, obvious mistakes etc., and that on a true and correct ac counting a large sum of money would be found due to them; that though the plaintiff and Seth Sugan Chand (who owned Indra Spinning and Weaving Mills and had a covetous eye on John Mills) had obtained various documents, agreements, vouchers, receipts etc.at various times from them, the same were of no legal value as they were secured by the former by practising undue influence, fraud, coercion and misrepresentation.
It was further pleaded by the defendants that :the plaintiff had illegally and contrary to the agreement dated July 6, 1948 debited them with huge amounts which were not really due to them.
It was further pleaded by the said defendants that the cotton supplied to them by the aforesaid financiers was of inferior quality and the amounts charged by them in respect thereof were exorbitant and far in excess of the prevailing market rates.
The said defendants further pleaded that though under the terms of the agreement dated February 9, 1948 no commission on sales and purchases had been agreed to be paid by them to the financiers still they had been debited with huge amounts on that account and likewise though simple interest had been stipulated in the said agreement compound interest with monthly rests had been debited to their account which was not at all justified.
The said defendants also disputed their liability to pay certain items of expenditure like demurrage, wharfage etc.which had been debited to their account.
It was also pleaded by the said defendants that the plaintiff had no floating or prior charge on any of their stocks, stores etc.nor could any such charge be claimed by him in law; that the suit was barred by the provisions of Section 69 of the Part nershlp Act and that the agreement dated July 6, 1948 which was insufficiently stamped could not form the basis of the suit.
In the written statement filed by them the defendants second set denied the allegations and insinuations made against them by the plaintiff and raised a number of techni cal and other pleas.
They also pleaded that the plaintiff alone .was not entitled to file the suit concerning the firm M/s. Sethiya as it did not belong to his joint Hindu family but was a partnership firm.
The trial court framed as many as 21 issues and on a consideration of the evidence adduced by the parties it held inter alia that the suit as brought by the plaintiff was maintainable; that though the plaintiff had failed to prove that the dissolution of the partnership between him and Seth Sugan Chand took place on June 30, 1948, and no alternate date of dissolution subsequent to June, 30, 1948, had been set up by him, it was evident from the record that the dissolution took place some time after July 30, 1948, and before the institution of the suit; that the suit being one for recovery of the assets due to a dissolved partnership firm from a third party was not barred by Section 69 of the Partnership Act; that Seth Sugan Chand was not a necessary party to the suit; that agreement dated July 6, 1948, was duly stamped and that no undue influence etc.was exercised by the 861 plaintiff on the defendants first set in relation to the execution of the agreements between Sethiya & Company and the defendants first set.
The ,trial court also held that there was no accounting on April 4, 1949, as alleged by the plaintiff and that both the plaintiff and the defendants first set committed a breach .of agreement dated July 6, 1948.
The breach committed by the defendants first set according to the trial court lay in their unjustifiably handing over possession to M/s. John Jain Mehra & Co. of the goods on which the plaintiff held a charge thereby furnish ing him with a cause of action against both sets of defend ants.
The trial court also held that under clause 13 of the agreement dated July 6, 1948, a charge in favour of the plaintiff was created in respect of the entire business assets including stock in trade, stores, coal, oil etc.lying inside the three spinning mills which were being run by John & Company; that defendants first set utilised con sumed and otherwise dealt with the goods which were burdened with the floating charge from July 6, 1948, to April 13, 1949, when John & Co. ceased to be a going concern and there was a final rupture between the plaintiff and the defendants I st set and the plaintiff 's floating charge got fixed or crystalised.
It also found that defendants second set were not entitled to prior charge on the properties of John & Co. existing on April 13, 1948, and were liable to satisfy the plaintiff 's claim as despite notice of his floating charge they consumed, converted and misappropriated stocks and stores and other business assets of the defendants first set.
Finally, the trial court held the plaintiff to be entitled to a decree for Rs. 18,00,152/ against both sets of defendants but rejected his claim for specific perform ance and injunction.
It accordingly passed a preliminary decree against both the sets of defendants on April 5, 1954 directing them to deposit the said amount in Court within the prescribed time and in default, gave the plaintiff a right to apply for a final decree for the sale of all the business assets, goods, stocks, stores etc.of the three spinning mills as mentioned in the operative portion of its judgment.
The decree also gave a right to the plaintiff to apply for a personal decree against the defendants first set and the defendants second set for the balance of his claim in case the net sale proceeds of the said property were found insufficient to discharge his claim.
Aggrieved by the said judgment and decree of the trial court, the plain tiff preferred an appeal, 'being first appeal No. 465 of 1954, before the High Court at Allahabad claiming the following reliefs : "(a) A decree for a further sum of Rs. 64,082/3/5 by which amount his claim was reduced by the trial (b) Such rate of interest as he might be entitled to on the aforesaid sum of Rs. 64,082/3/5 under the agreement dated July 6, 1948; (c) Interest on the sum already decreed at the rate agreed to under the agreement dated July 6, 1948; (d) Injunction in terms of para 47(b) of the plaint and specific performance of the agreement dated July 6, 1948; 862 (e) Costs of the appeal and costs which the lower court wrongly disallowed or deducted and also interest on the costs already award ed; (f) A decree for sale of the shares of the defendants in the machinery over which he had a charge.
" M/s John Jain Mehra & Co., of which the defendants first set too were partners, also preferred an appeal against the aforesaid judgment and decree of the trial court, being first appeal No. 65 of1955, praying that the decree passed by the trial court in favour of the plaintiff be set aside and the suit dismissed with costs throughout.
The High Court allowed both the appeals No. 465 of 1954 and No. 65 of 1955 partially by its aforesaid judgment dated December 22,1972, holding inter alia that no fraud, undue influence, coercion or misrepresentation was prac tised by the plaintiff on the defendants first set in con nection with the execution of agreement dated February 9,1948, or agreement dated July 6,1948 (which is the basis of the suit); that the agreement dated July 6,1948, was neither insufficiently stamped nor did it require registra tion; that though it appeared that the deed of dissolution dated July 22, 1948, was prepared for the purpose of the case, there was sufficient evidence on the record to indi cate that Seth Suganchand had withdrawn from the partnership carried on under the name of Sethiya & Co. with effect from June 30, 1948, and had nothing to do with the transaction evidenced by the agreement dated July 6,1948, which was entered into by the plaintiff as the sole proprietor of Sethiya & Co., that the entire rights and liabilities flowing from the agreement dated July 6, 1948 having become the rights and liabilities of the plaintiff alone and the suit not being one for recovery of dues of a dissolved partnership firm arising out of a cause of action which accrued before the dissolution of the firm, neither Seth Suganchand was a necessary party to the suit, nor was the suit barred under section 69 of the Partnership Act; that the alterations in the deed of agreement dated July 6, 1948 pointed out by the defendants were not material alterations and did not render the agreement void; that the plaintiff had a floating charge over the business assets of John & Co., that it was the defendants first .set and not the plaintiff who committed breach of the agreement by wrongful ly delivering possession of the charged goods on or after April 13, 1949 i.e. after ceasing to be a going concern to M/s. John Jain Mehra & Co. a partnership firm of which the defendants first set became a constituent part by virtue of agreement dated April 11, 1949 that despite the knowledge of the aforesaid prior charge, M/s John Jain Mehra & Co. illegally intermeddled with the charge goods and used them for their own business; that the plaintiff 's floating charge on the assets of the defendants first set valuing Rs. 13,25,000/ became crystallised on April 13,1949 when on default of the defendants first set, he intervened by bring ing the suit to recover all his out standings by sale of the charged properties; that the charge of the plaintiff having become crystallised, as indicated above, the defendants first and second set held the properties as trustees and were liable to make them 863 available to the plaintiff for recovery of his dues; that keeping in view the legal position as well as the nature of the transactions involved, the practice of courts and the fact that the litigation between the parties had been suffi ciently protracted, it would be reasonable to award pendente lite as well as future simple interest from the date of the decree to the date of actual payment or realization at the rate of 4 per cent per annum on the principal sum adjudged; that though keeping in view the facts that no balance was struck on April 4, 1949 in the Rokar (Exh. 179) of Sethiya & Co. and the auditor 's report which showed that no specific figure was mutually agreed upon on accounting on that date, it could not be said that accounts were finally settled between the parties on April 4, 1949, the defendants first set had failed to point out which entry in the charts (Exh. 6103 to 6112) produced by the plaintiff was wrong; that Rs. 49,35,925/5/7 were advanced by Sethiya & Co. to the defend ants first set under the agreement dated July 6, 1948, from the date of its execution to the date of the suit; that a sum of Rs. 11,17,000/ was due to old Sethiya & Co. from the defendants first set upto June 30, 1948 under the agreements dated June 14, 1947 and February 9, 1948; that Rs. 1,55,000/were advanced by Sethiya & Co. on July 3, 1948 to the defendants first set for purchase of the share of Beni Madho; that in accordance with the obligation undertaken by it under para 1 (8) of the agreement dated July 6, 1948, Sethiya & Co. paid, on the basis of transfer voucher (Exh. 3039) dated February 28, 1949, drawn by the defendants first set, a sum of Rs. 17,79,100/ to Tejkaran Sidkaran in full satisfaction of the amount due to the latter under the agreement dated February 9, 1948; that whereas the aggregate of the debit items came to Rs. 82,47,380/15/4, the aggre gate of the credit items came to Rs. 71,13, 712/6/6 leaving a balance of Rs. 11,33,668 and paise 55 which the defend ants first set were liable to pay to the plaintiff; that since the receivers appointed by the court at the instance of the plaintiff after the institution of the suit were able to secure possession of the charged properties that existed prior to April .11, 1949 and it had not been estab lished that there was a removal from the mills ' premises of the said properties or dissipation thereof because of the aforesaid conversion and detention, the plaintiff was not entitled to the decree for money against the defendants second set; that the plaintiff could, no doubt, proceed against the charged goods which were in the custody of the receivers for recovery of his dues but as No. property on which he held a charge or on which his floating charge crystallised had remained in the custody of the defendants second set after the appointment of the receivers, no li ability for his dues could be fastened on them nor could he obtain a decree for specific performance against them.
In the result, in modification of the decree passed by the trial Court, the High Court passed a preliminary decree for Rs. 11,33,668.55 with proportionate costs and pendente lite and future interest from the date of the decree to the date of the actual payment or realisation at the rate of 4 per cent per annum on the principal sum of Rs. 10,87,674.05 in favour Of the plaintiff and against the defendants first set but dismissed the suit with costs as against the defendants second set.
The High Court made it obligatory for the defendants 864 first set to pay or deposit in Court the aforesaid sum of Rs. 11,33,668.55 together with interest within six mouths of the passing of the decree failing which it held the plaintiff entitled to apply for a final decree for sale of all the business assets, goods, movables, stocks, stores etc.mentioned in the inventory of Shri P.N. Raina, Commissioner, and the receivers ' inventories.
The High Court further directed that if the net sale proceeds of the said property were found insufficient to satisfy the plaintiff 's aforesaid amount, he would get a personal decree against defendants 1 to 3 for the balance of his claim remaining due after scale.
The High Court also directed that a sum of Rs. 28, 662/9/ . the sale proceeds of cotton waste over which the plaintiff had charge and which was in deposit with the Bank in the Court 's ac count would also be utilised towards the satisfaction of the aforesaid amount decreed in the plaintiff 's favour.
It is against this judgment and preliminary decree that the present appeals are directed.
We have heard counsel for the parties at length and gone through the entire record relevant for the purpose of the appeals before us.
As per contentions of the counsel, the following main questions arise for our determination : (1) Whether the first 'sethiya & Co. ' (of which the plaintiff and Seth Suganchand were partners) was dissolved with effect from June 30, 1948, as claimed by the plaintiff ?
(2) Whether the agreement dated July 6, 1948, was entered into by the plaintiff with the defendants first set as a sole proprietor of Sethiya & Co. or was it entered into by his as a partner of Sethiya & Co. '?
(3) Whether the suit is barred by section 69 of the Partnership Act ?
(4) Whether Seth Suganehand was a necessary party to the suit ?
(5) Whether any material alterations were made in the aforesaid agreement dated July 6, 1948, which rendered it void ?
(6) Whether the suit which was based upon accounts stated or settled could be dealt with in the manner in which it has been done ?
(7) Whether in addition to the imposition of burden on the charged business assets etc.of John & Co. for satisfaction of the decretal amount, the defendants second set could be saddled with any liability in that behalf ?
We shall take up these question seriatim.
Questions Nos. 1 & 2.
: As these two questions are inextricably linked up, they have to be dealt with together.
865 According to the plaintiff, the firm Sethiya & CO., which was formed by him in partnership with Seth Sugan chand for the specific purpose of providing money against pledge of goods to the defendants first set and to act as their sole selling agents and which consequently entered into financial agreements with the said defendants vide exhibits 1321 and 1320 on June 14, 1947, and February 9, 1948, respectively was dissolved with effect from June 30, 1948, and thereafter he alone carried on dealings with the said defendants in the name: of Sethiya & Co. and M/s Tejkaran Sidkaran as their sole proprietor and as such, the agreement (Exh. 168) dated July 6, 1948, was entered into by him with the said defendants as the sole proprietor of Sathiya & Co. On the contrary, the defendants assert that the firm 'Sethiya & Co. ' was in existence on July 6, 1948, and thereafter as well.
Let us examine the material on the record and see which of these contentions is correct.
While the plaintiff relied in support of his contention upon the deed of agreement (Exh. 168) dated July 6, 1948 and the deed of dissolution dated July 22, 1948 produced by him, the defendants strongly relied upon Exhibit A 1 and cer tain other documents.
A close scrutiny of these documents and other evidence adduced in the case clearly negatives the contention of the plaintiff and goes a long way to support the assertion of the defendants.
It would be noted that in the preamble of Exh.A 1 which is admittedly a counter part of Exh. 168, the word 'partner ' occurs after the word 'Sethiya ' and before the word 'of ' and in conso nance with its preamble, Exh.A 1 has been signed by the plaintiff, Seth Loonkaran Sethiya, as a partner of M/s Sethiya & Co. Now though the word 'partner ' occurring in the preamble of Exh.has been scored out, it has not been initialled either by the plaintiff or by any one of the partners of John & Co. It is also significant that while affixing his signatures on Exh. 168 and its counterpart Exh.A 1 the plaintiff described himself as a partner of M/s Sethiya & Co, The contention of the plaintiff that his partnership with Seth Suganchand came to an end with effect from June 30, 1948, and the agreement dated July 6, 1948 was entered into by him with the defendants first set as the sole proprietor of Sethiya & Co. is further falsified by the dissolution deed dated July 22, 1948, itself produced by him before the trial Court on December 13, 1949 which would have passed muster if the defendants had not been vigilant.
It seems that on seeing this deed written partly on an impressed stamp paper of Rs. 10/ which was not in use in July, 1948, the suspicion of the defendants about the spurious character of the deed was aroused and they hastened to make an application requesting the trial court that in view of the fact that the deed appeared to have been 'anti dated and manufactured for the purpose of the case ', the stamp papers on which it was written be sent to the officer in charge, India Security Press, Nasik, for examina tion and report as to when the said stamp papers were issued for sale from the press.
The reaction of the plaintiff to this application and his subsequent conduct in relation to the investigation sought to be made to get at the truth regarding the date of issue of the aforesaid impressed stamp Paper and consequently regarding the alleged dissolution of the firm 'Sethiya & Co. ' is revealing.
It is amazing that the 866 simple request made by the defendants which should have been readily agreed to by the plaintiff if he had been innocent was stoutly opposed by him.
The circumstances in which the so called deed of dissolution of partnership dated July 22, 1948, and the report dated February 27, 1950, of the Assistant Master, India Security Press, Nasik disclosing that 'the first high value (Rs. 10/ ) impressed stamp in the type of water marked paper as used in the document dated July 22, 1948,was printed in his Press on November 23, 1948, and as such couldnot have been, existence on July 22, 1948 the alleged date of execution of the document disap peared is very intriguing It is also remarkable that when during the cross examination of the plaintiff on March 29, 1950, in connection with the issue relating to the bar of section 69 of the Partnership Act the defendants wanted to make use of the aforesaid report from the India Security Press, Nasik, and it came to light that the report and the original deed of dissolution set up by the plaintiff were missing, the plaintiff came forward with an amusing applica tion stating therein that "in the interest of the early disposal of the case, he undertakes not to rely on that document in the suit and to argue the case without that.
The manner in which the plaintiff behaved when the defend ants attempted to have the duplicate copy of the aforesaid report of the Assistant Master,India Security Press obtained by the Court proved is no less interesting.
A reference to the minutes of proceedings of the trial Court shows that after the Court had, at the request of the de fendants and with the consent of the plaintiff 's counsel, passed the order on May 21, 1950, for issuing a commission to Nasik for examination of the said officer of the Press in respect of the aforesaid report about the impressed stamp paper, the plaintiff made an application for stay of that order and on Jully 4, 1950, his counsel, Shri Walter Dutt, made the following statement : ,lm15 "The court may for the purpose of deciding the issue under section 69, Partnership Act take into consideration the fact that the "document purporting to be a dissolution deed executed between the partners of Sethiya & Co. is not genuine although this fact is not admitted by the plaintiff and the court may therefore, discard such portions of the oral evidence of both plaintiff and Seth Suganchand as it considers would be rendered unreliable if the view be taken that the document in question was a fabricated one and the court may presume that the document was not executed on the date on which it purports to be executed.
" On a consideration therefore of the totality of the tell tale facts and circumstances especially the aforesaid description of the plaintiff as partner of Sethiya & Co. in the preamble and at the food of Exh.A 1 and Exh. 168, the clumsy attempt made to obliterate the aforesaid description in the preamble of Exh. 168.the execution of a part of the so called deed of dissolution of partnership dated July 22, 1948 on the aforesaid non judicial impressed stamp Paper of the denomination of Rs. 10/ which was not in existence on July 22, 1948, the 867 resistence offered by the plaintiff to the defendants ' application requesting the Court to call for a report from the India Security Press, Nasik, about the data of issue of the said stamp Paper, the aforesaid report No. 780/26 dated February 27, 1950 of the India Security Press, Nasik, that Rs. 10/ non judicial impressed stamp paper which had been used for part execution of the aforesaid deed of dissolution had not been printed before November 23, 1948, the disappearance of the said deed of dissolution of partnership of Sethiya & Co. set up by the plaintiff and the report of the Assistant Master of the India Security Press, Nasik, the defendants ' endeavour to ' have the dupli cate copy of the aforesaid report of the India Security Press, Nasik about the impressed stamp paper of the denomi nation of Rs. 10/obtained by the Court proved and the plain tiff 's frentic efforts to thwart the attempt firstly by making an application stating therein that he would not rely on the aforesaid deed of dissolution dated July 22, 1948, secondly, by making an application for stay of the order passed by the trial Court regarding issue of a commission to Nasik for formally proving the report of the India Security Press and thirdly, by asking his counsel, Shri Waiter Dutt to make the above quoted statement strongly incline us to think in agreement with the subdued findings of the trial Court that the aforesaid deed of dissolution was fabricated by the plaintiff with the dishonest intention of playing a fraud on the Court and gaining an undue advantage over the defendants.
In addition to the facts and circumstances set out above, the debit of items of Rs. 1,55,000/ and Rs. 1, 68, 552/12/6 to the account of the partnership firm 'Sethiya & Co. ' on July 3, 1948, and July 10, 1949, respectively and issue by the plaintiff of cheques No. BL 003628 dated July 16, 1948 (Exh.B 11)for Rs. 1,55,000/ , No. BL 003634 dated July 16, 1948 (Exh. B 12) for Rs. 25,000/, No. BL 004636 dated July 20, 1948 (Exh. B 13) for Rs. 73,000/, No. BL 003630 dated July 9, 1948 (Exh. B 14) for Rs. 10,000/ , No. BL 003635 dated July 17, 1948 (Exh. B 15) for Rs. 16,500/ , No. 'BL 003632 dated July 10, 1948 (Exh. B 16) for Rs. 1,30,000/ , and No. BL 003633 dated July 10, 1948 (Exh. B 17) for Rs. 1,68,552.14/6 as partner of Sethiya & Co. also go to demolish the theory of dissolution of the firm ' 'S ethiya & Co. ' on June 30, 1948 which the plaintiff sought to build up on sandy foundations and furnish as eloquent proof of the fact that the firm was very much in existence when the agreement (Exh. 168) dated July 6, 1948, came into being.
It has also to be borne in mind that service by post or advertisement in some paper of notice about the retire ment of a partner from a partnership firm on persons who are in know of the existence of the firm and have been carrying on dealings with it is of utmost importance to prevent them from assuming that the partnership continues.
In the in stant case, it is manifest from the evidence educed by the plaintiff himself that neither he nor Seth Suganchand gave notice in writing to the defendants first set that the latter had retired from Sethiya & Co. with effect from June 30, 1948.
The evidence also makes it clear that the con cerned persons and the general public were 868 not informed about the retirement of seth Suganchand from the partnership firm 'Sethiya & Co. ' by publication of a notice in some paper.
The absence of these notices further belie the plea of the plaintiff regarding dissolution of the partnership firm 'Sethiya & Co. ' on June 30, 1948.
That the plaintiff 's story regarding dissolution of the firm 'Sethiya & Co. ' is a complete myth also receives strong support from the fact that although approximately Rs.1,1 0,000/ are admitted by Seth Suganchand to be due to him from the partnership not a farthing appears to have been paid to him nor any document acknowledging the liability appears to have been passed on to him.
The letter (Exh. 21) addressed to the Manger, Bank of Bikaner Ltd., Agra, intimating to him that Seth Suganchand had withdrawn from the partnership of Sethiya & Co. on which strong reliance is placed on behalf of the plaintiff is not helpful to him as it was not sent to the Bank before July 20, 1948.
The alleged dissolution of the partnership between Seth Suganchand and the plaintiff not having been established, it can be safely presumed in view of the above circumstances that the partnership between them continued to subsist at least upto July 20, 1948.
We are accordingly of the opin ion that the firm 'Sethiya & Co. ' was not dissolved with effect from June 30, 1948, as claimed by the plaintiff, and that the agreement dated July 6, 1948, was entered into by the plaintiff with the defendants first set not as the sole surviving proprietor of Sethiya & Co. but as a partner of the firm 'Sethiya & Co. ' Question No. 3: For a proper determination of this question, it is necessary to refer to section 69 of the Partnership Act, 1932, the relevant portion whereof is reproduced below for ready reference : "69."(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of of Firms as partners in the firm.
(3) The provisions of sub sectiOns (1) and (2) shall apply also to a claim of set off or other proceeding to enforce a right arising from a contract, but shall not effect (a) the enforcement of any fight to sue for dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or . " 869 A bare glance at the section is enough to show that it mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm whether existing or dissolved, void.
In other words, a partner of a erstwhile unregistered part nership firm cannot bring a suit to enforce a right arising out of a contract falling within the ambit of section 69 of the Partnership Act.
In the instant case, Seth Suganchand had to admit in unmistakable terms that the firm 'Sethiya & Co. ' was not registered under the Indian Partnership Act.
It cannot also be denied that the suit out of which the appeals have arisen was for enforcement of the agreement entered into by the plaintiff as partner of Sethiya & Co. which was an unregistered firm.
That being so, the suit is undoubtedly a suit for the benefit and interest of the firm and consequently a suit on behalf of the firm.
It is also to be borne in mind that it was never pleaded by the plain tiff, not even in the replication, that he was suing to recover the outstandings of a dissolved firm.
Thus the suit was clearly hit by section 69 of the Partnership Act and was not maintainable.
Question No. 4: It would be noticed that the present suit has been brought by the plaintiff alone and in spite of the objection raised on behalf of the defendants, he did not care to implead Seth Suganchand who was a necessary party to the suit.
Assuming without holding therefore, that section 69 of the Partnership Act did not apply to the present case, the plaintiff could not in any event maintain the suit for recovery of the aforesaid amount (which was made up of items, some of which were admittedly due to the old Sethiya & Co.) without impleading Seth Suganchand.
Question No. 5 : Before proceeding to determine this question it would be well to advert to the legal position bearing on the matter As aptly stated in paragraph 1378 of Volume 12 of Halsbury 's Law: of England (Fourth ' Edition) "if an alteration (by erasure, interli neation, or other wise) is made in a material part of a deed, after it execu tion, by or with the consent of any party to or person entitle, under it, but without the consent of the party or parties liable under it, but without the consent of the party or parties liable under it, the deed is rendered void from the time of the alteration so as to prefer the person who ' has made or authorised the alteration, and those claim ing under him, from putting the deed in suit to enforce against an party bound by it, who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made.
A material alteration, according to this authoritative work, is on which varies the rights, liabilities, or legal position of the parties a ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and a such void, or which may otherwise prejudice the party bound by the deed as originally executed.
870 The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed.
" To the same effect are the observations made by the Privy Council on Nahtu Lal & Ors.vs Musarnat Gomti and Ors.(1).
Now a comparison of Exh.A I (produced by the defendants first et) with Exh. 168 (produced by the plaintiff)would show that besides the obliteration of the word 'partner ' from the preamble as stated above, the plaintiff made two other alterations in Exh.
Originally, the second proviso to sub clause (8) of clause 1 of the agreement stood as given in Exh.A 1 ran thus: "The payment for purchase of cotton will be made on the first (underlining is ours) day of its receipt in the mills of the partners.
" In Exh 168, however, the word 'first ' has been changed into 'tenth ' thus making it read as "the payment for pur chase of cotton will be made on the tenth (underlining is ours) day of its receipt in the mills of the partners.
" The third alteration is no less important.
As would be evident from Exh.A 1, sub clause (3) of clause 12 of the agreement as actually drawn up between the parties read as follows : "A commission of Rupee one percent on value of all sales of products of the above three spinning mills, viz. yarn, and newar, whether sold directly by the partners or otherwise but delivered and produced during the currency of this agreement." After the alteration, the clause has been made to read as follows on Exh.168 : "A commission of Rupee one percent on value of all sales of products of the above three spinning mills, viz. yarn, and newar, whether sold directly by the partners or otherwise but delivered or produced during the currency of this agreement.
" As a result of the last change, the word 'and ' has been substituted by the word 'or '.
As the above mentioned alterations sub stantially vary the rights and liabilities as also the legal position of the parties, they cannot be held to be anything but material alterations and since they have been made without the consent of the defendants first set, they have the effect of cancelling the deed.
Question No. 5 is, therefore, answered in the affirmative.
(1) A.I.R. 1940 P.C. 160.
871 Question No. 6 The plaintiff 's suit, as already indi cated, was for a specific and ascertained sum of money on the basis of settled account.
The courts below have con currently found that there was no settlement of account on April 4, 1949, as alleged by the plaintiff.
After this finding, it was not open to them to make out a new case for the plaintiff which he never pleaded and go into the ac counts and pass a decree for the amount which they consid ered was due from the defendants first set to the plaintiff.
They should have, in the: circumstances, either dismissed the suit or passed a preliminary decree fox accounts di recting that the books of account be examined item by item and an opportunity allowed to the defendants first set to impeach and falsify either wholly or in part the accounts on the ground of fraud; mistakes, inaccuracies or omissions for it is well settled that in case of fraud or mistake, the whole account is affected and in surcharging and satisfying the accounts, errors of law as well as errors of fact can be set right.
By adopting the latter course indicated by us, the defendants first set would have got a fair and adequate opportunity of scrutinizing the accounts and showing whether they were tained with fraud, mistake, inaccuracy or omission or of showing that any item claimed by the plaintiff was in fact not due to him.
Question No. 7 : The High Court has for cogent reasons held that the goods on which the burden of charge lay being available for the satisfaction of the liabilities, if any, under the agreement dated July 6, 1948, the defendants second set could not be held personally liable for payment of the decretal amount.
The opinion expressed by the High Court is correct and we see no warrant or justification to interfere with the same.
In view of the foregoing, we have no hesitation in holding that as material alterations have been made by the plaintiff in the agreement dated July 6, 1948 (which is the basis of the suit) rendering it void and as the bar of section 69 of the Partnership Act clearly applies to the case, the suit is clearly untenable and has to be dismissed.
the result, Appeal No. 572 of 1974 is allowed and the suit out of which it arose is dismissed.
Consequently, Appeal No. 416 of 1973 fails and is dismissed.
In the circumstances of the case, parties are left to Pay and bear their own costs of these appeals.
C.A. 572/74 allowed.
P.H.P. C.A. 416/73 dismissed.
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Messrs.John & Co. were in financial difficulties and, therefore, entered into a financial agreement with Sethia & Co. a partnership firm of the plaintiff and Seth Sugan Chand.
On 6th July, 1948 Messrs. John & Co. obtained anoth er financial accommodation from Sethia & Co. Messrs. Tejka ran Sidhkaran had also given some advances to Messrs. John & Co. The liability to the firm of Messrs. Tejkaran Sidhkaran was transferred to Sethia & Co. Seth Loonkaran Serbia filed a suit against John & Co. and his partners (defendants first set) as well as Messrs. John, Jain, Mehra & Co. and its partners.
(defendants second set) for recovery of Rs. 21,11,500/ with costs and future interest and for a declaration that the plaintiff had a prior and floating charge on all the business assets of Messrs. John & Co. It was alleged by the plaintiff that the defendants (second set) entered into partnership with the defendants (first set ) under the name and style of Messrs. John Jain, Mehra & Co and maliciously induced them to commit breach of the agreement dated 6 7 1948 by forcibly turning out his representatives who used to remain in charge of the stocks, stores.
coal, waste, etc., of the mills and making them enter into a financial agreement contrary to the terms of the agreement with his firm.
The plaintiff also alleged that accounts were again settled on 4 4 1949 and a sum of Rs. 47,23,738/ was found due to him from the defend ants.
The defendants (first set) contended that there was no settlement of accounts; that the accounts were tainted with fraud and obvious mistakes and that on a true and correct accounting a large sum of money would be found due to them; that the plaintiff and said Sugan Chand obtained various documents, agreements, vouchers, receipts etc., and that the same were of no legal value as they were secured by the former by practising undue influence, fraud, coercion and misrepresentation; that the plaintiff had illegally and contrary to the agreement dated 6 7 1948 debited them with huge amounts which were not really due to them; that the cotton supplied by the plaintiff was of inferior quality and that the rates charged were exorbitant.
It was also denied that the plaintiff had floating or prior charge on any of their stocks, stores, etc; that the suit was barred by the provisions Of section 69 of the Partnership Act and that the agreement dated 6 71948 which was insufficiently stamped could not form the basis of the suit.
The defendants.
(second set) also denied the claim of the plaintiff.
The Trial Court held that the suit was maintainable; that the firm of Messrs. Sethia & Co. was dissolved before the institution of the suit; that the suit being one for the recovery of the assets due to a. dissolved partnership firm from a third party, was not barred by section 69 of the Partnership Act: that Seth Sugan Chand was not a necessary party to the suit; that the agreement dated 6 7 1948 was duly stamped and that no undue influence etc., was exercised by the plaintiff on the defendants; that there was no ac counting on 4 4 1949 as alleged by the plaintiff and that both the plaintiff and the defendants (first set) committed a breach of the agreement dated 6 7 1948.
The Trial Court also held that a charge was created in favour of the plain tiff in respect of the entire business assets and that the defendants (second set) were liable to satisfy the plain tiff 's claim.
The Trial Court decreed the plaintiff 's suit to the extent of Rs. 18,00,152 but rejected his claim for specific performance and injunction.
The Trial Court accord ingly passed a preliminary decree against both the sets of defendants directing them to deposit 854 the said amount in the court within the prescribed time and in default gave the plaintiff a right to apply for a final decree for the sale of all the business assets, goods, stocks, stores, etc.
The decree also gave a right to the plaintiff to apply for a personal decree against the defend ants for the balance of his claim in case the net sale proceeds of the property of the firm were found insufficient to discharge his claim.
The plaintiff filed an appeal in the High Court of Allahabad and the defendants also filed an appeal against the judgment of the Trial Court.
The High Court allowed both the appeals partially holding that no fraud, undue influence, coercion or misrepresentation was practised by the plaintiff; that the agreement dated 6 7 1948 was neither insufficiently stamped nor did it require registration; that the deed of dissolution dated 22 7 1948 was prepared for the purpose of the case but there was sufficient evidence on the record to indicate that said Sugan Chand had withdrawn from the partnership carried on in the name of Serbia & Co. with effect from 30 6 1948; that Seth Sugan Chand was not a necessary party to the suit; that the suit was not barred.
by section 69 of the Partnership Act; that the alterations in the deed dated 6 7 1948 were not material alterations and did not render the agreement void; that the plaintiff had a floating charge over the business assets of John & Co.; that it was defendants (first set) and not the plaintiff who committed breach of the ' agreement.
The High Court, there fore, passed a preliminary decree for Rs. 11,33,668/ in favour of the plaintiff and against the defendants (first set) but dismissed the suit with costs as against the de fendants (second set).
The High Court granted certificate under Article 133 in both the appeals.
Dismissing the plaintiff 's appeal and allowing the appeal of the defendants (first set) held: (1) Section 69 of the Partnership Act is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void.
[869 A] (2) A partner of an erstwhile unregistered partnership firm cannot bring a suit to enforce a right arising out of a contract failing within the ambit of section 69 of the Partnership Act.
The suit out of which the appeals arise was for enforcement of the agreement entered into by the plaintiff as partner of Serbia & Co. It was never pleaded by the plaintiff not even in his replication that he was suing to recover the outstanding of a dissolved firm.
Thus the suit was clearly hit by section 69 ' and was not main tainable.
[869 B C] (3) A close scrutiny of the document and other evidence clearly negatives the plaintiff 's claim that the firm was dissolved with effect from 30th June 1948.
[865 C] (a) The agreement dated 6th July 1948 itself is signed by the plaintiff as a partner and the, expression partner also appears in the body of the agreement.
[865 D] (b) The alleged deed of dissolution dated 22nd July 1948 between the plaintiff and Seth Sugan Chand was prepared on a stamp paper printed in the Government Press in November, 1948.
The said Dissolution Deed was, therefore, clearly fabricated by the plaintiff.
The plaintiff signed various cheques in July, 1948 as the partner of Sethia & Co. [865 F H; 866 A C; 867 F] (c) No service by post or advertisement in the newspaper about the dissolution was given either by the plaintiff or by Seth Sugan Chand.
[867 F] (4) Seth Sugan Chand was a necessary party to the suit and in spite of the objections raised on behalf of the defendants the plaintiff did not care to implead ' Seth Sugan Chand.
The suit was bound to fail on that ground also.
[869 D E] (5) A material alteration in a document without the consent of a party to, it has the effect of cancelling the deed.
[870 A] Volume 12 of Halsburys Laws of England (Fourth Edition) referred to.
855 Nathu Lal & Ors.
vs Musammat Gomti & Ors.
(A.I.R. relied on.
In the present case there were many material alterations of the document.
The material alterations, therefore have the effect of cancelling the deed in question.
[870 B D] (6) The plaintiff 's suit was for a specific and ascer tained sum of money on the basis of settled account.
The Courts below found concurrently that there was no settlement of account as alleged by the plaintiff on 4th April 1949.
After that it was not open to the courts below to make out a new case for the plaintiff which he never pleaded.
The courts be.low could have either dismissed the suit or passed a preliminary decree for accounts directing that the books of account be examined item by item and an opportunity allowed to defendants to impeach and falsify the accounts.
[871 A C]
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l Appeal Nos.
335 342/1982.
From the Judgment and Order dated 18.8.1981 of the Punjab and Haryana High Court in Regular First Appeal Nos.
2605, 2604,2606,2610,306,308, 10 and 11 of 1980.
D.V. Sehgal, L.R. Singh and Yunus Malik for the Appellants.
Ranjit Kumar and G.K. Bansal (NP) for the Respondents.
J.: By Notification published in the Haryana State Gazette on October 12,1976, under section4(1) of Land Acquisition Act 1 of 1894 for short 'the Act ', the respondent Union Territory of Chandigarh acquired a total extent of 70.09 acres of land situated in Manimajra near Chandigarh for a public purpose, namely, to set up Brick Kilns therein.
The lands comprised in different Khasra numbers within H.B. No. 375, out of which 63.09 acres are Abi cultivated lands, the rest are Barani (rainfed land) and, ghair munkin (waste land) bouldars, trenches etc.
By award dated January II, 1977, the Collector fixed a sum of Rs. 23,600 as market value of Abi, Rs. 17,000 per acre to Barani and Rs. 12,000 to Ghair Munkin lands.
On reference under section 18, the Civil Court enhanced the compensation to Rs. 33,600 per acre to Abi lands and no enhancement to other categories with solatium at 15 per cent and interest at 6 percent per annum on the 374 enhanced compensation from the date of taking possession till date of payment.
On appeal the learned Single Judge in R.F.A. No. 2605 of 1980 etc, by judgment dated August 18, 1981 confirmed the same.
Thus these appeals by special leave.
As common questions of law arise for decision, they are disposed of by common judgment.
Appellants ' contentions is that the acquired lands possessed of potential value for residential and commercial purposes and there is no justification for classification of the lands and all the lands are entitled to parity to determine the market value.
By notification dated June 30, 1976 in the same village under the same H.B. No. 375, 54.37 acres were acquired for construction of Motor Market Complex.
The Collector and the Civil Court awarded the same market values as were fixed in these appeals but the learned Single judge denied parity of market value to these lands while enhancing the market value at Rs. 75,000 per acre to the similar lands in belting No. 2 and awarded @Rs. 3, 72,200 to the lands abutting the main road upto a depth of 140 feet in other case.
Therein the Single Judge relied upon exhibit P28 of the year 1972 in which 17 marlas of land was sold @Rs. 75,000 per acre, Having relied upon the same and having enhanced the market value, the same yardstick should have been applied in awarding market value to the lands under acquisition.
The learned counsel also placed strong reliance on 6 mutation entries which would show that the market value of the lands ranges between Rs. 1,16,000 to 1,60,000 per acre and the appellants, therefore, are entitled to compensation at least @ Rs. 75,000 as claimed by them.
He also contended that having found that the lands are possessed of potential value being similar to the lands in other appeal, the appellants are entitled to parity in determination of the market value as well.
The Haryana Govt, acquired by notification dated January 8,1971 vast extent of lands in Judian Village for Mansa Housing and Commercial Complex and thereunder Abi/irrigated lands were awarded at a sum of Rs. 28,800 per acre which was confirmed by the High Court.
After five years the notification was issued on October 12, 1976, the Court should have taken note of steady rise in prices and have suitably enhanced the market value.
Since no one was appearing for the respondent, we sent for Mr. Ranjit Kumar, the previous standing counsel for the Union Territory, Chandigarh and requested him to assist the court.
Accordingly he has meticulously analysed the entire evidence and rendered valuable assistance.
He contended that the lands are situated beyond railway line on North West and 1/2 k.m.
to the motor market on the other side of the road.
The lands are nearer to Sukhna Choe (lake) at a distance of one furlong.
The mutation record is not admissible as none, connected with the sale transactions, were examined to prove the documents; the grounds for sales, comparative advantages and their respective situation.
The motor market is situated in a developed area on the Eastern side of the road and the lands in these cases are 375 located away from those lands.
Shri Ranjit also contended that lands in Judian Village for Mansa Housing and Commercial Complex were nearer to abadi possessing better amenities and they do not afford any comparable grounds.
He contended that the lands for canalisation of Sukhna Choe was acquired by notification dated March 21, 1972 and the Reference Court upheld the award of the Collector at Rs. 15,525 for Abi lands which was confirmed by the High Court.
The location being very near to the lands under requisition, they offer reasonable base to fix market value.
Notification was issued under s.6 of the Punjab New Capital (Perefery) Control Act, 1952, freezing development of the lands situated within a radious of 10 miles from Chandigarh boundary for any residential and commercial purposes.
Therefore, they are not possessed of any potential value.
The learned Judge on the same day decided both the cases upholding the award of the Civil Court in these cases while enhancing the market value in motor market cases relied on by the appellants.
He was aware of the location and differential value between two types of land.
Therefore, he was not inclined to enhance the market value of the land under acquisition.
The first question that arises for consideration is whether the High Court has committed any legal error in affirming the market value determined by the Reference Court.
The Dist, Judge, Chandigarh in L.P.J. No. 105/70 and batch, found that the total extent of the land acquired is 70.09 acres, 560 Kanal 15 mawla, out of which 63.91 (51 i Kanal) 6 Marla are Abi land and 4.22 (33 Kanal 15 Marla) is Barani land and the rest are Ghair Munkin lands.
It is admitted by the witnesses that the acquired land is nearer to the railway track and also situated at a distance of 1 1/2 k.m.
from timber and motor market.
They are situated in wide area with the population of about 3000 3500.
There are about 200 shops situated in Manimazra town.
The acquired land is towards north western side of Manimazra.
The railway line is 2 to 3 furlong from Manimaira on the northwestern side.
They are also situated near the boundary of Chandigarh and one furlong from Sukhna Choe.
It was also admitted that part of the land is situated in Sector 26.
Thus it could be seen that the lands are situated very near to Chandigarh.
Neither the appellants nor the Land Acquisition Officer had examined witnesses in proof of the sale transactions referred in mutation entries exhibit P4 to P8 on behalf of the appellants and R1 and R2 on behalf of the respondent.
It is settled law that claimant is entitled to just and reasonable compensation and under section 23 to determine the market value of the lands the prevailing prices as on the date of the publication of the notification under section 4(1), the sale transaction of the same lands or sales of lands situated in the neighbourhood would furnish as evidence of comparable sales.
The price which a hypothetical willing vendor might reasonably expects to obtain from a willing purchaser would form the basis to fix the market 376 value.
It would be possible to have reliable evidence when sale transactions are proved by either the vendor or the vendee and if either of them was not available, the attesting witness who had personal knowledge of the transaction is to be examined by producing either the original sale deed or certified copies thereof as evidence.
Under section 5 1A of the Act as amended in 1984 the certified copies have been permitted to be brought on record as evidence of sale transaction recorded therein.
The examination of the witnesses is to find that the sale transactions are bonafide and genuine transactions between willing vendor and willing vendee as reasonable prudent men and the price mentioned is not throw away price at arms length or depressed sales or brought into existence to inflate market value ,of the lands under acquisition and the sales are accommodating one.
Equally it must be brought on record the comparative nature of the lands covered under the sale deed and the acquired lands whether adjacent or actual distance or possessed of similar advantages and whether transactions themselves are genuine and bonafide trans actions.
This proposition of law, since settled law, in fairness, has not been disputed across the bar.
The contention is that at the relevant time it was not being insisted upon.
Therefore, none of the witnesses were called to prove the sale deeds or to prove the sale transactions.
Therefore , when evidence of potential value is available, the same could be considered.
We find merit in the contention.
At one time we thought of remanding the cases but we find that it would be needless prologation and the complexion on ground by now would have been completely changed.
In view of the above settled legal position and the circumstances, the documentary evidence of sale transactions or in the mutation entries on either side are clearly not admissible and therefore, they cannot be looked into, and are accordingly excluded from consideration.
The only question, therefore, is whether the lands are possessed of potential value and whether the same treatment could be meted out to Abi and Barani lands.
Ghair Munkin land stands on a different footing and, therefore, they cannot be equated with the Abi and Barani lands.
The situation of the lands as extracted here in before clearly shows that the lands are situated very close to developed Chandigarh planned city and are very near to Sukhna Lake and are also nearer to railway track.
They are situated within the freezed zone for future potential development of the city.
Thereby, it is clear that though the acquisition was for establishment of Brick Kilns, by its very nature may not immediately be capable of being used for residential or commercial purposes, but certainly possessed of potential value for future development as residential and commercial purposes.
Then what would be the reasonable market value prevailing as on the date of notification.
As rightly contended by Shri Ranjit Kumar that there is a distinction between the lands acquired for motor market or Mansa Housing Complex on one hand and the lands under acquisition on the other hand, though the lands are Abi 377 lands.
The acquired lands are situated on the western side of Manimazra Panchkula road and the motor market was situated on the other side of the road.
Therefore, the market value of the land acquired for motor market do not tender any assistance as comparable prices.
Obviously for that reason the same learned Single Judge while deciding both the appeals on the same day declined to enhance the market value to these lands while he awarded to lands in 2nd belt at Rs. 75,000 per acre.
We have no information whether any appeal was filed against that judgment.
But certainly the facts of these cases would assist us to assess a fair and reasonable compensation in fixing the market value though an amount of guess work is involved.
We are conscious of the fact that it should not be founded on feats of imagination hedged with undue emphasis of compulsory deprivation of the possession of the land of the appellants, for the exercise of State 's power of eminent domain, statutory solatium is the premium the state pays.
Therefore, the approach should be pragmatic to recompense the appellants to secure alternative lands or to invest in profitable business for rehabilitation.
It is seen that the Reference Court awarded a sum of Rs.33,600 per acre to Abi land.
There is a steady rise in prices as reflected in the judgment in the other appeals relied on by the learned counsel for appellants.
The High Court also recorded a.finding in that behalf in those appeals.
The lands are situated in the same H.B. No. 375, though at different places and distance having future potential development.
Considering the totality of the facts and circumstances we find that market value @ Rs. 42,000 per acre would be just and fair.
This value should be for Abi and for Barani lands at Rs. 38,000 per acre and the market value to ghair munkin land at Rs. 12,000 per acre awarded by the Civil Court is confirmed.
The appellants are entitle to Solatium and interest on the enhanced market value at 15 per cent and 6 per cent respectively from the date of taking possession till the date of payment as the award and the order of the Civil Court are prior to the periods mentioned in the Amendment Act 1984 came into force.
In the circumstances parties are directed to bear their own costs.
G.N. Appeals Partly allowed.
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The Respondents acquired some lands for setting up Brick Kilns.
The lands consisted of Abi (cultivated land), Barani (rainfed land) and ghair munkin (waste land) and the Collector fixed the compensation @ at Rs. 23,600, Rs. 17,000 and Rs. 12,000 per acre of the respective lands.
On a reference the Civil Court enhanced the compensation to Rs.33,600 per acre for Abi lands.
No enhancement was allowed in respect of the other categories of land.
It however allowed solatium at 15 % and interest at 6 % p.a. on the enhanced compensation.
On appeal, a Single Judge of the High Court confirmed the same.
These appeals were filed against the said Judgment of the High Court.
The appellants contended that the acquired lands had the potential value for residential and commercial purposes and there was no justification for classification of the lands and all the lands shall be treated at party in determination of market value; that in a similar case, the market value was enhanced to Rs. 75,000 per acre and in view of the fact that certain mutation entries showed a market value of similar lands ranging from Rs. 1,16,000 to Rs. 1,60,000, per acre the appellants claimed for compensation of at least at Rs. 75,000 per acre.
On behalf of the Respondents it was contended that the mutation record was not admissible as no one connected with the sale transactions was examined to prove the documents, the ground for sales, comparative advantages and their respective situation; that the lands possessed comparable or better amenities and whether the lands are very near to the lands under 372 acquisition.
The compensation awarded by the Collector at the rate of Rs. 15,525 per acre was upheld by the Reference Court, and this offered ' a reasonable base to fix the market value of the lands under acquisition.
Partly allowing the appeals, this Court, HELD: 1.
Neither the appellants nor the Land Acquisition Officer had examined witnesses in proof of the sale transactions referred in the mutation entries.
It is settled law that a claimant is entitled to just and reasonable compensation under section 23, To determine the market value of the lands, it is necessary to examine witnesses to prove the prevailing prices as on the date of publication of the notification under section 4(1).
The sale transaction of the same Lands or sales of lands situated in the neighbourhood possessed of same or similar advantages would furnish as evidence of comparable sales.
It would be possible to have reliable evidence when sale transactions are proved by either the vendor or the vendee and if either of them was not available, the attesting witness who had personal knowledge of the transactions is to be examined by producing either the original sale deed or certified copies thereof as evidence.
Since at the relevant time it was not being insisted upon, none of the witnesses were called to prove the sale deeds or to prove the sale transactions.
Thus, the documentary evidence of sale transactions or the mutation entries on either side are clearly not admissible and therefore, they cannot be looked into, and are accordingly excluded from consideration.
(375 GH, 376 (H E) 2.
The situation of the lands dearly shows that the lands are situated very dose to developed Chandigarh planned city and are very near to Sukha Lake and the railway track.
They are situated within the freezed zone for future potential development of the city.
Though the acquisition was for establishment of Brick Kilns, by its very nature the lands may not immediately be capable of being used for residential or commercial purposes, but certainly possessed of potential value for future development as residential and commercial purposes.
There is a distinction between the lands acquired for Motor Market or Mansa Housing Complex on the one hand and the lands under acquisition on the other hand, though the lands are Abi lands going by the situation of the lands, the market value of the land acquired for motor market do not render any assistance as a comparable price.
This would be of assistance to assess a fair and reasonable compensation in fixing the market value though an amount of guess work is involved.
This Court is conscious of the fact that it should not be founded on feats of imagination hedged with 373 undue emphasis of compulsory deprivation of the possession of the lands of the appellant.
For the exercise of State 's power of eminent domain statutory solatium is the premium the State pays.
Therefore, the approach should he pragmatic to recompense the appellants to secure alternative lands or to invest in profitable business for rehabilitation.
It is seen that the Reference Court awarded a sum of Rs. 33,600 per acre to Abi land.
No doubt there is a steady rise in prices of lands.
Considering the totality of the facts and circumstances, the market value @ Rs. 42,000 per acre would be just and fair for Abi lands and at Rs. 38,000 per acre for Barani lands.
The market value of ghair munkin land at Rs. 12,000 per acre awarded by the Civil Court is confirmed.
The appellants are entitled to solatium and interest on the inhanced market value at 15 per cent and 6 per cent respectively from the date of taking possession till the date of payment as the award and the order of the Civil Court are prior to the periods mentioned in the Amendment Act 1984 came into force,.
(376G,H, 371 A F))
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Special Leave Petition (Civil) No. 7914 of 1989.
From the Judgment and Order dated 26.5.1989 of Delhi High Court in S.A.O. No. 296 of 1984.
V.M. Tarkunde and S.K. Gupta for the petitioner.
Dr. Y.S. Chitale, Ramji Srinivasan, P.K. Jain and Ra vinder Nath for the respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Tenant inducted in 1979, for three years, 2by the landlord under a written agreement, in C 4/33, Saf darjang Development Area, New Delhi, with permission of Controller under Section 21 of Delhi Rent Control Act (for brevity the 'Act ') seeks leave of this Court on limited question of law if proceedings for recovery of possession under Section 21 of the Act could be initiated and continued by legal representatives of the landlord who had obtained permission but who died before expiry of period of tenancy.
Answer of it shall depend, primarily, on construction of word 'landlord ' used in Section 21, a provision held to be self contained code in Shiv Chand Kapoor vs Amar Bose, ; and also the purpose and objective of its enactment as provision of short duration tenancy or periodi cal tenancy in Rent Control Act of Delhi right from 1952, is unique amongst such legislations and is probably non exist ent in any other State.
It reads as under: 28 21.
"Recovery of possession in case of tenancies for limited period: (1) Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period, vacate such premises, then, notwithstanding anything contained in Section 14 or in any other law, the Controller may, or an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evict ing the tenant and every other person who may be in occupa tion of such premises.
(2) while making an order under sub section (1), the Con troller may award to the landlord such damages for the use or occupation of the premises at such rates as he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant.
" What it, undoubtedly, projects is the legislative aware ness of acute crisis of houses in the State.
To resolve the paucity of accommodation, on one hand, due to enormous influx of office personnel and business class as a result of rapid growth of social, economic and political activity and apprehension of house owners, on other, bulk of whom hail from middle class or service class, of loosing their houses if not for good then for substantial period due to develop ment of strange phenomenon in big cities that allotted or rented houses are more economical than, even, own the legis lature which is the best judge of need of its people carved out an exception to usual rent control provisions of pro tecting tenants from eviction What was unique of it was not short duration tenancy but a fresh look on eviction.
Vacant possession was ensured, statutorily, without any notice, or termination of tenancy or the hazard of establishing bona fide need and comparative hardship etc.
Since sec.
21 is an exception to Section 14 and it mandates restoration of possession, "notwithstanding any other law" it has to be construed strictly and against any attempt to frustrate it.
Intensity of it can be appreciated better if its language, is compared 29 with other provisions of recovery of possession even though those provisions, namely, secs.
14A, 14B, 14C and 14D, were introduced later.
They also provide speedy remedy to recover possession.
But the landlord cannot succeed unless he is able to prove circumstances mentioned in it.
More than this the tenant has been given right to contest under Section 25B. Import of Section 21 on the other hand is altogether different.
It enjoins Controller to place landlord in vacant possession after expiry of time without any right to tenant to contest it except to the limited extent that permission was vitiated by fraud as held in S.B. Noronah vs Prem Kumari Khanna, ; or misuse of the provision by land lord taking advantage of helpless situation of the tenant as held in V.S. Rahe vs Smt.
Rem Chambeh, ; or the permission really did not create genuine tenancy as held in Shiv Chand Kapoor vs Amar Bose, supra.
Recovery of pos session under Section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of those exceptions which have been carved out by courts, obviously, to uphold fairness and honesty the core of our jurispru dence.
Right to get vacant possession is, thus absolute.
Purpose and objective of the Section having been ascer tained, it may now be examined if the word "landlord" used in the second part of the Section which empowers landlord to make an application for recovery of possession is to be understood as the same landlord who made the application or his legal representatives as well.
In other words, is there any justification for construing the word "landlord" in a narrow sense so as to restrict it, only, to the person who made the application and obtained permission.
"Landlord" has been defined in Section 2(e) as under: "2(e). 'landlord ' means a person who, for the time being is receiving, or is entitled to receive, the rent of any prem ises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.
" Expression, "for the time being" makes it clear, that land lord has to be understood in praesentii.
That is anyone entitled to receive rent is the landlord.
It does not visua lise, past or future landlord.
Therefore, the word "land lord".
on plain reading of Section 21 does not warrant construction of the word in any other manner.
Basis for submission, however, that landlord in second part of Section 21 entitling him to 30 claim vacant possession should be confined to the person who obtained permission was rounded on use of expression, "who does not require the whole or any part of the premises for a particular period.
" Attempt was made to personalise eviction proceedings by linking it with the person, due to whose non requirement the permission was granted resulting in automatic exclusion of legal representatives.
To put it interpretationally the word "landlord", in second part was urged to be understood in a manner different than it is defined in Section 2(e).
Can it be said that context or setting of Section 21 is such that the word "landlord" in second part of it should be understood in a different sense than that in definition clause? Not on prima facie reading of it which has already been adverted to.
Neither on close analysis.
What is visualised is occasion for short duration tenancy due to non requirement of whole or part of premises by landlord for time being; method of its creation by writ ten agreement entered with tenant, statutory status to it by permission obtained from Controller and execution by resto ration of vacant possession if the tenant does not vacate after expiry of period.
All condensed in one.
Construction ally it is in two parts one creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate independently.
Non requirement of premises for time being furnishes basis for entering into agreement for periodical tenancy.
Truth of it on its genu ineness are relevant considerations for granting permission.
But it exhausts thereafter except to the limited extent pointed out in decisions referred earlier.
And the permis sion granted continues unabated, unaffected irrespective of variation in requirement.
Necessity of landlord, again, does not entitle him to seek its revocation.
Even his death cannot shorten the period.
Similarly once period expires the agreement, the permission all cease to operate by operation of law.
Nothing further is required.
Vacation is not linked with landlord but with time.
Expiry of it obliges tenant to vacate.
If he does not then the landlord may approach Con troller for putting him in vacant possession.
Which land lord? Obviously whosoever is the landlord at the time of afflux of tenancy.
Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affected.
Use of expression notwithstanding any other law render it obligatory on tenant to vacate without questioning au thority of landlord.
Any other construction, may, as rightly observed by the High Court lead to disastrous consequences.
Even on principles of civil law the provision for recovery of possession being in nature of execution it could not be successfully resisted on the death of landlord due to whose non requirement the permission was granted.
Such narrow and 31 unreaIistic construction of the word 'landlord ' shall frus trate entire purpose of Section 21.
Maxim of actio personalies mortiur cum personna cannot apply, either, on principle or on facts.
In Supreme Bank vs
P.A. Tendulkar; , this Court while dis cussing applicability of the maxim held "whatever view one may take of the justice of the principle it was clear that it would not be applicable to actions based on contract or where tort feasers ' Estate had benefitted from a wrong done.
Its applicability was generally confined to actions for damages for defamation, seduction inducing a spouse to remain apart from the other and adultery." In Phool Rani vs Naubat Rai, ; a decision which was relied by petitioner in support of submission that an application filed for eviction of a tenant on bona fide need lapses on the death of landlord and it could not be continued by his legal representatives overruled in Shanti Lal Thakur Das and Ors.
vs Chaman Lal Maganlal Telwala, it was observed that doctrine of actio personalis moritur cum personna, did not apply to Rent Control Acts.
Even otherwise an action for eviction abates only if the cause of action does not survive.
What is the cause of action for an application for vacant possession in Section 21 death of landlord or expiry of time for which tenancy was created.
Obviously the latter, the failure ' of tenant to honour his commitment to vacate the premises after expiry of time for which he was inducted with permission of Control ler.
The death of the person who obtained the permission has nothing to do with it.
Permission was obtained because the landlord did not require the premises on the date when it was let out to tenant.
That does not continue on the date when the tenant does not vacate the premises.
The necessity of not requiring the premises, for some time, or for the duration the tenant was inducted was confined to the date when the permission was granted.
It could not be taken further to the time when the question of vacation arose.
The cause of action for granting permission was the non require ment by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non vacation by the tenant after the expiry of period.
Therefore, it is immaterial who is the landlord at the time when the action for vacation arose.
Even on facts permission was applied for by the landlord as, premises was surplus to his need for a limited period of 3 years due to the reason that his son had gone abroad and he was expected to return 32 after three years.
Permission was granted for this reason on statement of parties.
Such necessity to let out or non requirement by the landlord could not be brought into those exceptions which invalidate permission.
Therefore death of the landlord was immaterial as even the reason for letting out did not die with death of landlord.
In the result this petition for special leave fails and is dismissed.
In the circumstances of the case the tenant is directed to suffer costs which we quantify at Rs.5,000.
R.S.S. Petition dismissed.
|
The petitioner tenant was let out the demised premises by the landlord for a period of three years, with permission of Controller under section 21 of the Delhi Rent Control Act, the landlord died before the expiry of period of tenan cy.
After the expiry of the period, his legal representa tives made an application for recovery of possession.
This application was resisted by the tenant on the ground that proceedings for recovery of possession under section 21 could not be initiated and continued by legal representa tives of the landlord who had obtained permission.
Having failed before the High Court, the petitioner has filed petition for special leave.
It was contended on his behalf that 'landlord ' in second part of section 21, enti tling him to claim vacant possession, should be confined to the person who had obtained permission on the premise that he "does not require the whole or any part of the premises for a particular period.
" Dismissing the special leave petition, this Court, HELD: (1) Section 21 is a self contained code.
The purpose and objective of its enactment as provision of short duration tenancy or periodical tenancy in Rent Control Act of Delhi is unique amongst such legislations.
What was unique of it was not short duration tenancy but a fresh look on eviction.
[27G; 28G] Shiv Chand Kapoor vs Amar Bose, ; , referred to.
(2) Since section 21 is an exception to section 14 and it mandates restoration of possession, "notwithstanding any other law" it has to be construed strictly and against any attempt to frustrate it.
[28G] 26 (3) Recovery of possession under section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of the exceptions which have been carved out by courts, obviously to uphold fairness and honesty the core of our jurisprudence.
Right to get vacant possession is thus absolute.
[29D] S.B. Noronah vs Prem Kumari Khanna, ; ; V.S. Rahe vs Smt.
Rem Chamben, ; Shiv Chand Kapoor vs Amar Bose, ; , referred to.
(4) The expression "for the time being" in section 2(e) makes it clear that landlord has to be understood in presen ti.
That is anyone entitled to receive rent is the landlord.
It does not visualise, past or future landlord.
Therefore, the word "landlord" on plain reading of Section 21 does not warrant construction of the word in any other manner.
[29G] (5) Constructionally, Section 21 is in two parts: one creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate inde pendently.
Non requirement of premises for time being fur nishes basis for entering into agreement for periodical tenancy.
Truth of it or its genuineness are relevant consid erations for granting permission.
And the permission granted continues unabated, unaffected irrespective of variation in requirement.
[30D E] (6) Vacation is not linked with landlord but with time.
Expiry of it obliges tenant to vacate.
If he does not then whosoever is the landlord at the time of afflux of tenancy may approach Controller for putting him in vacant posses sion.
Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affect ed.
[30F] (7) The doctrine of actio personalies moritur cum per sonna does not apply to Rent Control Acts.
Its applicability was generally confined to actions for damages for defama tion, seduction, inducing a spouse to remain apart from the other and adultery.
[31D C] Supreme Bank vs
P.A. Tindulcar; , ; Shanti Lal Thakur Das & Ors.
vs Chaman Lal Magan Lal Lala, Phool Rani vs Naubat Rai, , referred to.
(8) An action for eviction abates only if the cause of action does 27 not survive.
The cause of action for granting permission was the nonrequirement by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non vacation by the tenant after the expiry of period.
Therefore, it is immaterial who is the landlord at the time when the action for vacation arose.
[31F G] (9) Permission in the instant case was granted on state ment of parties in regard to their necessity or non require ment of the premises.
Such necessity to let out or non requirement by the landlord could not be brought into those exceptions which invalidated permission.
Therefore, death of the landlord was immaterial as even the reason for letting out did not die with death of landlord.
[32A B]
|
Table of Contents
No. Particulars Page No(s).
1 Preface
2 Details of the writ petitioners
3 Factual Background 9-25
4 Counter affidavit of State of Gujarat
5 Submissions 47-87
6 Reply Arguments 87-101
7 Points for consideration 101-251
(A) Re: Point No.1: Whether the petition
filed by one of the victims in Writ
Petition (Crl.) No.491 of 2022 under
Article 32 of the Constitution is
maintainable?
(B) Re: Point No.2 : Whether the writ
petitions filed as Public Interest
Litigation (PIL) assailing the impugned
orders of remission dated 10.08.2022
are maintainable?
(i) Remission : Scope & Ambit 117-136
(C) Re: Point No.3: Whether the
Government of State of Gujarat was
competent to pass the impugned
orders of remission?
(D) Re: Point No.4 : Whether the impugned
order s of remission passed by the
respondent - State of Gujarat in favour
of respondent Nos.3 to 13 are in
accordance with law?
(i) Section 432(2) of the CrPC: Opinion
of the Presiding Judge of the
convicting court
(ii) Sentence in default of fine
(E) Summary of Conclusions
(F) Re: Point No.5: What Order?
8 Conclusion 251
Preface:
Plato , the Greek Philosopher in his treatise, The
Laws , underscores that punishment is to be inflicted, not for the
sake of vengeance, for what is done cannot be undone, but for the
sake of prevention and reformation (Thomas L. Pangle, The Laws
of Plato, Basic Book Publishers, 1980) . In his treatise, Plato
reasons that the lawgiver, as far as he can, ought to imitate the
doctor who does not apply his drug with a view to pain only, but
to do the patient good. This curative theory of punishment likens
penalty to medicine, administered fo r the good of the one who is
being chastised (Trevor J. Saunders, Plato's Penal Code:
Tradition, Controversy, and Reform in Greek Penology, Oxford
University Press, 1991) .
Thus, if a criminal is curable, he ought to be improved by
education and other suitable arts, and then set free again as a
better citizen and less of a burden to the state. This postulate lies
at the heart of the policy of remission. In addition, there are also
competing interests involved – the rights of the victim and the
victim’s family to justice vis-a-vis a convict’s claim to a second
chance by way of remission or reduction of his sentence for
reformation .
Over the years, t his Court initially attached greater weight
to the former and has expressed scepticism over the latter,
particularly if the offence in question is a heinous one. This
sentiment can be gathered from the following observations of
Fazal Ali J. in Maru Ram vs. Union of India, AIR 1980 SC 2147
“77. … It is true that there appears to be a modern trend
of giving punishment a colour of reformation so that stress
may be laid on the reformation of the criminal rather than
his confinement in jail which is an ideal objective. At the
same time, it cannot be gainsaid that such an
objective cannot be achieved without mustering the
necessary facilities, the requisite education and the
appropriate climate which must be created to foster a
sense of repentance and penitence in a criminal so that he
may undergo such a mental or psychological revolution
that he reali ses the consequences of playing with human
lives. In the world of today and particularly in our
country, this ideal is yet to be achieved and, in fact, with
all our efforts it will take us a long time to reach this
sacred goa l.
xxx xxx xxx
79. The question, therefore, is — should the country take
the risk of innocent lives being lost at the hands of
criminals committing heinous crimes in the holy hope or
wishful thinking that one day or the other, a criminal,
however dangerous or callous he may be, will reform
himself. Valmikis are not born everyday and to expect that
our present generation, with the prevailing social and
economic environment, would produce Valmikis day after
day is to hope for the impossible.”
A woman deserves respect howsoever high or low she may be
otherwise considered in society or to whatever faith she may follow
or any creed she may belong to . Can heinous crimes , inter alia ,
against women permit remission of the convicts by a reduction in
their sentence and by granting them liberty? These are the issues
which arise in these writ petitions.
With the aforesaid philosophical preface, we proceed to
consider these writ petitions , both on maintainability as well as
on merits purely from a legal perspective .
Details of the writ petitioners:
2. These writ petitions have been filed assailing the Orders
dated 10.08.2022, granting remission and early release of
respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which
petition shall be considered to be the lead petition) , who were all
convicted, having been found guilty of committing heinous crimes
during the large -scale riots in Gujarat on 28.02.2002 and a few days
thereafter which occurred in the aftermath of the burning of the
train incident in Godhra in the State of Gujarat on 27.02.2002.
2.1. The grotesque and diabolical crime in question was driven by
communal hatred and resulted in twelve convicts , amongst many
others, brutally gang -raping the petitioner in Writ Petition (Crl.)
No.491 of 2022, namely , Bilkis Yakub Rasool, who was pregnant at
that time. Further, the petitioner ’s mother was gang raped and
murdered, her cousin who had just delivered a baby was also gang
raped and murdered. Eight minors including the petitioner ’s
cousin’s two -day-old infant were also murdered. The petitioner ’s
three -year-old daughter was murdered by smashing her head on a
rock, her two minor brothers, two minor sisters, her phupha, phupi,
mama (uncle , aunt and uncle respectively) and three -cousins were
all murdered.
2.2. While eventually, the perpetrators of the crime , including the
police personnel were convicted and sentenced , the petitioner , who
was aged twenty -one years and pregnant at that time, having lost
all members of her family in the diabolical and brutal attacks , has
once again approached this Court seeking justice by challenging the
en-masse remission granted to respondent Nos.3 to 13. Bilkis Yakub
Rasool, being an unfortunate victim of the heinous crimes
hereinabove narrated, has filed the present writ petition under
Article 32 of the Constitution of India, seeking issuance of a writ,
order or direction quashing the Order s dated 10.08.2022 passed by
the State of Gujarat by which the convicts in Sessions Case No.634
of 2004, Mumbai ( respondent Nos.3 to 13 herein), whose convictions
were upheld by a Division Bench of the Bombay High Court and
thereafter by this Court, have been released prematurely.
2.3. Writ Petition (Crl.) No.352 of 2022 titled Dr. Meeran Chadha
Borwankar vs. State of Gujarat has been preferred by a former
woman police officer, a woman bureaucrat who ha d served in the
Indian Foreign Service and an academic, seeking , inter alia , the
setting aside of the remission Order s dated 10.08.2022. The
petitioner s by way of the writ petition have also sought a writ or
order in the nature of mandamus directing that the States must
endeavour to have a pluralistic composition in Jail Advisory
Committees, adequately representing the diverse nature of our
society.
2.4. Writ Petition (Crl.) No.319 of 2022 titled Subhashini Ali vs.
State of Gujarat being the first of the petitions filed in this batch
has been preferred under Article 32 by Subhashini Ali, a former
parliamentarian and presently the Vice -President of All India
Democratic Women’s Association; Revati Laul, an independent
journalist and Roop Rekha Verma, former Vice -Chancellor of
Lucknow Uni versity, challenging the Order s dated 10.08.2022.
2.5. Writ Petition (Crl.) No.326 of 2022 titled Mahua Moitra vs.
State of Gujarat has been preferred by Mahua Moitra, a Member
of Parliament from the Krish nanagar constituency in West Bengal,
seeking issuance of a writ, order, or direction, quashing the Order s
dated 10.08.2022. The petitioner in the said writ petition has also
sought the framing of guidelines and the equitable application of
existing guidelines by the State Government for the grant of
remission so as to channelise the exercise of discretion in granting
remission and to prevent the misuse of such discretion , if found
necessary upon an examination of the existing statutory framework.
2.6. Writ Petition (Crl.) No.403 of 2022 titled National
Federation of Indian Women (NFIW) vs. State of Gujarat has
been filed by the National Federation of Indian Women (NFIW) ,
which is a women centric organization that was established on
04.06.1954 for the purpose of securing women’s rights, seeking
appropriate directions in the form of a writ of mandamus to the
respondent to revoke the remission granted to respondent Nos.3 to
13 by the competent authority of the Government of Gujarat under
the remission policy dated 09.07.1992 and to re -arrest respondent
Nos.3 to 13 herein.
2.7. Writ Petition (Crl.) No.422 of 2022 titled Asma Shafique
Shaikh vs. State of Gujarat has been filed by Asma Shafique
Shaikh, a lawyer by profession and a social activist, seeking
issuance of a writ, order or direction, quashing the Order s dated
10.08.2022.
2.8. As Writ Petition (Crl.) No.491 of 2022 has been filed by one of
the victims, Bilkis Yakub Rasool , seeking quashing of the orders
dated 10.08.2022 , for the sake of convenience, the factual
background, details as well as the status of the parties shall be with
reference to Writ Petition (Crl.) No.491 of 2022 .
Factual Background:
3. The factual background in which these writ petition s have
been filed is that following the aforesaid unfortunate and grave
incident, a First Information Report (“FIR” for short) was registered
against unknown accused, on 04.03.2002. The Investigation Agency
filed a closure report stating that the accused could not be traced
and the said closure report was accepted by the Judicial Magistrate
vide Order dated 25.0 3.2003. The closure report was challenged by
the petitioner -victim - Bilkis Yakub Rasool , before this Court in Writ
Petition (Crl.) No.118 of 2003. This Court directed the reopening of
the case and transferred the investigation of the same to the Central
Bureau of Investigation (“CBI” for short).
3.1. The CBI commenced a fresh investigation and submitted a
chargesheet on 19.04.2004 against twenty persons accused of the
crime . Charges of gang rape, murder and rioting armed with deadly
weapons with a common intention were framed against twelve
persons, six police personnel and two doct ors
3.2. The petitioner -victim approached this Court by filing Transfer
Petition (Crl.) No.192 of 2004, seeking transfer of the trial from the
State of Gujarat to a neutral place. This Court in Transfer Petition
(Crl.) No.192 of 2004, by an Order dated 06.08.2004, in the peculiar
facts and circumstances of the case, considered it appropriate to
transfer Sessions Case No.161 of 2004 pending before the learned
Additional Sessions Judge, Dahod, Ahmedabad to the competent
Court in Mumbai for trial and disposal. Char ges were framed on
13.01.2005 amongst others against the eleven convicts for the
commission of offences under Sections 143, 147, 302, 376(2)(e) and
(g) of the Indian Penal Code, 1860 (hereinafter referred to as the
“IPC” for the sake of brevity).
3.3. The Special Judge, Greater Mumbai, vide Judgment dated
21.01.2008 in Sessions Case No.634 of 2004 convicted the eleven
accused and sentenced them to life imprisonment for the
commission of the offences of, inter alia , gang rape and murder of
the petitioner ’s mother ; gang rape and murder of her cousin
Shamim ; murder of twelve more victims including the three and a
half year old daughter of the petitioner, rioting, etc. and one police
personnel for deliberately recording the FIR incorrectly. However,
the Tria l Court acquitted the remaining five police personnel and
the two doctors, against whom there were serious charges.
Respondent Nos.3 to 13 herein were convicted for the offences
punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC
for the murder of fourteen people ; Section 376 (2)(e) & (g) for having
committed gang -rape on the petitioner -victim ; Section 376(2)(g) for
having committed gang rape on other women. The police officer ,
Somabhai Gori was convicted of the offence punishable under
Sections 217 and 218 of the IPC.
3.4. On 05.08.2013, a Division Bench of the High Court of
Bombay passed an Order in Criminal Writ Petition No.305 of 2013
titled Ramesh Rupabhai Chandana vs. State of Maharashtra ,
preferred by respondent No.13 herein, holding that where a trial has
been transferred from one State to another and such trial has been
concluded and the prisoner has been convicted, the prisoner should
be transferred to the prison of his State.
3.5. Against the judgment of the Trial Court dated 21.01.2008,
the persons convicted, as well as the State filed Criminal Appeals
before the Bombay High Court. While the convicts filed criminal
appeals assailing their conviction, the State filed criminal appeal
against acquittal of the police officials and the doct ors A bench
comprising Mrs. Mridula Bhatkar and Mrs. V. K. Tahilramani, JJ.
of the Bombay High Court upheld the conviction of the eleven
persons accused of the offence of rioting armed with deadly
weapons, gang -rape and murder by judgment dated 04.05.2017 in
Criminal Appeal Nos.1020 -1023 of 2009, 487 of 2010, 194 and 271
of 2011 titled Jaswantbhai Chaturbhai Nai vs. State of Gujarat .
The five police officials and the two doctors who were acquitted by
the Trial Court were also convicted by the High Court. The High
Court also observed that the investigation by the Gujarat police was
not proper and that the Gujarat police had taken the investigation
in the wrong direction from the beginning i.e., the day of registering
the FIR. That the investigation was not only unsatisfactory but it
also smacked of dishonest steps to shield the culprits. It was further
observed that the earlier investigation had played the role of a villain
in the case. The High Court while going through the evidence also
noted that “the truth and the falsehood are mixed up in such a
manner that at every stage of investigation the truth is hidden under
layers of intentional laxity, omissions, contradictions and falsehood
and the truth is required to be unearthed” .
3.6. All the persons convicted filed Special Leave Petitions against
the judgment of the High Court. This Court vide Order dated
10.07.2017 passed in SLP (Crl.) No s.4290/2017, 4705/2017 and
4716/2017 and by Order dated 20.11.2017 passed in SLP (Crl.)
No.7831/2017 dismissed the Special Leave Petitions preferred by
the convicts and upheld the findings rendered by the High Court, as
well as the sentence awarded.
3.7. It is noteworthy that the petitioner -victim approached this
Court by way of Criminal Appeal No s.727-733 of 2019 seeking just
and adequate compensation for her ordeals. This Court vide order
dated 23.04.2019 observed that the petitioner is a victim of riots
which occurred in the aftermath of the Godhra train burning. This
Court noted that the petitioner’s case ha d to be dealt with differently
as the loss she has suffered surpassed normal cases. That the
gruesome and horrific acts of violence had left an inde lible imprint
on the mind of the petitioner, which will continue to torment and
cripple her. This Court therefore directed the State Government to
pay Rs. 50,00,000/ - (Rupees Fifty Lakhs) to the petitioner within
two weeks noting that the petitioner ha d been coerced into living the
life of a nomad and an orphan and was barely sustaining herself on
the charity of NGOs, having lost her family members.
3.8. After undergoing 14 years 5 months and 6 days of his
sentence, respondent No.3 herein, namely, Radheshyam
Bhagwandas Shah , filed Criminal Application No.4573 of 2019
before the Gujarat High Court challenging the non -consideration of
his application for premature release under Section s 433 and 433A
of the Code of Criminal Procedure, 1973 (hereinafter, the “CrPC” for
the sake of brevity). The High Court after considering the
submissions observed that respondent No.3 herein had been tried
in the State of Maharashtra, hence, as per Section 432 (7), the
‘appropriate government’ for t he purpose of Sections 432 and 433
of the CrPC would be the State of Maharashtra. The High Court
placed reliance on the dictum of this Court in Union of India vs. V.
Sriharan , (2016) 7 SCC 1 (“V. Sriharan”) and by Order dated
17.07.2019 directed the petitioner therein (respondent No.3 herein)
to pursue his remedy within the State of Maharashtra.
3.9. Respondent No.3 then moved an application dated
01.08.2019 before the Secretary, Department of Home Affairs, State
of Maharashtra, seeking premature release under Sections 432 and
433A of the CrPC. Respondent No.3 specifically relied on the order
dated 17.07.2019 of the Gujarat High Court granting liberty to the
convict to approach the State of Maharashtra seeking premature
release.
3.10. As the case was investigated and prosecuted by the CBI, the
opinion of the said Agency was sought on the application for
premature release. The CBI submitted its report dated 14.08.2019
wherein it was recommended that respondent No.3 should serve his
sentence fully and no leniency should be given to him. The CBI
submitted that respondent No.3 had actively participated in the
heinous crime and t hat the offences committed by him and others
were serious in nature and thus, he should not be pardoned or the
sentence , suspended or remitted.
3.11. Further, on 03.01.2020, the Special CBI Court, Mumbai, also
gave a negative report and objected to the prayer for premature
release of respondent No.3 on the ground of seriousness of the
offence. It was observed that the offences committed by the accused
fell into category 5 (b) of the relevant State policy and were extremely
serious, thus, it would be improper to grant remission to respondent
3.12. Similarly, on 03.02.2020, the Superintendent of Police,
Dahod, in his report submitted to the Collector and District
Magistrate, Dahod, gave a negative opinion against the pre -mature
release of respondent No.3 on the ground that the victim and her
family members apprehended serious crimes against them if
respondent No.3 was released prematurely. The Office of the
Collector and District Magistrate, Dahod, on 19.02.2020 also opined
against the pre -mature release of respondent No.3 by relying on the
opinion da ted 03.02.2020 of the Superintendent of Police, Dahod.
3.13. Respondent No.3 again approached the High Court of
Gujarat by way of Criminal Miscellaneous Application No. 1 of 2019
in Criminal Application No.4573 of 2019 seeking remission under
Section 432 read with Section 433 of the CrPC. The High Court vide
Order dated 13.03.2020 rejected the application preferred by
respondent No.3 with a specific observation that the appropriate
government under Section 432(7)(b) to exercise the powers of
remission would be the State of Maharashtra and not the State of
Gujarat. It was further recorded in the said order that the counsel
for respondent No.3 had sought the permission of the Court to move
the High Court of Bombay for the same relief and therefore the
application was disposed of with liberty to the writ petitioner therein
in the aforesaid terms. It is pertinent to note that t his order still
holds the field as it has neither been challenged nor recalled or set
aside in accordance with law.
3.14. On 20.07.2021, a meeting of the Jail Advisory Committee of
the State of Gujarat took place which comprised of four social
workers; two members of the State Legislative Assembly; the
Superintendent of Police, Godhra; the District and Sessions Judge,
Godhra; the Secretary, Jail Advisory Committee and
Superintendent, Godhra Sub -Jail and the District Magistrate,
Godh ra (Chairman of the Jail Advisory Committee, Godhra Sub -
Jail).
3.15 The Sessions Judge, Godhra, being one of the ten members of
the Jail Advisory Committee, after going through the case papers
observed that the convict, respondent No.3 herein , had been
sentenced to undergo life imprisonment in a sensitive case and that
if he was released prematurely, it may create an adverse effect on
the society and there is a possibility of peace being disturbed. The
other Committee members recommended the grant of remission to
respondent No.3, on the ground that he had completed fifteen years
of imprisonment and that his conduct in prison had been good.
3.16. On 18.08.2021, the Additional Director General of Police,
Prisons and Correctional Administration, State of Gujarat, vide his
letter to the Additional Chief Secretary, Home Department , Gujarat,
after considering the opinion given by the Jail Advisory Committee,
concurred with the opinion given by the Superintendent of Police,
Dahod; CBI; the Special CBI Court, Mumbai and the District
Magistrate, Dahod and did not recommend the premature release of
the convict - respondent No.3.
3.17. In the interregnum, t he rest of the convicts, respondent Nos.4
to 13 had applied for remission on varying dates in the month of
February 2021 to the Superintendent, Godhra Sub -Jail. The opinion
of the CBI was sought in this regard, and a negative opinion was
given, so also by the Special Judge (CBI), Greater Mumbai . By a
common opinion dated 22.03.2021, Special Judge (CBI), Greater
Mumbai stated that since all the accused were tried and convicted
in Mumbai, i.e., the State of Maharashtra, the Government
Resolution issued by the Home Department, Government of
Maharashtra would be applicable to them. The Special Judge after
perusing the guidelines issued by the Government of Maharashtra
on 16.11.1978 and 11.05.1992 and the Government Resolution
dated 11.04.2008 (Policy dated 11.04.2008) , observed that the said
resolution dated 11.04.2008 would apply as it ha d superseded all
earlier orders and guidelines and would have been applicable in the
normal course to the convicts undergoing life imprisonment. The
Special Judge further noted that the case of the convicts mentioned
above would fall under categories 2(c), 2 (d) and 4(d) of the Policy
dated 11.04.2008, according to which the minimum period of
imprisonment to be undergone is 28 years (Category 2(d)) . However,
the Superintendent of Police, Dahod, gave a positive opinion with
respect to the premature release of respondent Nos.3 to 13. His
opinion was seconded by the Collector and District Magistrate,
Dahod.
3.18. In the afore said backdrop, when various steps were in
progress at various stages, stealthily a writ petition , being Writ
Petition (Crl.) No.135 of 2022 titled Radheshyam Bhagwandas
Shah vs. State of Gujarat , (2022) 8 SCC 552 (“Radheshyam
Bhagwandas Shah”) , was filed before this Court by respondent
No.3 herein, seeking a direction in the nature of mandamus to the
State of Gujarat to consider his application for pre -mature release
under its policy dated 09.07.1992, which was existing at the time of
commission of his crime and his conviction.
3.19 This Court noted that the policy on the date of conviction was
as per the resolution dated 09.07.1992 passed by the State of
Gujarat. Hence, respondent No.3 ( petitioner therein) would be
governed by the same. This Court placed reliance on the dictum in
State of Haryana v s. Jagdish , (2010 ) 4 SCC 216 (“Jagdish”) to
observe that the application for grant of pre -mature release will have
to be considered on the basis of the policy which stood as on the
date of conviction. The other pertinent findings of this Court in its
judgment and Order dated 1 3.05.2022, in Writ Petition (Crl.) No.135
of 2022 are culled out hereunder:
i. The argument advanced by the respondent s – State
of Gujarat therein that since the trial ha d been
concluded in the State of Maharashtra, the
'appropriate Government' as referred to under
Section 433 of the CrPC would be the State of
Maharashtra, was rejected by this Court holding
that the crime in the instant case was admittedly
committed in the State of Gujarat and ordinarily,
the trial would have been concluded in the same
State and in terms of Section 432(7) of the CrPC,
the appropriate Government in the ordinary course
would have been the State of Gujarat but in the
instant case, the case was transferred under
exceptional circumstances by this Court for the
limited purpose of trial and disposal to the State of
Maharashtra. However, after the conclusion of trial
and on conviction, the c ase stood transferred to the
State where the crime was committed and the State
of Gujarat remains the appropriate Government for
the purpose of Section 432(7) of the CrPC.
ii. This Court observed that once the crime was
committed in the State of Gujarat , after the trial
came to be concluded and judgment of conviction
came to be passed, all further proceedings would
have to be considered, including remission or pre -
mature release, as the case may be, in terms of the
policy which is applicable in the State of Gujarat
where the crime was committed and not the State
where the trial stood transferred and concluded for
exceptional reasons under the orders of this Court.
iii. This Court directed the State of Gujarat to consider
the application of the petitioner therein for pre -
mature release in terms of its policy dated
09.07.1992 which was applicable on the date of
conviction.
3.20. Pursuant to the judgment of this Court dated 13.05.2022, a
meeting of the Jail Advisory Committee of the State of Gujarat took
place on 26.05.2022 and all the members recommended grant of
remission to respondent Nos.3 to 13.
3.21. The Sessions Judge, Godhra, also considered the
applications of respondent Nos.3 to 13 and upon going through the
particulars provided by the Jail Superintendent, Sub -Jail, Godhra
noted that the said report recorded that the convicts had
demonstrated good behavior and conduct during the period of
incarceration and that no adverse incident had been recorded
against the convicts even when they were on furlough or on parole,
except against one convict , namely, Mitesh Chimanlal Bhatt. That
all convicts, by and large, surrendered themselves within the time
after enjoying parole/furlough and participated in rehabilitation
and corrective programmes. That the convicts still had substantial
years of life remaining. Accordingly, the Sessions Judge applied the
policy dated 09.07.1992 and gave an ‘affirmative’ opinion as regards
the premature release of respondent Nos.3 to 13.
3.22. The Additional Director General of Police, Prisons and
Correctional Administration, State of Gujarat, addressed a letter
dated 09.06.2022 to the Additional Chief Secretary, Home
Department, Government of Gujarat, regarding the premature
release of accused Kesarbhai Khimabhai Vahoniya. In the said
letter, the details of the opinion given by the concerned authorities
regarding the premature release of the said convict were also
discussed. It was stated in the letter that the Superintendent of
Police, D ahod, had given a positive opinion regarding premature
release from jail; the Superintendent of Police, Special Crime
Branch, Mumbai, however, had given a negative opinion about
premature release from jail; the District Magistrate, Dahod, had
given a positive opinion about the premature release from jail; the
Sessions Court, Mumbai, which pronounced the sentence had given
a negative opinion about premature release; however, the Jail
Advisory Committee of Gujarat had given a positive opinion about
the convi ct’s premature release and the Superintendent, Godhra
Sub-Jail had also given a positive opinion about the premature
release . Thus, the Additional Director General of Police, Prisons and
Correctional Administration, State of Gujarat gave a positive opinion
regarding the premature release of Kesarbhai Khimabhai Vahoniya
to the Additional Chief Secretary, Home Department, Government
of Gujarat. So also, as regards the other convicts, namely, Salesh
Chimanlal Bhatt, Pradip Ramanlal Modhhiya, Mitesh Chimanlal
Bhatt, Bipinchand Kanhaiyalal Joshi, Rajubhai Babulal Soni,
Bakabhai Khimabhai Vahoniya, Jaswantbhai Chaturbhai Nai
(Rawal) and Ramesh Rupabh ai Chandana.
3.23. On 28.06.2022, the Department of Home Affairs,
Government of Gujarat, addressed a letter to the Secretary, Ministry
of Home Affairs, Government of India, seeking sanction from the
Government of India on the proposal for the premature release of
the prisone rs, respondent Nos.3 to 13.
3.24. By letter dated 11.07.2022, the Ministry of Home Affairs,
Government of India conveyed its approval under Section 435 of the
CrPC for the premature release of all 11 convicts, respondent Nos.3
to 13.
3.25. Pursuant to the concurrence of the Central Government, the
State of Gujarat issued the impugned order s dated 10.08.2022.
3.26. In the above background, these writ petition s have been filed,
praying , inter-alia, for issuance of a writ, order, or direction,
quashing the Order s dated 10.08.2022.
Counter affidavit of State of Gujarat:
4. Under Secretary, Home Department, State of Gujarat (first
respondent) has filed his affidavit stating that he is acquainted with
the facts of the case as appearing from the official records of the
case. While denying every assertion, contention and statement
made by the petitioner in Writ Petition (Crl.) No.319 of 2022, which
was the first of the writ petitions filed before this Court, certain
preliminary submissions have been advanced at the outset.
4.1 It is contended that the public interest litigation (PIL) filed by
the petitioners (Subhashini Ali and others) is neither maintainable
in law nor tenable on facts. That a third party has no locus to
challenge the orders of remission passed by a competent authority
under the garb of a PIL. A PIL is not maintainable in a criminal
matter as the petitioners are in no way connected with the
proceedings with which the convicted persons have been granted
remission. Therefore, the writ petition may be dismis sed on that
ground alone. In support of this submission, reliance has been
placed on Rajiv Ranjan Singh ‘Lalan’ (VIII) v s. Union of India,
(2006) 6 SCC 613 (“Rajiv Ranjan”) ; Gulzar Ahmed Azmi v s.
Union of India, (2012) 10 SCC 73 1 (“Gulzar Ahmed”) ; Simranjit
Singh Mann v s. Union of India, (1992) 4 SCC 65 3 (“Simranjit
Singh”) ; and, Ashok Kumar Pandey v s. State of West Bengal,
(2004) 3 SCC 349 (“Ashok Kumar”) . It is submitted that a third
party /stranger either under the provisions of the CrPC or under any
other statute is precluded from question ing the correctness of grant
or refusal of ‘sanction for prosecution’ or the conviction and
sentence imposed by the Court after a regular trial. Similarly, a
third party stranger is precluded from questioning a remission
order passed by the State Government which is in accordance with
law. Therefore, dismissal of the petition at the threshold is sought.
4.2. It is next averred that the petitioners have not pleaded as to
how they have the locus to seek a writ of certiorari for quashing the
order s of remission passed by respondent no.1 with respect to the
eleven convicts sentenced by the Special Judge, Greater Mumbai in
Sessions Case No.634 of 2004. That the petitioners have not
pleaded as to how their fundamental rights have been abridged or
how they are aggrieved by the action of the State Government.
Theref ore, filing of the writ petition as Public In terest Litigation (in
short, ‘ PIL’) is an abuse of PIL jurisdiction and is motivated by
political intrigues and machinations. In this regard, reliance has
been placed on Tehseen Poonawalla v s. Union of India, (2018)
6 SCC 72 (“Tehseen”) ; and Ashok Kumar .
4.3. It is further submitted that the petitioners not being aggrieved
persons have invoked the jurisdiction of this Court under Article 32
of the Constitution for extraneous purposes . As the petitioners are
not the “persons aggrieved” , the writ petition is not maintainable .
On the scope and ambit of the expression “person aggrieved”,
reliance has been placed on State of Maharashtra v s. M.V.
Dabholkar , (1975) 2 SCC 702 (“M.V. Dabholkar ”); Jasbhai
Motibhai Desai v s. Roshan Kumar, Haji Bashir Ahmed, (1976)
1 SCC 671 (“Jasbhai Motibhai”) ; and Thammanna v s. K. Veera
Reddy, (1980) 4 SCC 62 (“Thammanna”) .
4.4. On merits, it is stated that one of the respondents/prisoners,
namely, Radheshyam Bhagwandas Shah had filed Writ Petition
(Crl.) No.135 of 2022 , inter alia , praying to consider his remission
application. This Court by its order dated 13.05.2022 held that the
policy which will be applicable for deciding the remission
application is the one which was in vogue at the time of conviction
i.e. Premature Release of Convicts Policy of 1992. Further, this
Court held that for the purposes of Section 432 of the CrPC , the
“appropriate Government” for considering the remission application
is the State in which the offence was committed and not the State
in which the trial was conducted and therefore, directed the State
of Gujarat to consider the application of the prisoner w ithin a period
of two months. Accordingly, the State of Gujarat considered the
application of the prisoners as per Section 432 read with Section
435 of the CrPC along with the Premature Release of Convicts Policy
of 1992. That, the State Government vide its Circular dated
09.07.1992 had issued a policy for early release of prisoners who
have completed fourteen years of imprisonment and who were
imposed punishment of life imprisonment. As per the aforesaid
Policy of 1992, the Inspector General of Jail is mandated to obtain
the opinion of the District Police Officer, District Magistrate, Jail
Superintendent and Advisory Board Committee fo r early release of
a convict. Thereafter, the Inspector General of Jail is mandated to
give his opinion with the copy of the nominal roll and copy of the
judgment and the recommendation of the Government. Further,
the Jail Advisory Board at the time of co nsideration of the
premature release application shall be guided by the Policy of 1992.
A copy of the policy has been annexed as Annexure R -2. It is further
submitted that the State Government considered the case of all the
eleven convicts as per the Policy of 1992. Further, t he remission in
these cases was not granted under the Circular governing grant of
remission to prisoners as part of celebration as ‘Azadi Ka Amrit
Mahotsav”.
4.5. The State Government in fact directed the Additional Director
General of Prison s, Ahmedabad to send the necessary proposal of
remission as per the direction of this Court before 31.05.2022 vide
letter dated 25.05.2022. A reminder was also sent on 08.06.2022.
Ten proposals were received on 09.06.2022 and one proposal was
received on 1 7.06.2022. The applications of the accused were
considered according to the remission policy dated 09.07.1992 in
accordance with the directions issued by this Court. As laid down
in the abovementioned policy, the Department rece ived the opinions
of the concerned District Police Officer, District Magistrate and
Chairman of Jail Advisory Board Committee. It is further stated that
the State Government has considered the opinions of the Inspector
General of Prisons, Gujarat State, Jail Superintendent, Jail
Advisory Committee, District Magistrate, Police Superintendent,
CBI, Special Crime Branch, Mumbai and S essions Court, Mumbai
(CBI). Therefore, the opinions of seven authorities were considered.
Further, having regard to the provisi ons of Section 435 of the CrPC,
sanction of the Government of India was also necessary. As the CBI
was a central investigating agency, the State Government obtained
the approval/suitable orders of the Government of India. The
prisoners/convicts had completed fourteen years of imprisonment
and the opinions of the concerned authorities were obtained as per
Policy dated 09.07.1992 . The same was submitted to the Ministry
of Home Affairs, Government of India vide letter dated 28.06.2022
and sought the approval/suitable orders of the Government of
India. The Government of India vide its letter dated 11.07.1992
conveyed its concurrence/approval. On considering all the
opinions, the State Government decided to relea se the eleven
convicts since they had completed fourteen years and above in jail
and their behaviour was found to be good.
4.6. Reliance has been placed on Jagdis h and V. Sriharan to
contend that if a policy which is beneficial to the convict exists at
the time of consideration of the application of premature release
then the convict cannot be deprived of such beneficial policy and
that judicial review of the order of remission is not permissible in
law. The Under Secretary has further proceeded to place the
following facts to contend that the impugned orders are in
accordance with law:
“29. I say that the relevant records pertaining to the
application for remission qua the prisoner, Kesharbhai
Khimabhai Vahoniya, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional No objection to the
premature release of the
prisoner.
Administration,
Ahmedabad.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Kesharbhai Khimabhai Vahoniya is annexed herewith as
30. I say that the relevant records pertaining to the
application for remission qua the prisoner, Shaileshbhai
Chimanlal Bhatt, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Shaileshbhai Chimanlal Bhatt is annexed herewith as
Annexure -RG-4.
31. I say that the relevant records pertaining to the
application for remission qua the prisoner, Pradip Ramanlal
Modhiya, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India Recommended premature
release of the prisoner.
from Home Department,
Govt. of Gujarat. Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Pradip
Ramanlal Modhiya is annexed herewith as ANNEXURE RG -5.
32. I say that the relevant records pertaining to the
application for remission qua the prisoner, Mitesh Chimanlal
Bhatt, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 25.05.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 25.05.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home Department,
Govt. of Gujarat, from
the Addl. Director
General of Police, Prisons
& Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Mitesh
Chimanlal Bhatt is annexed herewith as ANNEXURE RG -6.
33. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bipinchandra
Kanaiyalal Joshi, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat. No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home Department,
Govt. of Gujarat, from
the Addl. Director
General of Police, Prisons
& Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Bipinchandra Kanaiyalal Joshi is annexed herewith as
34. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rajubhai Babulal
Soni, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat. No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home Department,
Govt. of Gujarat, from
the Addl. Director No objection to the
premature release of the
prisoner.
General of Police, Prisons
& Correctional
Administration,
Ahmedabad.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Rajubhai
Babulal Soni is annexed herewith as ANNEXURE RG -8.
35. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bakabhai
Khimabhai Vahoniya, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat. No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Bakabhai
Khimabhai Vahoniya is annexed herewith as ANNEXURE R -
36. I say that the relevant records pertaining to the
application for remission qua the prisoner, Govindbhai
Akhambhai Nai (Raval), is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
15.02.2021
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022 The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India Recommended premature
release of the prisoner.
from Home Department,
Govt. of Gujarat. Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India. Approved the premature
release of the prisoner.
37. Copy of the relevant records qua the prisoner,
Govindbhai Akhambhai Nai (Raval) is annexed herewith as
Annexure R -10.
38. I say that the relevant records pertaining to the
application for remission qua the prisoner, Jashvantbhai
Chaturbhai Nai (Raval), is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
15.02.2021
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022 The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India. Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Jashvantbhai Chturbhai Nai (Raval) is annexed herewith as
Annexure R -11.
39. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rameshbhai
Rupabhai Chandana, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
25.02.2021
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022 The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India Recommended premature
release of the prisoner.
from Home Department,
Govt. of Gujarat. Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India. Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Rameshbhai Rupabhai Chandana is annexed herewith as
Annexure R -12.
40. I say that the relevant records pertaining to the
application for remission qua the prisoner, Radheshyam
Bhagwandas Shah @ Lala Vakil, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
01.08.2019
2. Letter dated 14.08.2019
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 03.01.2020
from the Special Judge
Sessions Court, Gr.
Bombay Objected to the premature
release of the prisoner.
4. Letter dated 13.02.2020
from the Superintendent
of Police, Dahod,
Gujarat. Objected to the premature
release of the prisoner.
5. Letter dated 19.02.2020
from the Collector & DM,
Dahod, Gujarat Objected to the premature
release of the prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 20.07.2021 9 out of 10 members of the
Committee has
recommended the
premature release of the
prisoner.
8. Letter dated 18.08.2021
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad.
Did not recommend to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India.
Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Radheshyam Bhgwandas Shah @ Lala Vakil is annexed
herewith as Annexure R -13.”
4.7 Therefore, it has been contended that PIL is not maintainable
as it is misconceived and devoid of any merit and as such is liable
to be dismissed.
5. Respondent No.2 has not filed any pleading in this matter.
Even though respondent Nos.3 to 13 have filed their counter
affidavits, we do not find it necessary to advert to the same as they
would be replicating the stand of the State of Gujarat.
Submissions:
6. We have heard learned counsel Ms. Shobha Gupta for the
petitioner in Writ Petition (Crl.) No.491 of 2022 ; learned ASG, Sri
S.V. Raju appearing on behalf of the State of Gujarat and Union of
India ; and learned senior counsel Mr. Sidharth Luthra and other
counsel for respondent Nos.3 to 13 and perused the material on
record.
6.1 We have also heard learned senior counsel and learned
counsel Ms. Indira Jaising , Ms. Vrinda Grover and Ms. Aparna Bhat,
for the petitioners in the public interest litigations.
6.2 We have perused the material on record as well as the judicial
dicta cited at the Bar.
7. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022, Ms. Shobha Gupta at the outset submitted that the
en-masse remission granted to respondent Nos.3 to 13 by Orders
dated 10.08.2022 has not only shattered the victim -petitioner and
her family but has also shocked the collective conscience of the
Indian society. That in the present case, the right of the victim and
the cry of the society at large ha ve been ignored by the State and
Central Government s while recommending the grant of remission to
all convict s in the case.
7.1. It was asserted that though the crime was committed in the
State of Gujarat, the investigation and trial were carried out in the
State of Maharashtra pursuant to the orders of this Court . Hence,
in view of the unambiguous language of Section 432(7)(b), only the
State of Maharashtra would be the appropriate government which
could have considered the applications filed by respondent Nos.3 to
13 seeking remission of their sentences . Learned counsel has placed
reliance on the following judgments to buttress h er argument ,
namely, State of M.P. vs. Ratan Singh, (1976) 3 SCC 470 (“Ratan
Singh”); Government of A.P. vs. M.T. Khan, (2004) 1 SCC 616
(“M.T. Khan”); Hanumant Dass vs. Vinay Kumar, (1982) 2 SCC
177 (“Hanumant Dass ”) and V. Sriharan .
7.2. According to learned counsel, once a competent Court in the
State of Maharashtra had tried and convicted the accused then that
State is the ‘ appropriate Government’ . Therefore, the Orders of
remission passed by the State of Gujarat in respect of respondent
Nos.3 to 13 is without jurisdiction and a nullity and thus, are liable
to be quashed.
7.3. As regards the applicability of the relevant remission policy,
learned counsel for the petitioner submitted that since the
‘appropriate government’ in the instant case is the State of
Maharashtra, the remission policy of the State of Maharashtra
would be applicable. Thus, the remission policy of the State of
Gujarat dated 09.07.1992 would be wholly inapplicable. It was
contended that the remission policy dated 09.07.1992 of the State
of Gujarat was not even in existence as on the date for consideration
of the remission applications as it was scrapped by way of a Circular
dated 08.05.2014 pursuant to the letter of the Central Government
circulated to all the States/UTs requiring the implementation of the
judgment of this Court in Sangeet vs. State of Haryana , (2013) 2
SCC 452 (“Sangeet”) , wherein this Court held that before actually
exercising the power of remission under Section 432 of the CrPC,
the appropriate government must obtain the opinion of the
Presiding Judge of the convicting or confirming court and that the
remission shall not be granted in a wholesale manner , such as , on
the occasion of Independence Day etc . That pursuant to the
cancellation of the policy dated 09.07.1992, the State of Gujarat
came up with a new remission policy dated 23.01.2014, and even
this policy would not entitle remission of the accused herein, for two
reasons : firstly, because the remission policy of the State of
Maharashtra would be applicable as it is the ‘appropriate
government’, and second ly, the 2014 policy of the State of Gujarat
bars the grant of remission to convicts of heinous crimes.
7.4. Relying on the opinion of the Special Judge, Sessions Court,
Greater Mumbai, it was submitted that the Special Judge had
rightly stated that the remission policy applicable in the present
case would be the Policy dated 11.04.2008 of the State of
Maharashtra in respect of which the Circular dated 13.06.2008 of
the State of Maharashtra was issued , wherein a convict of
communal crime, gang rape and murder would fall under the
categories 2(c), 2(d) and 4 ( e) of the Policy which prescribes that the
minimum peri od of imprisonment to be undergone by the convict
before remission can be considered would be twenty eight years.
Thus, respondent s-convicts were not entitled to be granted
remission as they had not completed the minimum period of
imprisonment as per the applicable remission policy.
7.5. It was further contended that the remission orders under
challenge failed to meet the criteria laid down by this Court in
Sangeet ; and Ram Chander vs. State of Chhattisgarh, (2022)
12 SCC 52 (“Ram Chander”) , wherein it ha s been stated that the
appropriate government must obtain the opinion of the Presiding
Judge of the convicting court before deciding the remission
application. That the State of Gujarat granted remission to all the
convicts by completely ignoring the negative opinions expressed by
two major stakeholders i.e., the Presiding Judge of the convicting
Court in Mumbai and the prosecuting agency (CBI).
7.6. Reliance was placed on the decisions of this Court in State
of Haryana vs. Mohinder Singh , (2000) 3 SCC 394 (“Mohinder
Singh”) ; Sangeet ; Ratan Singh , and Laxman Naskar vs. State
of West Bengal, (2000) 2 SCC 595 (“Laxman Naskar”) to
emphasize that a convict cannot claim remission as a matter of
right. The remission policies only give a right to the convict to be
considered and do not provide an indefeasible right to remission.
7.7. Further, reference was made to the dicta of this Court in
Mohinder Singh ; Epuru Sudhakar vs. State of A.P., (2006) 8
SCC 161 (“Epuru Sudhakar”) ; Maru Ram ; Sangeet; Ratan
Singh and Laxman Naskar to contend that the decision to grant
remission should be well informed, reasonable and fair and that the
power cannot be exercised arbitrarily.
7.8. Emphasizing the gravity of the offence s in this case and the
grotesque nature of the crime s committed by the accused, learned
counsel Ms. Shobha Gupta submitted that while considering the
application for remission , the appropriate government was required
to bear in mind the effect of its decision on the victim and the family
of the victims, the society as a whole and the precedent it would set
for the future. To buttress the said submission, she relied on Epuru
Sudhakar , Swamy Shraddhananda (2) vs. State of Karnatak a,
(2008) 13 SCC 767 , (“Shraddhananda ”), and Jagdish . Reliance
was also placed on the decision in Laxman Naskar wherein this
Court had discussed the factors to be considered before granting
remission.
7.9. It was urged that the prerogative power of remission is not
immune from judicial review, vide Epuru Sudhakar wherein it was
observed that judicial review of the order of remission is available
on the following grounds: (i) non-application of mind; ( ii) order is
mala fide; (iii) order has been passed on extraneous or wholly
irrelevant considerations; (iv) relevant materials kept out of
consideration; (v) order suffers from arbitrariness.
7.10. It was contended that in the present case, remission was
granted to all the convicts mechanically and without application of
mind to each of the cases a nd that the relevant factors were not
considered. That the State Government failed to consider the
relevant material and make an objective assessment while
considering the application s of the convicts for remission. The
nature and gravity of the crime, the impact of the remission order s
on the victim and her family, witnesses and society at large, were
not c onsidered. That m ere good behaviour in jail and completion of
fourteen years in jail are not the only pre-requisites while
considering the application for premature release of the convicts.
7.11. Attention was drawn to the fact that respondent No.3 herein
had approached the High Court of Gujarat by way of Crl. Application
No.4573 of 2019 seeking a direction to the State Government to
consider his application for remission. The High Court vide Order
dated 17.07.2019 dismissed the same in view of Section 432 of the
CrPC. Respondent No.3’s second application was also dismissed
vide Order dated 13.03.2020 passed by the Gujarat High Court.
That in fact, within fourteen days of the First Order dated
17.07.2019, respondent No.3 had approached the Government of
Maharashtra by way of an application dated 01.08.2019. Upon his
application, opinion was sought from the (i) Investigating Agency
(CBI) and the (ii) Presiding Officer of the convicting court (Special
Judge, Sessions Court, Greater Mumbai) , both of whom opined in
the negative and against remission being granted to the said
respondent . Further, the Superintendent of Police, Dahod, vide
letter dated 03.02.2020 gave a negative opinion by noting that the
victim and her relatives stated that respondent No.3 should not be
released. The District Magistrate, Dahod, also gave a negative
opinion vide letter dated 19.02.202 0, so also the Jail Advisory
Committee at its meeting held on 20.07.2021. That it was thereafter
that respondent No.3 approached this Court by filing Writ Petition
(Crl.) No.135 of 2022 and by Order dated 13.05.2022 this Court
directed the State of Gujarat to consider respondent No.3’s
application within a period of two months from the date of the order .
7.12. Further adverting to the sequence of events, it was stated that
in the meanwhile, the rest of the convicts had also applied
separately for remission in February 2021. The Presiding Officer
(Special Judge, Greater Mumbai) vide a common letter dated
22.03.2021 gave a negative opinion against the premature release
of the remaining ten convicts, respondent Nos.4 to 13 herein. That
thereafter, for one good year, their case was kept pending and only
after 07.03.2022 the new Superintendent of Police, Dahod, gave a
‘no objection’ for the premature release of all the convicts by
separate letters of the same date. The District Magistrate, Dahod,
also gave a positive opinion in favour of the premature release of all
the convicts. On 26.0 5.2022, a meeting of the Jail Advisory
Committee of Gujarat was held and this time, all the members of
the Committee gave a positive opinion. The Additional Director
General of Police, Prisons and Correctional Administration vide
letter dated 09.06.2022 this time gave a positive opinion and did not
raise any object ion for the release of the ten convicts.
7.13. That although the reference by the Jail Advisory Committee to
the State Government, was only qua respondent Nos.4 to 13, the
State Government erroneously recommended the name of
respondent No.3 also, to the Central Government for remission even
in the absence of any application pending before the State
Government .
7.14. Learned counsel for the petitioner next submitted that the
Presiding Judge’s reasoned negative opinion opposing the
premature release was disregarded and this was contrary to the
mandate of Section 432(2) of the CrPC. The remission Orders dated
10.08.2022 of respondent No.1 are in the teeth of the negative
opinion of the Presiding Judge, Special Judge (CBI), Sessions Court,
Greater Mumbai , dated 03.01.2020 and 22.03.2021, thereby,
defeating the purpose of Section 432(2) of the CrPC. Further, the
remission Order s dated 10.08.2022 are conspicuously silent about
the opinion of the Presiding Judge to be mandatorily obtained under
Section 432(2) of the CrPC. Not even a reference is made to the said
opinion. This amounts to an erasure of record by removing from
consideration a document that is statutorily mandated to be
considered and judicially held to be determinative. Reliance was
placed on Ram Chander to contend that the opinion of the
Presiding Judge of the court that convicted the offender will ‘have a
determinative effect’ on the exercise of executive discretion under
Section 432 of the CrPC. Further, reference was made to the
decision of this Court in V. Sriharan , wherein a Constitution Bench
of this Court held that the procedure stipulated in Section 432(2) of
the CrPC is mandatory and that the opinion of the Presiding Judge
of the Court which had tried the convict is critical and an essential
safeguard to check that the power of remission is not exercised
arbitrarily.
7.15. It was next contended that the premature release was
granted illegally as the imprisonment in default for the non -payment
of fine was not served. The Trial Court while sentencing the
respondent s-convicts had also imposed a fine of Rs. 2,000/ - on each
of them, for each of the fourteen counts of murder and three counts
of rape and in the event of default in payment of said fine, sentenced
them to suffer rigorous imprisonment for a further period of two
years each for each count. The total fine payable by the
respondents -convicts amounted to Rs.34,000/ - each and, in
default, they were liable to serve rigorous imprisonment for a period
of thirty -four years (two years each for each count) . The Trial Court
had further directed that the ‘substantive sentences’ shall run
concurrently and that the period of detention, if any, undergone by
the respondents -convicts during the investigation, enquiry, trial,
shall be set off against the terms of imprisonment, not being
imprisonment in default of payment of fine imposed on the accused.
That as per th e nominal roll of respondent Nos.3 to 13, none of them
had paid the fine sentenced by the Trial Court, making them liable
to serve the penalty of rigorous imprisonment for default in payment
of fine. But the respondent s have neither paid the fine of Rs.
34,000/ - to which each of them was sentenced, nor have they served
any sentence in default of the non -payment of fine. It was submitted
that the penalty of imprisonment ordered for default in payment of
fine stands on a completely different footing from the substantive
sentence of imprisonment to be undergone for an offence. While
under Section 432 of the CrPC, the Government has the power to
remit ‘punishment for offence’, the executive discretion does not
extend to waiving off the penalty of imprisonment for default in
payment of fine under Section 64 of the I PC. In this regard, reliance
was placed on Sharad Hiru Kolambe vs. State of Maharashtra ,
(2018) 18 SCC 718 (“Sharad Kolambe”) and Shantilal vs. State
of M.P. , (2007) 11 SCC 243 (“Shantilal”) .
7.16. It was asserted that respondent No.1 while granting
premature release failed to apply its mind and address the
determinative factors outlined by this Court in Laxman Naskar .
Thus, the order s of remission are vitiated by the vice of arbitrariness
for non -consideration of relevant facts and fact ors. According to
learned counsel for the petitioners , a bare perusal of the Order s
dated 10.08.2022 would make it clear that premature release was
granted mechanically and arbitrarily, without giving due
consideration to the factors enumerated in Laxman Naskar, qua
each of the respondent s-convicts. That the Order(s) dated
10.08.2022 are conspicuous in their silence on the behavior and the
following acts of misconduct of each of the respondents -convicts,
including the offences committed while on parole/furlough ,
namely ,:
i. Case Crime No.1121001200158/2020 was registered
against the respondent -convict, Mitesh Chimanlal
Bhatt, under Sections 354, 304 and 306 of the IPC,
committed on 19.06.2020 during parole/furlough ;
and
ii. Case Crime No.02/2015 was registered against the
respondent -convict, Rameshbhai Rupabhai Chadana
under the Prisons Act.
7.17. It was further submitted that it is trite that in cases where a
convict has been sentenced to more than one count of life
imprisonment, he can only be released if remission is duly granted
as per law for each count of life imprisonment. That it is a matter of
record that the respondent s-convicts were sentenced on fifteen
counts of life imprisonment. However, the Orders dated 10.08.2022
have not granted remission for each of the fifteen counts and is only
a generic and blanket order, making the release of the convicts
illegal and arbitrary.
7.18. That respondent No.3 approached this Court in Writ Petition
(Crl.) No.135 of 2022, without disclosing that he ha d already acted
on the judgment of the Gujarat High Court dated 17.07.2019 and
had submitted his application to the Home Department, State of
Maharashtra, and that his application had already been considered
by the authorities concerned, whereby , the major stakeholders had
written against the grant of remission to him. Further, when the
matter was listed before this Court, no notice was issued to the
petitioner – victim and neither was she heard by this Court in the
matter .
7.19. That the Orders dated 10.08.2022 have blatantly ignored the
grave and real apprehension regarding the safety and security of the
victims -survivors raised by public functionaries whose opinions are
required to be taken into account by respondent No.1 State before
granting premature release as per the 1992 policy. That this Court
in a catena of judgments , such as , Epuru Sudhakar and Rajan vs.
Home Secretary, Home Department of Tamil Nadu (2019) 14
SCC 114 (“Rajan”) has highlighted the importance of considerin g
the impact of premature release on the victims in particular and the
society in general . That even the Superintendent of Police, Dahod,
on 03.02.2020 had recommended against the release of
Radheyshyam Bhagwandas Shah as he had cited the possibility of
peace being disturbed. The Sessions Judge, Panchmahal at Godhra
also raised questions regarding the security of the victim – petitioner
herein .
7.20. Learned counsel next asserted that the en-masse and non -
speaking “sanction” of the Central Government dated 11.07.2022
under Section 435(1)(a) of the CrPC does not meet the statutory
requirement of “consultation”. The said sanction conveys its
approval for the premature release of eleven convicts sans any
reason as to why the case of each respondent -convict is deemed fit
for grant of remission. Thus, the approval was granted without
considering the relevant factors outlined in Laxman Naskar .
7.21. That non -application of mind is evident in the non -speaking
and stereotyped orders dated 10.08.2022 which are bereft of any
reason . The Orders are devoid of reasons or grounds as to why the
respondent s-convicts were found fit for the grant of remission. All of
the eleven orders are a verbatim replication of each other, having
only substituted the name and personal details of the respondent s-
convicts. Further, the recommendations of the Jail Advisory
Committee dated 26.05.2022 as regards remission of respondent
Nos.3 to 13 are untenable , being arbitrary and mechanical and
vitiated by non-application of mind. The said opinions are verbatim
and mechanical reproductions of each other that show no
independent consideration of facts of each case of the convicts .
7.22 With the aforesaid submissions, it was prayed that Writ
Petition (Crl.) No.491 of 2022 be allowed and a writ, order or
direction be issued quashing the Order s dated 10.08.2022 passed
by the State of Gujarat by which the convicts in Sessions Case No.
634 of 2004, Mumbai ( respondent No s.3 to 13 herein), were released
prematurely.
8. Learned senior counsel Ms. Indira Jaising appearing for the
petitioner in Writ Petition (Crl.) No.326 of 2022, at the outset
submitted that the petitioner is a Member of Parliament and is a
public personality and consequently possesses the locus to file this
petition as a bona fide person and citizen of India. That the
petitioner seeks to discharg e her fundamental duty under Article
51A(e) of the Constitution of India, seeking to promote harmony and
the spirit of brotherhood amongst the people of India, as well as to
denounce the derogation of the dignity of women. That the
petitioner seeks to uphold the rule of law and thus is not a mere
busybody.
8.1. The following submissions were made to contest the orders of
remission:
(i) that when the actions of the State cause some harm
to the general public, an action by a concerned
citizen would be maintainable and reliance was
placed on B.P Singhal vs. Union of India, (201 0)
6 SCC 331 (“B.P Singhal”) in this regard .
(ii) that the impugned decisions of remission is
characterized by arbitrariness and mala fides and
bear no consideration of relevant fact ors That the
power of the executive must be exercised in line with
constitutional ideals and must be for the benefit of
the public. In this regard, reliance is placed on
Maru Ram and S.P. Gupta vs . Union of India ,
(iii) that there exists no statutory right of appeal against
an order of remission. The only avenue available to
assail an order of remission is either under Article
32 or Article 226. Reliance was placed on Epuru
Sudhakar and Ram Chander. Further, the
jurisdiction of this Court is not ousted by the
existence of alternative legal remedies. Reliance was
placed on a Constitution Bench decision of this
Court in Kavalappara Kottarathil Kochuni vs.
States of Madras and Kerala, (1960) 3 SCR 887
(“Kochuni”) .
(iv) that the present proceedings pertain to
administrative law and not criminal law and as a
result, the principle of being a stranger to the
criminal proceeding does not apply to the case at
hand. Nevertheless, this Court has entertained
petitions filed by ‘strangers ’ in criminal matters in
the past, as in the case of K. Anbazhagan vs.
Superintendent of Police, (2004) 3 SCC 767 (“ K.
Anbazhagan”) .
(v) that such exercises of executive power may be
challenged on the basis of the grounds laid down in
Epuru Sudhakar and Maru Ram .
(vi) that an important question of law arises in the
present proceedings, namely , whether it is
appropriate to grant remission after a period of
fourteen years to convicts of heinous crimes. That a
further question arises , as to whether , the victims
of such crimes must be heard and due
consideration given to their vulnerability prior to the
grant of remission. That there needs to be a
consideration of how compliant such executive
actions and the associated policies are with
constitutional morality. Therefore, this Court may
quash the remission orders passed under Section
432 of the CrPC if they appear to be poorly
reasoned.
(vii) that there is a need to situate the crimes committed
in the larger context of sectarian and communal
violence that was ensuing in the 2002 riots in
Gujarat State . That the crimes were specifically
targeted at the victim on the basis of her religion
and gender. That these heinous crimes constitute
crimes against humanity. It was submitted that the
nature of the crime is important to consider while
deciding whether to grant remission. The
heinousness of the crimes committed by respondent
Nos.3 to 13, the comm unal motivation of the crime s
and the context in which those took place are
contended to have not been considered by the State
while granting remission. Reliance was placed on
Sanaboina Satyanarayana vs. Government of
Andhra Pradesh , (2003) 10 SCC 78 (“ Sanaboina
Satyanarayana”) , wherein a certain Government
Order issued by the State of Andhra Pradesh that
excluded from the scope of remission those
prisoners who had committed crimes against
women and were sentenced to life imprisonment
was upheld by this Court considering the nat ure of
the offences.
(viii) that the Executive is bound not merely by
provisions of the CrPC but also by the overarching
spirit of the Constitution that seeks to promote the
upliftment of women, children, and minorities and
to protect these groups from further vulnerability
and margi nalization. That the policies and actions
of the State must be guided by this vision.
(ix) that, in accordance with the aforementioned
constitutional principles, grant of remission to
those persons sentenced to life imprisonment and
accused of crimes under the Scheduled Castes and
Schedules Tribes (Prevention of Atrocities) Act, the
Explosive Su bstances Act and the Indian Arms Act,
as well as crimes against women under Sections
376 and 354 of the IPC must not be permissible.
Factors such as the opinion of the Presiding Judge,
public interest, potential for recidivism, impact on
the victims and on society and the nature of the
offence must be borne in mind by the State, as held
in Epuru Sudhakar, Sanaboina Satyanarayana
and Zahid Hussain vs. State of West Bengal,
2001 (3) SCC 750 (“Zahid Hussain”) . That the
non-consideration of these factors proves the mala
fide, arbitrary and unreason able manner in which
the impugned orders were passed.
(x) that the 1992 Policy of remission of the State of
Gujarat does not contain any substantive
guidelines pertaining to remission and merely deals
with procedural formalities. That the 2014 Policy is
thus the first instance at which categories of crimes
for wh ich remission may not be granted was
outlined. As such, it is the 2014 Policy that would
apply to the question of remission for respondent
Nos.3 to 13.
(xi) that the grant of remission to the respondent Nos.3
to 13 is in violation of India’s obligations under
international law, specifically instruments such as
the International Covenant on Civil and Political
Rights and the Convention on the Elimination of All
Forms of Discrimination Against Women. That rape
was use d as a tool of oppression by the perpetrators
and the victim in the instant case experienced
significant trauma as a consequence.
(xii) that the grant of remission in the instant case is in
violation of the obligation to prevent crimes against
humanity, which itself forms a part of the norm of
jus cogens. That there is a link between the
peremptory norm of jus cogens and fundamental
values , making the former non -derogable and a part
of domestic law even if not explicitly codified.
Reliance was placed on State of Punjab vs. Dalbir
Singh, (2012) 3 SCC 346 (“Dalbir Singh”) on this
aspect.
(xiii) that the acts of violence that were committed in
Gujarat in 2002 are crimes against humanity,
owing to their widespread nature and communal
motivations. That remission must not be granted to
perpetrators of crimes of such gravity.
8.2 With the above submission s learned senior counsel for the
petitioners sought quashing of the impugned orders.
9. Learned counsel Ms. Vrinda Grover for the petitioner in Writ
Petition (Crl.) No.352 of 2022, submitted that it was absolutely
necessary to consider the opinion of the Presiding Judge. Reliance
was placed on Ram Chander and V. Sriharan . Her further
submissions are recorded as under:
(i) that the Presiding Judge, namely the Special Judge
(CBI), Sessions Court, Mumbai gave negative
opinions dated 03.01.2020 and 22.03.2021 as to
grant of remission to respondent Nos.3 to 13. The
said opinion was well -reasoned and took into
account all of the relevant factors, but this was
completely disregarded by the respondent -State.
(ii) that a fine was imposed on each of the respondent -
convicts as a part of their sentence, amounting to
Rs. 34,000 /- per person. That they had defaulted in
paying these fines and thus would be required to
undergo rigorous imprisonment for a further period
of 34 years. The Trial Court had clarified that these
sentences were substantive in nature and would
run concurrently. In this context, reliance was
placed on Sharad Kolambe and Shantilal .
(iii) reiterating the submissions regarding the remission
orders being arbitrary by virtue of non -
consideration of relevant factors, it was urged that
the criteria outlined in the decision of this Court in
Laxman Naskar were not considered at all.
Reliance was further placed on the decision of this
Court in Mohinder Singh , wherein it was held that
the decision to grant remission must be reasonable,
well-informed and fair. That non -application of
mind and the mechanical nature of the remission
orders utterly belie these principles.
(iv) that reference has only been made to four
documents, namely (1) the order of this Court dated
13.05.2022, (2) the letter of the Additional Director
General of Police and Inspector General of Prisons,
State of Gujarat at Ahmedabad, (3) the Department
Circular dated 09.07.1992 and (4) the letter of the
Ministry of Home Affairs, Government of India in the
impugned orders of remission . It was contended
that the non -consideration of determinative factors
has rendered the remission orders mechanical and
arbitrary, with reliance placed on what is described
as the untenable and unlawful en-masse approval
of the Central Government.
(v) that one of the criteria that is required to be
considered which was highlighted in Laxman
Naskar is the possibility of reformation and
recidivism. That these factors have been given no
consideration as there is no mention of the
respondent -convicts’ behavior while in prison, as
well as offences committed while out on
parole/furlough. That a case has been registered
against one of the respondent -convicts under
Sections 304, 306 and 354 IPC while on parole .
That a range of punishments were imposed on the
respondent -convicts in prison hence, the possibility
of recidivism cannot be entirely ruled out.
(vi) that there is a real and grave apprehension of
danger to the victim if the respondent -convicts are
released into society. This has been reflected in the
recommendation of Superintendent of Police,
Dahod as well as the questions raised by the
Principal and Sessions Judge, Panchmahal at
Godhra in the Jail Advisory Committee meeting
dated 26.05.2022.
(vii) that remission must be granted for each particular
count of life imprisonment, as all of these are
superimposed over each other. Remission granted
qua one sentence does not automatically extend to
the others as well. That a generic, mechanical and
unreason ed blanket order of remission has been
passed by the respondent -State, as remission is not
stated to have been granted for all of the life
sentences of each respondent -convict.
(viii) that Section 435(1)(a) of the CrPC makes it
mandatory for the State Government to consult the
Central Government regarding the exercise of power
to grant remission. But the en-masse and non -
speaking nature of the sanction granted by the
Central Government, merely conveys approval of
the premature release of the respondent -convicts,
which do not meet the requirement of ‘consultation’.
Reliance was again placed on Laxman Naskar .
(ix) further, the opinion of the Sessions Judge,
Panchmahal, Godhra is of a casual and perfunctory
character, that doesn’t pay heed to the heinous
nature of the crimes committed.
(x) it was further submitted that the remission orders
having thus been established as unreasoned,
untenable and vitiated by arbitrariness and mala
fides, there is a need for judicial intervention in the
same.
10. Learned counsel for the petitioner in Writ Petition (Crl.)
No.319 of 2022, Ms. Aparna Bhat submitted t hat the aforesaid writ
petition has been filed purely in the interest of the general public
and out of concern for the impact on society if the respondent s-
convicts were released. That there is no political agenda behind the
filing of this writ petition by the petitioner , who is a member of a
national political party and an advocate for women’s rights.
11. Sri Mohammad Nizamuddin Pasha, learned counsel
appearing on behalf of the petitioner in Writ Petition (Crl.) No.403
of 2022 submitted that the cases which are at stages prior to
conviction. i.e., investigation and trial must be treated as being on
a different footing as guilt would not have been established and the
fair trial rights of the accused still subsisted. However, there is no
right to remission post -conviction as held in V. Sriharan . That it is
only upon conviction that the need for the accused to remain in
prison becomes a concern of the society. That all theories of
punishment, including those of retributivism and utilitarianism,
emphasize the impact on society as being of primary importance.
Reliance was placed on T.K. Gopal vs. State of Karnataka,
(2000) 6 SCC 168 (“T.K. Gopal”) , Narinder Singh vs. State of
Punjab, (2014) 6 SCC 466 (“Narinder Singh”) , Shailesh
Jasvantbhai vs. State of Gujarat, (2006) 2 SCC 359 (“Shailesh
Jasvantbhai”) and Ahmed Hussain Vali Mohammed Saiyed vs.
State of Gujarat, (2009) 7 SCC 254 (“Mohammed Saiyed”) .
12. Sri. S.V. Raju, learned Additional Solicitor General of India,
appearing on behalf of the State of Gujarat and Union of India, at
the outset submitted that the writ petition s filed by persons other
than the victim are not maintainable. That the said persons are
strangers and have no locus -standi to challenge the remission
orders passed by the State of Gujarat. The said petitioners are in no
way connected with the proceedings which convicted the
respondent s herein nor the proceedings which culminated in the
grant of remission to the convicts. Reliance was placed on the
decisions of this Court in Rajiv Ranjan ; Gulzar Ahmed Azmi ;
Simranjit Singh and Ashok Kuma r to contend that no third
party/stranger’s interference in criminal matters is permissible in
law in the garb of filing a PIL.
12.1. Referring to Writ Petition (Crl.) No.319 of 2022, it was
contended that nowhere has the petitioner therein, namely ,
Subhasini Ali pleaded as to how her fundamental rights had been
abridged and as to how she was aggrieved by the action of the State
Government. That the petitioner therein was nothing but an
interloper and a busybody and not a ‘person aggrieved’ as per the
dicta of this Court in M. V. Dabholkar and Jasbhai Motibhai .
Thus, the PIL filed by such a person is nothing but an abuse of the
PIL jurisdiction of this Court and against the principles laid down
in Tehseen and Ashok Kumar . Therefore, l earned ASG sought for
dismissal of all the PILs challenging the impugned orders of
remission on the ground of maintainability.
12.2. It was next contended that there was no illegality in the
Order s granting remission to respondent Nos.3 to 13, dated
10.08.2022. That this Court in Writ Petition (Crl.) No.135 of 2022
vide judgment dated 13.05.2022 had held that the policy which
would be applicable for deciding the remission application was the
one which was in vogue at the time of conviction i.e., the premature
release policy of 1992 and that for the purposes of Section 432 of
the CrPC, the ‘appropriate government’ for considering the
remission application is that State in which the offence was
committed and not the State in which the trial was conducted and
therefore, had directed the State of Gujarat to consider the
application of respondent No.3, Radheshyam Bhagwandas Shah.
Accordingly, the respondent -State of Gujarat had considered the
application of the convict as per the procedure prescribed under
Section 432 of the CrPC read with Section 435 of the CrPC , along
with the Premature Release of Convicts Policy of 1992. The State
Government considered the cases of all eleven prisoners as per the
policy of 1992 and remission was granted on 10.08.2022.
12.3. That further, the Order (s) dated 10.08.2022 w ere passed
after duly considering the opinions expressed by Inspector General
of Prisons, Gujarat State; Jail Superintendent; Jail Advisory
Committee, District Magistrate; Superintendent of Police, CBI,
Special Crime Branch, Mumbai; and the Special Court, Mum bai
(CBI). That as per Section 435 of the CrPC, it is indispensable to
obtain the sanction of the Government of India in cases in which
the investigation of the offence was carried out by a central
investigation agency. In the present case, the investigation was
carried out by CBI, hence, the State Government obtained the
approval of Government of India.
12.4. It was next submitted that respondent Nos.3 to 13 had
completed more than fourteen years in custody , that their behaviour
had been good and the opinions of the concerned authorities had
been obtained as per the policy of 09.07.1992. The State
Government submitted the opinions of the concerned authorities to
the Ministry of Home Affairs, Government of India vide letter dated
28.06.2022 and sought the approval of the Government of India
which conveyed its concurrence/approval under Section 435 of the
CrPC for the premature release of eleven convicts vide letter dated
11.07.2022. Hence, after following the du e procedure, Orders were
issued on 10.08.2022 to release the convicts which would not call
for any interference by this Court .
12.5. Reliance was placed on the judgment of this Court in
Jagdish wherein it was held that if a policy which is beneficial to
the convict exists at the time of consideration of his application for
premature release, then the convict cannot be deprived of such a
beneficial policy. It was held in the said case that , “In case a liberal
policy prevails on the date of consideration of the case of a “lifer” for
premature release, he should be given the benefit thereof.” That
bearing in mind such considerations, the applications of respondent
Nos.3 to 13 for remission were considered and decided.
12.6. That the crime in the instant case was admittedly committed
in the State of Gujarat and ordinarily, the trial was to be concluded
in the same State and in terms of Section 432 (7) of the CrPC, the
appropriate government in the ordinary course would be the State
of Gujarat . However, the trial in the instant case was transferred
under exceptional circumstances by this Court to the neighboring
State of Maharashtra for the limited purpose of trial and disposal by
an order dated 06.08.2004 but after the conclusion of trial and the
prisoner s being convicted, the matter stood transferred to the State
where the crime was committed and thus, the State of Gujarat was
the appropriate government for the purpose of Section 432(7) of the
12.7 It was submitted that the Orders dated 10.08.2022 were
passed by the Government of Gujarat after following the due
procedure laid down in this regard and on an application of mind.
Therefore, the same do not call for any interference by this Court in
these petitions.
13. Learned Counsel for respondent No.3, Sri Rishi Malhotra at
the outset attacked the maintainability of the writ petition s on the
ground that in substance, the petitions seek to challenge the
judgment of this Court dated 13.05.2022 in Writ Petition (Crl.)
No.135 of 2022 ; that the same is impermissible and is in the teeth
of the judgment of a Constitution Bench of this Court in Rupa
Ashok Hurra vs. Ashok Hurra , (2002) 4 SCC 388 , (“Rupa Ashok
Hurra ”) wherein it has been held that a writ petition assailing the
judgment or order of this Court after the dismissal of the Review
Petition is not maintainable. Thus, the only remedy, if any, available
to the petitioner -victim herein against the dismissal of the Review
Petition, is to file a Curative Petition as propounded by this Court in
the case of Rupa Ashok Hurra .
13.1. Sri Rishi Malhotra further submitted that in this proceeding
this Court cannot sit over the judgment passed by another co -
ordinate bench . It was further submitted that this Court by its
judgment dated 13.05.2022 was right in categorically directing the
State of Gujarat to consider the application f or premature release of
respondent No.3 in terms of the policy dated 09.07.19 92 which was
applicable on the date of conviction. That after duly taking into
account the fact that respondent No.3 had undergone over fifteen
years of imprisonment and that no objections were received from
the Jail Superintendent, Godhra and that nine out of ten members
of the Jail Advisory Committee had recommended his premature
release . That coupled with the aforesaid facts the Home Department
of the State of Gujarat as well as the Union Government had
recommended and approved the premature release of respondent
No.3. This clearly demonstrates that the remission order was
correct. Further, it is nowhere mentioned in the 1992 policy that all
stakeholders must give a unanimous opinion for the release of the
convict. All it says is that the State Government should collate
various opinions from different quarters in order to arrive at a
decision.
13.2. As regards the contention of learned counsel for the
petitioner -victim to the effect that the Orders are illegal inasmuch
as th ose were passed without consulting the Presiding Judge of the
convicting court as required under Section 432(2) of the CrPC, it
was submitted that the said provision categorically stipulates that
the appropriate government ‘may require’ the Presiding Judge of the
Trial Court to give his opinion, hence obtaining such an opinion is
not mandatory; whereas, Section 435 of the CrPC uses the word
‘shall’ in respect to the State Government to act only after
consultation with the Central Government. The legislature is
conscious to use the words ‘may’ and ‘shall’ whenever it deems
appropriate and necessary and that the said procedure has been
followed in the instant case .
14. At the outset, learned senior counsel appearing for
respondent No.13, Sri Sidharth Luthra contended that a writ
petition does not lie against the final order of this Court, thus the
petitioner s could have only filed a Curative Petition. He further
submitted as follow:
i) In this regard reliance was placed on the decision of this Court
in Rupa Ashok Hurra , where in it was held that a writ petition
under Article 32 assailing a final judgment of this Court is not
maintainable. That since the Review Petition against the Order
dated 13.05.2022 has been dismissed by this Court, similar
contentions cannot be re -agitated in the guise of the present
writ petition . Reliance was also placed on the decision of this
Court in Naresh Shridhar Mirajkar vs. State of
Maharashtra , AIR 1967 SC 1 (“Naresh Shridhar
Mirajkar”) , where in it has been held that a writ shall not lie
against an order of a Constitutional Court. It was thus
submitted that the order dated 13.05.2022 has attained finality
and cannot be questioned by way of a writ petition under
Article 32. Furthermore, in view of the Rules framed by this
Court, Order XLVIII thereof lays down how an order of this
Court can be questioned by means of a Curative Petition and
thus, a natural corollary is that the same cannot be done
through a writ petition .
ii) As regards the issue of appropriate government and
appropriate policy, learned senior counsel Sri Luthra
submitted that the said issues stood settled in view of this
Court’s Order dated 13.05.2022. The judgments of this Court
in Rashidul Jafar vs. State of U.P., 2022 SCC OnLine SC
1201 (“Rashidul Jafar”) ; State of Haryana vs. Raj Kumar,
(2021) 9 SCC 292 (“Raj Kumar”) and Hitesh vs. State of
Gujarat ( Writ Petition (Crl.) No.467/2022) (“Hitesh ”) were
pressed into service wherein it ha d been held that the policy as
on the date of conviction would apply, and therefore, the 1992
Policy of the State of Gujarat will apply for the grant of
remission in the present case.
iii) Learned senior counsel thereafter raised the plea that in India,
a reformative/rehabilitative and penal sentencing policy is
followed and not one which is punitive in nature. The same was
reiterated when the Model Prison Act, 2023 was finalized which
aims at “reforming prison management and ensuring the
transformation of inmates into law -abiding citizens and their
rehabilitation in society.” Furthermore, in the case of Vinter vs.
The United Kingdom (Applications Nos.66069/09, 130/10
and 3896/10) , (2016) III ECHR 317 (“Vinter “) in the context
of rehabilitation and reformation it was held by the European
Court of Human Rights tha t, “Moreover, if such a person is
incarcerated without any prospect of release and without the
possibility of having his life sentence reviewed, there is the risk
that he can never atone for his offence: whatever the prisoner
does in prison, however exceptional his progress towards
rehabilitation, his punishment remains fixed and unreviewable.”
Learned senior counsel submitted that respondent No.13 had
exhibited unblemished behaviour in prison and there was no
criminality attached to his conduct in prison.
iv) Sri Luthra refuted the argument of the petitioner s that in the
light of the grievous nature of the offence, the convicts herein
do not deserve remission. At the stage of remission, the length
of sentence or the gravity of the original crime cannot be the
sole basis for refusing premature release as held in Satish vs.
State of UP , (2021) 14 SCC 580 (“Satish”) . Therefore, any
argumen t regarding the factual nature of the crime or the
impact it had on society are not relevant for consideration of
remission was the submission of Sri Luthra .
v) That it is open for the High Court as well as this Court to modify
the punishment by providing for a specific period of
incarceration without remission, considering the purported
heinous nature of the offence but neither the High Court nor
this Court chose to exercise the said power to incarcerate the
private respondents herein for a duration which was non -
remittable . This shows that the a foresaid argument advanced
by the petitioner is only a red herring.
vi) It was emphasized t hat an order of remission passed by an
authority merely affects the execution of the sentence, without
interfering with the sentence passed by the Court. Therefore,
since the matter has already attained finality, it is not possible
to question the validity of such an order on factual grounds
alone , such as , the nature of crime, impact on society and
society’s cry for justice.
vii) Learned senior counsel submitted that the mere fact that fine
had not been paid or that there was a default in payment of the
fine imposed does not impact the exercise of the power of
remission. The sentence is something which an offender must
undergo unless it is set aside or remitted in part or in whole
either in appeal, or in revision, or in other appropriate judicial
proceedings or ‘otherwise’, whereas, a term of imprisonment
ordere d in default of payment of fine stands on a different
footing vide Shantilal ; Abdul Gani vs. State of Madhya
Pradesh , (1950) SCC OnLine MP 119 (“Abdul Gani”) and
Shahejadkham Mahebubkham Pathan vs. State of
Gujarat, (2013) 1 SCC 570 (“Shahejadkham
Mahebubkham Pathan”) . Further, reliance was place d on
Sharad Kolambe , wherein it was observed by this Court that,
“If the term of imprisonment in default of payment of fine is a
penalty which a person incurs on account of non -payment of fine
and is not a sentence in strict sense, imposition of such default
sentence is completely different and qualitatively distinct fro m a
substantive sentence.”
15. Learned senior counsel appearing for respondent No.7 Mrs.
Sonia Mathur, while adopt ing the submissions of other senior
counsel further contended as under:
15.1. That as per Section 432 (7)(b) of the CrPC and the judicial
precedent set in Radheshyam Bhagwandas Shah , the
appropriate government would be the State of Gujarat. The said
judgment has attained finality as the Review Petition filed against
the said judgment was dismissed by this Court on 13.12.2022.
Thus, the said judgment must be followed for the sake of j udicial
propriety.
15.2. As to the nature of the requirement under Section 432 (2) of
the CrPC, i.e., whether mandatory or directory, it was submitted
that as observed by this Court in Ram Chander the opinion so
obtained is not to be mechanically followed and the government has
the discretion to seek an opinion afresh. That the said view would
demonstrate that the discretion vests with the concerned
government as to whether or not to seek and rely u pon the opinion
of the Presiding Judge of the Trial Court.
15.3. As regards the contentions of the learned counsel for the
petitioner -victim as to non -payment of fine, it was submitted that a
fine of Rs.6,000 /- was paid by respondent No.7 without any
objection on 27.09.2019 before the Sessions Court, Greater
Mumbai . However, without prejudice to the said payment, there is
no provision in the Prison Manual of Gujarat, which bars remission
from being granted if the fine is not paid. The grant of remission
cannot be restricted just because a convict is not financially capable
to bear the fine. The same would cause discrimination based on the
economic and financial capacity of a convict to pay fine, resulting
in the violation of Articles 14 and 21 of the Constitution.
15.4. We have heard learned counsel for the other respondents.
With the aforesaid submissions, it was prayed that these writ
petition s be dismissed.
Reply Arguments:
16. Ms. Shobha Gupta, learned counsel for the petitioner -victim
submitted in her rejoinder on the point that the writ petition was
maintainable under Article 32 of the Constitution as follows :
(i) that the order of grant of remission being an
administrative order, there was neither a statutory
nor substantive right of appeal available to the
aggrieved parties. The only remed y available w as to
file a writ petition under Article 226 of the
Constitution before the High Court of Gujarat, or to
file a writ petition before this Court under Article 32
of the Constitution.
(ii) that this Court has on multiple occasions entertained
writ petitions under Article 32 of the Constitution in
those cases where there existed a “gross violation of
fundamental rights”, or when an executive or
administrative decision “shocked the conscience of
the public, the nation or of this Court”. In this context,
reliance was placed on the judgments of this Court in
Epuru Sudhakar ; Satpal vs . State of Haryana ,
(2000) 5 SCC 170 (“Satpal”) and Mohammed Ishaq
vs. S. Kazam Pasha , (2009) 12 SCC 748
(“Mohammed Ishaq ”). It was submitted that a similar
issue of maintainability arose in Mohammed Ishaq ,
wherein this Court observed that the mere existence
of an alternative remedy in the form of Article 226 does
not preclude an aggrieved person from approaching
this Court directly under Article 32. The rule requiring
the exhaustion of alternative remedies was described
as being one of “convenience and discretion” as
opposed to being absolute or inflexible in nature.
(iii) that this Court ha d in the past entertained writ
petitions under Article 32 filed by convicts seeking
intervention in matters of premature release or the
issuance of appropriate directions. Reliance was
placed on the judgments in Ram Chander, Laxman
Naskar and Rajan.
(iv) that this Court had earlier entertained a writ petition
filed by none other than respondent No.3 himself and
no question was raised as to the maintainability of
that writ petition. All of the other private respondent s
are beneficiaries of the order dated 13.05.2022 passed
by this Court in the aforesaid writ petition . It is thus
incongruous to raise the objection of maintainability
only against the writ petition filed by the petitioner -
victim . That the petitioner -victim was totally unaware
of Writ Petition (Crl.) No.135 of 2022 filed by
respondent No.3 seeking premature release before
this Court. The petitioner learnt about the release, like
the general public did, from the news and social
media. That the petitioner had barely begun to recover
from the shock of respondent Nos.3 to 13 being
released when several PILs were filed, and this Court
was already seized of the matter. This left the
petitioner with no choice but to approach this Court.
(v) that the petitioner had also filed a Review Petition
seeking review of the order dated 13.05.2022, wherein
this Court held the State of Gujarat to be the
appropriate government to consider the grant of
remission, being the State in which the crime took
place. The said order was per incuriam and contrary
to the judgements of this Court. On this aspect,
reliance was again placed on V. Sriharan, Rattan
Singh, M. T. Khan and Hanumant Dass . Hence, the
petitioner was under the impression that the said
Review Petition and this writ petition would be
considered together by this Court. But the Review
Petition has been dismissed. Hence, this writ petition
has to be considered on its own merits.
(vi) that the challenge to the maintainability of this writ
petition is fallacious in the context of the specific
argument raised by respondent Nos.1 and 2, namely ,
that the direction given by this Court as on
13.05.2022 was a mandate that was merely being
adhered to in the remission order and therefore the
same would not be open to challenge. That this further
exemplifies non -application of mind and a hasty and
mechanical manner of granting remission by
misrepresenting about the order dated 13.05.2022.
(vii) It was submitted that the ‘right to justice’ was
recognized as an indispensable human and
fundamental right in Anita Kushwaha vs. Pushap
Sudan, (2016) 8 SCC 509 (“Anita Kushwaha”) , and
that this writ petition was maintainable on that basis
also.
In light of the aforementioned submissions, learned counsel
contended that the filing of a writ petition under Article 32 before
this Court is the most efficacious remedy available to the petitioner .
16.1. Reiterating her submissions regarding the non -consideration
of the negative opinions of the investigating agency, namely the CBI
as well as the Judge of the Special CBI Court, Mumbai, learned
counsel went on to refute the claim of the learned Additional
Solicitor -General that the relevant opinion would be that of the
Presiding Judge of the Godhra Court who was convinced of the
merits of grant of remission. That this contention of learned ASG
would contradict the plain language of Section 432(2) which
specif ies that the Presiding Judge should have been the one who
awarded or confirmed the sentence. Reliance was again placed on
the judgments of this Court in Sangeet, Ram Chander and V.
Sriharan. Learned counsel further contended that the submission
of the learned ASG that the use of the word ‘may’ in Section 432(2)
would imply that there is no necessary requirement to seek the
opinion of the Presiding Judge is erroneous in light of the dictum of
this Court in V. Sriharan .
16.2. It was next contended that a letter dated 17.11.2021 was filed
along with the application dated 10.08.202 2. The said letter by the
State of Gujarat addressed to the State of Maharashtra detailed that
the State of Gujarat possessed no powers of remission with respect
to respondent No.3 and that the appropriate government in this
respect would be the State of Maharashtra. Despite taking this view,
which is in accordance with the position of law laid down by this
Court in various cases, including V. Sriharan , no review petition
was filed by the State challenging the 13.05.2022 order.
16.3. It was next submitted that the learned Additional Solicitor -
General had placed on record the opinion of the CBI dated
09.07.2022 where in, after an apparent change of mind, grant of
remission to respondent Nos.3 to 13 was recommended. That
neither of the documents, namely , the letter of the State of Gujarat
and the changed opinion of the CBI find any mention in the counter -
affidavit filed by the State on 17.10.2022. It was further submitted
that these additional documents establish the rapid timeline of the
process adopted by the Central Government in affirming the orders
of remission, as the State Government’s communication was
received on 06.07.202 2, the opinion of the CBI was sought and
received on 09.07.202 2 and the Central Government expressed its
concurrence on 11.07.202 2.
16.4. It was further contended that respondent No.3 produced a
document dated 18.06.2022 during the course of his arguments,
stating that the same was the opinion of the Presiding Judge of the
Mumbai Special Court (CBI). However, the veracity of the said
document cannot be established as the State claimed to be not in
possession of and is entirely unaware of the s ame.
16.5. Learned counsel reiterated that the above facts reveal non -
application of mind and the mechanical manner in which the orders
of remission were passed in the instant case .
16.6. Learned counsel for the petitioners next submitted that on
30.08.2023, the fine amounts owed were deposited by respondent
Nos.3 to 13. That this is as an admission on their part of the non -
payment of fine. It was contended that they would ordinarily have
had to undergo a further period of six years of imprisonment. That
non-consideration of this fact further proves the non -application of
mind and a mechanical exercise of power by the State of Gujarat
and Union of India in granting remission.
16.7. Learned counsel went on to submit that in Writ Petition (Crl.)
No.135 of 2022 filed by respondent No.3, there was no mention of
material particulars , such as , the name of the petitioner -victim and
the nature of the crimes in question, i.e., gang rape and mass
murder in the petition . Also the fact t hat his application for grant
of remission before the State of Maharashtra had been negatively
opined by all the concerned authorities. That respondent No.3 did
not place on record the judgements and orders of the Trial Court,
High Court, and this Court that had upheld his conviction. That he
made “incorrect and misleading” statements with reference to the
order s of the Bombay High Court dated 05.08.2013 and Gujarat
High Court dated 17.07.2019 , namely , that the two courts had
given differing opin ions, and this fact played a role in this Court’s
decision -making while passing the order dated 13.05.2022.
Respondent No.3 made it seem like both High C ourts were sending
him to the other State and that there was a contradiction. However,
the aforesaid order of the Bombay High Court was dealing with the
transfer of convicts to another jail in their parent State and did not
discuss the issue of remission, which could not have arisen in the
year 2013.
16.8. It was reiterated that the investigating agency of the State of
Gujarat had filed a closure report stating that the accused persons
were not traceable. That the FIR contained erroneous recording of
facts merely to hinder the investigative process. That the case was
transferred by this Court to the State of Maharashtra as a
consequence of the tainted nature of investigation. That the only
reason the petitioner could get justice was because the investigation
was conducted by the CBI. That this demonstrates th e highly biased
and partisan treatment of the petitioner by the State of Gujarat.
That the State has been granting parole and furlough to the
respondent s in a liberal manner once they were transferred to the
Godhra Jail. That in light of the highly diabolical and gruesome
nature of the crime s, the treatment awarded to the respondent s by
the State indicates favouritism and leniency.
16.9. Learned counsel reiterated that the nature of the crimes
committed by the respondent Nos.3 to 13 were unusual and
egregious. That these crimes were very shocking to the society as a
whole and the treatment of the respondent s upon being granted
remission invoked a common sense of pain in the nation. That in
fact the Bombay High Court had described the brutal treatment of
the victims by the respondent Nos.3 to 13, which was reflected in
the condition of the dead bodies. These factors require that
respondent s Nos.3 to 13 be treated differently from other ordinary
criminal s.
17. Learned senior counsel, Ms. Indira Jaising, appearing for the
petitioner in Writ Petition (Crl.) No.326 of 2022 in her rejoinder at
the outset submitted that the State of Gujarat does not have a policy
of any kind for the release of prisoners under Section 43 2 of the
CrPC. That the 1992 Policy merely outlines the procedure to be
follow ed when releasing convicts on remission. That the State must
abide by the law laid down by this Court as well as the
constitutional mandate to protect the fundamental rights of women,
particularly when they are victims of sexual violence in relation to
ethnic conflict.
17.1 Further, it was contended t hat the State of Gujarat is not the
appropriate government and therefore the order of this Court dated
13.05.2022 is per incuriam by virtue of failing to follow the binding
precedent in V. Sriharan . That the impugning of the order of the
Gujarat High Court that held the State of Maharashtra to be the
appropriate Government in Writ Petition (Crl.) No.135 of 2022, filed
by respondent No.3, is completely contrary to the position of law
laid down in Naresh Shridhar Mirajkar , wherein it was held that
no writ petition alleging the violation of fundamental rights would
lie against the judgement or order of a court. That the respondent
No.3 committed fraud on this Court by misrepresenting the order
of the Bombay High Court dated 05.08.2013 in Writ Petition (Crl.)
No.135 of 2022. That the question of two High C ourts taking
“dramatically different views” did not arise as the issue of
appropriate Government was not in question before the Bombay
High Court at all. That this amounts to suppres sio veri, expression
falsi. That this Court in Union of India vs . Ramesh Gandhi ,
(2012) 1 SCC 476 (“Ramesh Gandhi”) , has held that any
judgement that is a consequence of misrepresentation of necessary
facts would constitute fraud and would be treated as a nullity. That
this error of the Court cannot lead to the deprivation of justice to
the victims. While the criminal justice system must strive to adopt
a reformative approach, proportionality of sentence must be treated
as an equally important ideal. Reliance was placed on the
judgements of this Court in Alister Anthony Pareira vs . State of
Maharashtra , (2012) 2 SCC 648 (“Alister Anthony Pareira”) ,
Ravji vs . State of Rajasthan , (1996) 2 SCC 175 (“Ravji”) and
Soman vs . State of Kerala , (2013) 11 SCC 382 (“Soman”) .
18. Ms. Vrinda Grover, learned counsel for the petitioner in Writ
Petition (Crl.) No.352 of 2022 reiterated the contentions as to the
centrality and non -optional nature of seeking the opinion of the
Presiding Judge under Section 432(2) of the CrPC, the non -serving
of the concurrent sentences for the non -payment of fine by the
respondent Nos.3 to 13 as well as the need to consider the nature
of the crime s and the impact on public welfare while considering
the grant of remission. Reliance was placed on the judgment of this
Court in Ram Chander, Sharad Kolambe, Devendra Kumar vs .
State of Uttaranchal , (2013) 9 SCC 363 (“Devendra Kumar”)
and Abdul Gani.
18.1. It was further submitted that the State of Gujarat has not
considered the possibility of recidivism and whether there was any
evidence of reformation of respondent Nos.3 to 13. That as per the
record, respondent Nos.3 to 13 have not demonstrated any sign of
reform and have not expressed any remorse for the crimes they have
committed. That their applications for remission do not contain
reference to feelings of remorse felt by them for their actions. The
non-payment o f fine is further indication of th e absence of remorse.
Also fresh cases have been registered against two of the
respondent s, and this serves as proof of their non -reformation.
18.2. It was also contended that reliance cannot be placed on
documents , such as , letter dated 09.07.2022 of the C.B.I, wherein
an affirmative opinion on remission was expressed as well as a letter
produced by respondent No.3 containing the affirmative opinion of
the Special Judge (C.B.I), Civil and Sessions Court , Mumbai as
these documents have not been listed among the documents relied
upon by the State of Gujarat while granting remission to the
respondent Nos.3 to 13.
19. Ms. Aparna Bhat, learned counsel for the petitioner in Writ
Petition (Crl.) No.319 of 2022 in her rejoinder submitted that the
remission granted by the State of Gujarat to respondent Nos.3 to
13 was violative of Article 14 of the Constitution of India. That
prison statistics from the year 2021 reveal that 66.7% of the
convicts in Gujarat are undergoing life imprisonment, at least a
fraction of whom have completed fourteen years of incarceration.
That no special case has been made out either by the State of
Gujarat or the Union of India as to why respondent Nos.3 to 13 are
singularly entitled to remission over all of the other convicts.
Reliance was placed on judgements in S. G. Jaisinghani vs . Union
of India , AIR 1967 SC 1427 (“S. G. Jaisinghani”) and E.P.
Royappa vs . State of T.N., (1974) 4 SCC 3 (“E.P. Royappa”) ,
where in this Court held that arbitrary and mala fide exercise of
power by the State would constitute a violation of Article 14 of the
Constitution. That discretionary and en-masse remission on festive
occasions was held to be impermissible in the case of Sangeet .
19.1. It was further submitted that there is no right to remission
that a convict can necessarily avail. That remission must be an
exercise of discretion judiciously by the concerned authorities.
Reliance was placed on the judgment s of this Court in Sangeet, V.
Sriharan, State of Haryana vs . Mahender Singh , (2007) 13 SCC
606 (“Mahender Singh”) ; Mohinder Singh, Maru Ram and Shri
Bhagwan vs . State of Rajasthan , (2001) 6 SCC 296 (“Shri
Bhagwan”) .
20. Mr. Mohammad Nizamuddin Pasha, learned counsel for the
petitioner in Writ Petition (Crl.) No.403 of 2022 reiterated the
contention that materials not relied upon by the State of Gujarat
while deciding on the question of remission for respondent Nos.3 to
13 cannot be used to justify the decision retrospectively. Reliance
was placed on the decision of this Court in OPTO Circuit India
Ltd. vs. Axis Bank, (2021) 6 SCC 707 (“OPTO Circuit”) . That
contrary to the submission of the learned ASG, the State has to
consider the gravity of the offence while deciding whether to grant
remission or not. That in cases, where the crimes are of a much less
serious nature, remission has not been granted owing to the
perceived seriousness of the offence s by the State but in these cases
of gruesome crime, remission has been simply granted . Further,
there is a need to consider the fact that the victim and the convicts
live in close proximity while granting remission , which fact has been
considered in other cases but not in the impugned remission
orders.
Points for consideration :
21. Having heard learned senior counsel and learned counsel for
the respective petitioners as well as learned ASG, learned senior
counsel and learned counsel for the respondents, the following
points would arise for our consideration: -
1) Whether the petition filed by one of the victims in Writ
Petition (Crl.) No.491 of 2022 under Article 32 of the
Constitution is maintainable?
2) Whether the writ petitions filed as Public Interest
Litigation (PIL) assailing the impugned orders of
remission dated 10.08.2022 are maintainable?
3) Whether the Government of the State of Gujarat was
competent to pass the impugned orders of remission?
4) Whether the impugned orders of remission passed by
the respondent -State of Gujarat in favour of
respondent Nos.3 to 13 are in accordance with law?
5) What Order?
The aforesaid points shall be considered in seriatim .
A detailed narration of facts and contentions would not call for
reiteration at this stage .
Re: Point No. 1: “Whether the petition filed by one of the
victims in Writ Petition (Crl.) No.491 of 2022 under
Article 32 of the Constitution is maintainable?”
22. Sri Rishi Malhotra, learned counsel for respondent No.3, while
placing reliance on the decisions of this Court, made a specific plea
regarding maintainability of Writ Petition (Crl.) No.491 of 2022 filed
by the victim by contending that the said petitioner had filed a
review petition challenging the order dated 13.05.2022 passed in
Writ Petition (Crl.) No.135 of 2022 and the same was dismissed.
Therefore, the only remedy open to the petitioner was to file a
curative petition in terms of the judgment of this C ourt in Rupa
Ashok Hurrah and not challenging the remission orders by filing a
fresh writ petition. We shall answer this con tention in detail while
considering point No.3 .
22.1. One of the contentions raised by learned Senior Counsel, Sri
S. Guru Krishna Kumar appearing for one of the private
respondents was that the petitioner in Writ Petition (Crl.) No.491 of
2022 , Bilkis Bano , ought to have challenged the orders of remission
before the Gujarat High Court by filing a petition under Article 226
of the Constitution rather than invoking Article 32 of the
Constitution before this Court. In this regard, it was submitted that
by strai ghtaway filing a petition under Article 32 of the Constitution
a right of approaching this Court by way of an appeal by an
aggrieved party has been lost. It was submitted that if victims file
petitions under Article 32 of the Constitution before this Court
challenging orders of remission, floodgate s would be opened and
persons such as the petitioner would straightaway file writ petition s
before this Court. That when an alternative remedy of filing a writ
petition under Article 226 of the Constitution is available which is
also a wider remedy than Article 32 of the Constitution, the petition
filed by the writ petitioner in Writ Petition (Crl.) No.491 of 2022
must be dismissed reserving liberty to her to approach the High
Court, if so advised.
Similar arguments were made by learned senior counsel Sri
Chidambaresh.
22.2. At the outset, we state that Article 32 of the Constitution is a
part of Part -III of the Constitution of India which deals with
Fundamental Rights. The right to file a petition under Article 32 of
the Constitution is also a Fundamental Right. In the instant case,
the petitioner - Bilkis Bano has filed her writ petition under Article
32 of the Constitution in order to enforce her Fundamental Rights
under Article 21 of the Constitution which speaks of right to life and
liberty and Article 14 which deals with right to equality and equal
protection of the laws. The object and purpose of Article 32 of the
Constitution which is also recognised to be the “soul of the
Constitution” and which is a Fundamental Right in itself is for the
enforcement of other Fundamental Rights in Part-III of the
Constitution. We think that the aforesaid constitutional remedy is
also to enforce the goals enshrined in the Preamble of the
Constitution, which speak of justice , liberty, equality and fraternity.
Bearing in mind the expa nded notion of access to justice which also
includes speedy remedy , we think that the petition filed by the
petitioner in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed
on the ground of availability of an alternative remedy under Article
226 of the Constitution or on the ground of its maintainability
under Article 32 of the Constitution before this Court.
22.3. There is another strong er reason as to why the said petitioner
has approached this Court by filing a petition under Article 32 of
the Constitution rather than invoking Article 226 of the
Constitution before the High Court. That is because earlier, one of
the respondents, namely, r espondent No.3 Radheshyam
Bhagwandas Shah had preferred Writ Petition (Crl.) No.135 of 2022
invoking Article 32 of the Constitution before this Court by seeking
a direction to the State of Gujarat to consider his case for remission
under the Policy of 1992 . This Court issued a categorical direction
to that effect. In fact, the respondent -State has understood the said
direction as if it was a command or a direction to grant remission
within a period of two months. But, before this Court in the said
proceedings , one of the serious contentions raised by the State of
Gujarat was that it was not the appropriate Government to grant
remission which contention was negatived by the order dated
13.05.2022 . In fact, that is one of the grounds raised by the
petitioner v ictim to assail the orders of remission granted to
respondent Nos.3 to 13. That being so, the High Court of Gujarat
would not have been in a position to entertain the aforesaid
contention in view of the categorical direction issued by this Court
in Writ Petition (Crl.) No.491 of 2022 disposed on 13.05.2022. In
the teeth of the aforesaid order of this Court, the contention
regarding the State of Gujarat not being the competent State to
consider the validity of the orders of remission in a petition filed
under Article 226 of the Constitution, particularly, when the
question of competency wa s raised, could not have been dealt with
by the Gujarat High Court on the principle of judicia l propriety.
Therefore, for this reason also the petitioner in Writ Petition (Crl.)
No.135 of 2022 has, in our view, rightly approached this Court
challenging the orders of remission. The contentions of learned
Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh
are hence, rejected. Thus, we hold that Writ Petition (Crl.) No.491
of 2022 filed under Article 32 of the Constitution is clearly
maintainable.
Re: Point No.2 : “Whether the writ petitions filed as Public
Interest Litigation (PIL) assailing the impugned orders of
remission dated 10.08.2022 are maintainable?”
23. We now record the submissions made with regard to
maintainability of the Public Interest Litigation (PIL) assailing the
orders of remission in favour of respondent Nos.3 to 13 herein.
23.1. Learned ASG appearing for the State of Gujarat as well as
Union of India submitted that the writ petitions filed as public
interest litigations are not maintainable as the petitioners are
strangers to the impugned orders of remission and they are in no
way connected with the matter. In this context, reliance was placed
on certain decisions referred to above including Rajiv Ranjan,
Simranjit Singh , and, Ashok Kumar , to contend that there can
be no third party interference in criminal matters in the garb of
filing public interest litigations. It was also contended that the
petitioners who have filed the public interest litigation are
interlopers and busybodies and are not persons who are aggrieved.
In the aforesaid context, reliance was placed on M.V. Dabholkar
and Jasbhai Motibhai .
23.2. Shri Sidharth Luthra, learned senior counsel has also voiced
the arguments of the respondents by referring to certain decisions
of this Court while contending that the grant of remission is in the
exclusive domain of the State and although no convict can seek
remission as a matter of fundamental right has nevertheless the
right to be considered for remission. Tha t remission is a matter
between the convict and the State and, therefore, there can be no
third party inference in such a matter. The detai led submissions of
the learned counsel have already been adverted to above and,
therefore, it is unnecessary to reproduce the same once again.
23.3. Respondent No.3 has challenged the locus of the petitioner s
in Writ Petition (Crl.) No.319 of 2022 and connected writ petitions
and contended that the petitioner s therein are not related to the
said case and are third -party /strangers to the case. If petitions filed
by third - party strangers are entertained by this Court, then it
would unsettle the settled position of law and would open floodgates
for litigation. Learned counsel for respondent No.3 Sri Rishi
Malhotra placed reliance on the decision of this Court in Janata
Dal vs. H.S. Chowdhary, (1992) 4 SCC 305 (“Janata Dal”) which
was reiterated and followed in Simranjit Singh and in
Subramanian Swamy vs. Raju, (2013) 10 SCC 465
(“Subramanian Swamy ”) where it has consistently been held that
a third party, who is a total stranger to the prosecution has no 'locus
standi ' in criminal matters and has no right whatsoever to file a
petition under Article 32.
23.4. In Simranjit Singh , this Court was faced with the situation
where a conviction of some of the accused persons by this Court
under the Terrorist and Disruptive Activities (Prevention) Act,
(TADA Act ) was sought to be challenged under Article 32 of the
Constitution by the President of the Akali Dal (M), namely, Simranjit
Singh Mann which was dismissed. In paragraph 5 of the judgment
in Simranjit Singh , this Court categorically dealt with the said
issue and held that the petition under Article 32 of the Constitution
was not maintainable for the simple reason that the petitioner
therein did not seek to enforce any of his fundamental rights nor
did he com plain that any of his fundamental rights were being
violated. This Court was of the view that a total stranger in a
criminal case cannot be permitted to question the correctness of a
decision.
24. Per contra , learned senior counsel, Ms. Indira Jaising, has
made her submissions o n the issue of locus standi of the petitioner
in Writ Petition (Crl.) No.326 of 2022. According to her, even when
no specific legal injury is caused to a person or to a determinate
class or group of persons by an act or omission of the State or any
public authority but when an injury is caused to public interest, a
concerned citizen can maintain an action for vindicating the rule of
law and setting aside the unlawful action or enforcing the
performance of public duty. ( Vide B.P Singhal ).
24.1. She asserted that the writ petition raise s questions of great
public importance in that, in a democracy based on the rule of law,
no authority has any unfeterred and unreviewable discretion. All
powers vested in an authority, are intended to be used only for
public good. The exercise of executive power must be informed by
the finer canons of constitutionalism, vide Maru Ram. That the
impugned decision of granting remission to the convicts violates
rule of law, is arbitrary and not based on any relevant
consideration. Therefore, the writ petition filed by the petitioner in
public interest is maintainable. In this regard relian ce was p laced
on S.P. Gupta .
24.2. As regards respondents’ contention that by entertaining the
petition under Article 32 of the Constitution the convicts have been
denied the right of appeal, it was submitted that there exists no
statutory right of appeal against an order denying or permitt ing
remission. Such an order can only be challenged under Article 226
or Article 32 of the Constitution. Further, a Constitution Bench of
this Court in Kochuni observed that, “…the mere existence of an
adequate alternative remedy cannot per se be a good an d sufficient
ground for throwing out a petition under Article 32, if the existence
of a fundamental right and a breach, actual or threatened, of such
right is alleged and is prima facie established on the petition.”
24.3. As regards the respondents’ submission that a stranger to the
criminal proceedings under any circumstance cannot file a petition
under Article 32, it was contended that the instant proceedings are
not criminal in nature, they fall within the realm of admin istrative
law as they seek to challenge orders of remission which are
administrative decisions . Learned senior counsel brought to our
notice the fact that this Court had entertained a petition filed by a
DMK leader under Section 406 of the CrPC seeking the transfer of
a pending criminal trial against his political opponent, J.
Jayalalithaa, from the State of Tamil Nadu to the State of Karnataka
vide K. Anbazhagan .
25. Ms. Vrinda Grover, learned counsel for the petitioner in Writ
Petition (Crl.) No.352 of 2022, at the outset, submitted that the said
petition has been filed in the larger public interest by the petitioners
who have vast knowledge and practical expertise on issues of public
policy, governance and upholding the rule of law. Their petition
challenges not only the arbitrary and mala fide exercise of executive
prerogative under Section 432 of the CrPC, but also prays for a shift
in practices related to the grant of remission by bringing in more
accountability and transparency to the process of grant of
remission. Thus, the writ petition is maintainable as a Public
Interest Litigation.
25.1. Learned counsel contended that the petition does not
constitute an intervention into criminal proceedings but is rather a
challenge to arbitrary executive action, which is amenable to
judicial review. That it is settled law that the exercise of power under
Section 432 of the CrPC is an administrative act which neither
retracts from a judicial order nor does it wipe out the conviction of
the accused and is merely an executive prerogative exercised after
the judicial function in a criminal proceeding has come to an end
vide Epuru Sudhakar and Ashok Kumar.
25.2. It was further submitted that all the judgments cited by the
respondents -convicts as also the respondent -State to argue that the
petitioners have no locus standi in the matter refer to different
stages of criminal proceedings, viz. petitions related to
investigation, trial, sentencing or quashing of the FIR. However, the
present petition is a challenge to the arbitrary and mala fide
administrative action which has arisen after the criminal
proceedings have attained finality in the eye of law.
25.3. Learned counsel submitted that it is trite that the exercise of
executive discretion is subject to rule of law and fairness in State
action as embodied in Article 14 of the Constitution. The exercise of
such discretion under Section 432 of the CrPC which is arbitrary or
mala fide amounts to State action in violation of constitutional and
statutory obligations and is detrimental to public interest. Learned
counsel placed reliance on the decision of this Court in S. P. Gupta
to submit that this Court ha s in many cases held that in case of
public injury caused by an act or omission of the State which is
contrary to the rule of law, any member of the public acting bona
fide can maintain an action for redressal of a public wrong. In the
case at hand, the mala fide and arbitrary grant of premature release
to the respondents -convicts by State action is de hors constitutional
mandate and abets immunity for violence against women. ( Vide
Sheonandan Paswan vs. State of Bihar, (1987) 1 SCC 288
(“Sheonandan Paswan”) and Abdul Wahab K. vs. State of
Kerala, (2018) 18 SCC 448 (“Abdul Wahab”) .
25.4. Learned counsel next submitted that this Court in
Subramanian Swamy, while adjudicating on the locus of a public -
spirited intervenor in a case requiring interpretation of the Juvenile
Justice (Care and Protection of Children ) Act, 2015, held that the
intervenor had sought an interpretation of criminal law which
would have a wide implication beyond the scope of the parties in
that case and hence, allowed the same. Thus, when larger questions
of law are involved, which include interpretation of statutory
provisions for the purpose of grant of premature release/remission,
public -spirited persons who approach the Court in a bona fide
manner, ought not to be prevented from assisting the Court to
arrive at a just and fair outcome.
25.5. Learned counsel Ms. Grover further submitted that in cases
where offences have shocked the conscience of the society, spread
fear and alarm amongst citizens and have impugned on the secular
fabric of society, like in the instant case, this Court has allowed
interventions by members of the public seeking to bring to the
attention of the Court the inaction and apat hy on the part of the
State in discharging its duty within the criminal justice system. It
has been held in some cases that the technical rul e of locus cannot
shield the arbitrary and illegal exercise of executive discretion in
violation of constitutional and statutory principles, once the same
have been brought to the attention of this Court.
26. Learned counsel for the petitioner in Writ Petition (Crl.)
No.319 of 2022, Smt. Aparna Bhat submitted that the petitioner
has locus standi to approach this Court against the remission
orders dated 10.08.2022. It was submitted that upholding the
constitutional values and protection of all citizens is the
responsibility of the State and there is a legitimate expectation that
the State conducts all its actions in accordance with constitutional
values. That the aforesaid petition has been filed in public interest
as the premature release of respondent Nos.3 to 13 cannot be
permitted since the convicts pose a danger to society. Tha t the
petitioners in the connected matters fulfil the wide ambit of the
expression "person aggrieved” as envisaged under PIL jurisdiction
since they are challenging the release of convicts who have
committed heinous and grave offences against society.
26.1. On the issue of locus standi of the petitioners to approach this
Court, the learned counsel relied on para 6 of A.R Antulay vs.
Ramdas Sriniwas Nayak, (1984) 2 SCC 500 (“A.R Antulay”) .
Further, it was submitted that in Sheonandan Paswan, this Court
relied on A. R. Antulay and held that if a citizen can set the
machinery of criminal law in motion, she is also entitled to oppose
the unwarranted withdrawal of prosecution in an offence against
society.
26.2. Learned counsel further placed reliance on the dictum of this
Court in Manohar Lal vs. Vinesh Anand, (2001) 5 SCC 407 ,
wherein it was held that the doctrine of locus standi is totally foreign
to criminal jurisprudence and that society cannot afford to have a
criminal escape his liability. Also, in Ratanlal vs. Prahlad Jat ,
(2017) 9 SCC 340, this Court held that a crime is not merely an
offence committed in relation to an individual but is also an offence
against society at large and it is the duty of the State to punish the
offender.
27. Although, we have recorded the detailed submissions made
on behalf of the respective parties, we do not think it is necessary
to answer the point regarding maintainability of the PILs in this case
inasmuch as one of the victims, namely, Bilkis Bano has also filed
a writ petition invoking Article 32 of the Constitution assailing the
orders of remission which we have held to be maintainable. The
consideration of that petition on its merits would suffice in the
instant case. Hence, we are of the view that the question of
maintainability of the PILs challenging the orders of remission in
the instant case would not call for an answer from us owing to the
aforesaid reason. As a result, we hold that consideration of the point
on the maintainability of the PILs has been rendered wholly
academic and not requiring an answer in this case. Therefore , the
question regarding maintainability of a PIL challenging orders of
remission is kept open to be considered in any other appropriate
case.
28. Before we consider point No.3 , we shall deal with the concept
of remission.
Remission : Scope & Ambit
29. Krishna Iyer, J. in Mohammad Giasuddin vs. State of A.P.,
(1997) 3 SCC 287 , quoted George Bernard Shaw the famous
satirist who said , “If you are to punish a man retributively, you must
injure him. If you are to reform him, you must improve him and, men
are not improved by injuries .” According to him, humanity today
views sentencing as a process of reshaping a person who has
deteriorated into criminality and the modern community has a
primary stake in the rehabilitation of the offender as a means of
social defence.
29.1. Further , quoting a British Buddhist -Christian Judge, it was
observed that in the context of karuna (compassion) and
punishment for karma (bad deeds) , ‘The two things are not
incompatible. While an accused is punished for what he has done, a
quality of what is sometimes called mercy, rather than an emotional
hate against the man for doing something harmful must be deserved.
This is what compassion is about.’
30. Learned senior counsel Sri Sidharth Luthra, drew our
attention to the principles covering grant of remission and
distinguished it from concepts, such as commutation, pardon, and
reprieve, with reference to a judgment of this Court in State (Govt.
of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121 ( “Prem Raj ”).
Articles 72 and 161 deal with clemency powers of the President of
India and the Governor of a State, and also include the power to
grant pardons, reprieves, respites or remissions of punishment or
to sus pend, remit or commute the sentences in certain cases. The
power under Article 72 inter alia extends to all cases where the
punishment or sentence is for an offence against any law relating
to a matter to which the executive power of the Union extends and
in all cases where the sentence is a sentence of death. Article 161
states that the Governme nt of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person co nvicted of
any offence against any law relating to a matter to which the
executive power of the State extends. It was observed in the said
judgment that the powers under Articles 72 and 161 of the
Constitution of India are absolute and cannot be fettered by any
statutory provision , such as, Sections 432, 433 or 433 -A of the
CrPC or by any prison rule.
30.1. It was further observed that a pardon is an act of grace,
proceeding from the power entrusted with the execution of the law,
which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed. It affects
both the punishment prescribed for the offence and the guilt of the
offender. But pardon has to be distinguished from “amnesty” which
is defined as a “general pardon of political prisoners; an act of
oblivion”. An amnesty would result in the release of the convict but
does not affect disqualification incurred, if any. ‘Reprieve’ means a
stay of execution of a sentence, a postponement of a capital
sentence. Respite means awarding a lesser sentence instead of the
penalty prescribed in view of the fact that the accused has had no
previous conviction. It is something like a release on probation for
good conduct under Section 360 of the CrPC. On the other hand,
remission is reduction of a sentence without changing its character.
In the case of a remission , the guilt of the offender is not affected,
nor is the sentence of the court, except in the sense that the person
concerned does not suffer incarceration for the entire period of the
sentence, but is relieved from serving out a part of it. Commutation
is change of a sentence to a lighter sentence of a different kind .
Section 432 empowers the appropriate Government to suspend or
remit sentences.
30.2. Further, a remission of sentence does not mean acquittal and
an aggrieved party has every right to vindicate himself or herself.
In this context, reliance was placed on Sarat Chandra Rabha vs.
Khagendranath Nath, AIR 1961 SC 334 (“Sarat Chandra
Rabha”) , wherein a Constitution Bench of this Court while
distinguishing between a pardon and a remission observed that an
order of remission does not wipe out the offence; it also does not
wipe out the conviction. All that it does is to have an effect on the
execution of t he sentence; though ordinarily a convicted person
would have to serve out the full sentence imposed by a court, he
need not do so with respect to that part of the sentence which has
been ordered to be remitted. An order of remission thus, does not
in any w ay interfere with the order of the court; it affects only the
execution of the sentence passed by the court and frees the
convicted person from his liability to undergo the full term of
imprisonment inflicted by the court even though the order of
conviction and sentence passed by the court still stands as it is.
The power to grant remission is an executive power and cannot have
the effect which the order of an appellate or revisional court would
have of reducing the sentence passed by the trial court and
substituting in its place the reduced sentence adjudged by t he
appellate or revisional court. According to Weater's Constitutional
Law, to cut short a sentence by an act of clemency is an exercise of
executive power which abridges the enforcement of the judgment
but does not alter it qua the judgment.
30.3. Reliance was placed on Mahender Sing h, to urge that a right
to be considered for remission, keeping in view the constitutional
safeguards of a convict under Articles 20 and 21 of the Constitution
of India, must be held to be a legal one. Such a legal right emanates
from not only the Prisons A ct but also from the Rules framed
thereunder. Although no convict can be said to have any
constitutional right for obtaining remission in his sentence, the
policy decision itself must be held to have conferred a right to be
considered therefor. Whether by reason of a statutory rule or
otherwise if a policy decision has been laid down, the persons who
come within the purview thereof are entitled to be treated equally,
vide State of Mysore vs. H. Srinivasmurthy, (1976) 1 SCC 817
(“H. Srinivasmurthy”) .
30.4. In Mahender Singh , this Court was considering the
correctness of a judgment of the Punjab and Haryana High Court
in which a circular /letter issued by the State of Haryana laying
down criteria for premature release of the prisoners had been
declared to be unconstitutional. In the above context, this Court
considered the right of the convict to be considered for remission
and not on what should be the criteria when the matter was taken
up for grant thereof.
30.5. Satish was pressed into service to contend that the length of
the sentence or the gravity of the original crime cannot be the sole
basis for refusing premature release. Any assessment regarding a
predilection to commit crime upon release must be based on
anteced ents as well as conduct of the prisoner while in jail, and not
merely on his age or apprehensions of the victims and witnesses. It
was observed that although, a convict cannot claim remission as a
matter of right, once a law has been made by the appropriat e
legislature, it is not open for the executive authorities to
surreptitiously subvert its mandate. It was further observed that
where the authorities are found to have failed to discharge their
statutory obligations despite judicial directions, it would then not
be inappropriate for a constitutional court while exercising its
powers of judicial review to assume such task onto itself and direct
compliance through a writ of mandamus. Considering that the
petitioners therein had served nearly two decades of incarceration
and had thus suffered the consequences of their actions, a balance
between individual and societal welfare was struck by granting the
petitioners therein conditional pr emature release, subject to their
continuing good conduct. In the said case, a direction was issued
to the State Government to release the prisoner s therein on
probation in terms of Section 2 of the U.P. Prisoners Release on
Probation Act, 1938 within a period of two weeks. The respondent
State was reserved liberty with the overriding condition that the
said direction could be reversed or recalled in favour of any party or
as per the petitioner therein.
31. The following judgments of this Court are apposite to the
concept of remission :
(a) In Maru Ram , a Constitution Bench considered the validity
of Section 433 -A of the CrPC. Krishna Iyer, J. speaking for the
Bench observed, “Ordinarily, where a sentence is for a definite
term, the calculus of remissions may benefit the prisoner to
instant release at the point where the subtraction results in
zero”. However, “when it comes to life imprisonment, where the
sentence is indeterminate and of an uncertain duration, the
result of subtraction from an uncertain quantity is still an
uncertain quantity and release of the prisoner cannot follow except
on some fiction of quantification of a sentence of uncertain
duration.
(i) Referring to Gopal Vinayak Godse vs. State of
Maharashtra, (1961) 3 SCR 440 , it was observed that the
said judgment is an authority for the proposition that a
sentence of imprisonment for life is one of “imprisonment for
the whole of the remaining period of the convicted person’s
natural life”, unless the said sentence is committed or remitted
by an appropriate authority under the relevant provisions of
law.
(ii) In Gopal Vinayak Godse , a distinction was drawn between
remission, sentence and life sentence. Remission limited a
time, helps computation but does not ipso jure operate as
release of the prisoner. But, when the sentence awarded by the
Judge is for a fixed term, the effect of remission s may be to
scale down the term to be endured and reduce it to nil, while
leaving the fact um and quantum of sentence intact. However,
when the sentence is a life sentence, remissions , quantified in
time, cannot reach a point of zero. Since Section 433 -A deals
only with life sentences, remissions cannot entitle a prisoner to
release. It was further observed that remission, in the case of
life imprisonment, ripens into a reduction of sentence of the
entire balance only when a final release order is made. If
this is not done, the prisoner will continue in custody. The
reason is, that life sentence is nothing less than life long
imprisonment and remission vests no right to release when the
sentence is life imprisonment. Nor is any vested right to
remission cancelled by compulsory fourteen years jail life as a
life sentence is a sentence for whole life.
(iii) Interpreting Section 433 -A it was observed that there are three
components in it which is in the nature of saving clause.
Firstly, the CrPC generally governs matters covered by it.
Secondly, if a special or local law exists covering the same area,
the latter law will be saved and will prevail, such as short
sentencing measures and remission scheme s promulgated by
various States. The third component is, if there is a specific
provision to the contrary then, whether it would override the
special or local law. It was held that Section 433 -A picks out
of a mass of imprisonment cases a specific class of life
imprisonment cases and subjects it explicitly to a
particularized treatment. Therefore, Section 433 -A applies in
preference to any special or local law. This is because Section
5 of the CrPC expressly declares that specific provision, if any,
to the contrary will prevail over any special or local law.
Therefore, Section 433 -A would prevail and escape exclusion of
Section 5. The Constitution Bench concluded that Section 433 -
A is supreme over the remission rules and short -sentencing
statutes made by various States. Section 433 -A does not permit
parole or other related release within a span of fourteen years.
(iv) It was further observed that criminology must include
victimology as a major component of its concerns. When a
murder or other grievous offence is committed the victims or
other aggrieved persons must receive reparation and social
responsibility of the criminal to restore the l oss or he al the
injury which is part of the punitive exercise which means the
length of the prison term is no reparation to the crippled or
bereaved.
(v) Fazal Ali, J . in his concurring judgment in Maru Ram observed
that crime is rightly described as an act of war fare against the
community touching new depths of lawlessness. According to
him, the object of imposing deterrent sentence is three -fold.
While holding that the deterrent form of punishment may
not be a most suitable or ideal form of punishment yet, the fact
remains that the deterrent punishment prevents occurrence of
offence . He further observed that Section 433 -A is actually
asocial piece of legislation which by one stroke seeks to
prevent dangerous criminals from repeating offences and on
the other hand protects the society from harm and distress
caused to innocent persons. While opining that where section
433-A applies, no question of reduction of sentence arises at
all unless the President of India or the Governor of a State
choose to exercise their wide powers under Article 72 or Article
161 of the Constitution respectively which also have to be
exercised according to sound legal principles as , any reduction
or modification in the deterrent punishment would , far from
reforming the criminal , be counter -productive.
(b) Mohinder Singh is a case which arose under Section 432 on
remission of sentence in which the difference between the terms
`bail’, ` furlough’ and ` parole’ having different connotations were
discussed. It was observed that furloughs are variously known as
temporary leaves, home visits or temporary community release and
are usually granted when a convict is suddenly faced with a severe
family crisis such as death or grave illness in the immediate family
and often the convict/inmate is accompanied by an officer as part
of the terms of temporary release of special leave which is granted
to a prisoner facing a family crisis. Parole is a release of a prisoner
temporarily for a special purpose or completely before the expiry of
the sentence or on promise of good behaviour. Conditional release
from imprisonment is to entitle a convict to serve remainder of his
term outside the confines of an institution on his satisfactorily
complying all terms and conditions provided in the parole order.
(c) In Poonam Latha vs. M.L. Wadhwan, (1987) 3 SCC 347
(“Poonam Latha”) , it was observed that parole is a professional
release from confinement but it is deemed to be part of
imprisonment. Release on parole is a wing of reformative process
and is expected to provide opportunity to the prisoner to transform
himself into a useful citizen. Parole is thus, a grant of partial liberty
or lessening of restrictions to a convict prisoner but release on
parole does not change the status of the prisoner. When a priso ner
is undergoing sentence and confined in jail or is on parole or
furlough his position is not similar to a convict who is on bail. This
is because a convict on bail is not entitled to the benefit of the
remission system. In other words, a prisoner is not eligible for
remission of sentence during the period he is on bail or his sentence
is temporarily suspended. Therefore, such a prisoner who is on bail
is not entitled to get remission earned during the period he is on
bail.
32. Apart from the constitutional provisions, the re are also
provisions of the CrPC which deal with remission of convicts.
Sections 432, 433, 433A and 435 of the CrPC are relevant and read
as under:
“432. Power to suspend or remit sentences .— (1) When
any person has been sentenced to punishment for an
offence, the appropriate Government may, at any time,
without conditions or upon any conditions which the
person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment
to which he has been sentenced.
(2) Whenever an application is made to the appropriate
Government for the suspension or remission of a sentence,
the appropriate Government may require the presiding
Judge of the Court before or by which the conviction was
had or confirmed, to state his op inion as to whether the
application should be granted or refused, together with his
reasons for such opinion and also to forward with the
statement of such opinion a certified copy of the record of
the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been
suspended or remitted is, in the opinion of the appropriate
Government, not fulfilled, the appropriate Government
may cancel the suspension or remission, and thereupon
the person in whose favour the sentenc e has been
suspended or remitted may, if at large, be arrested by any
police officer, without warrant and remanded to undergo
the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or
remitted under this section may be one to be fulfilled by
the person in whose favour the sentence is suspended or
remitted, or one independent of his will.
(5) The appropriate Government may, by general rules
or special orders, give directions as to the suspension of
sentences and the conditions on which petitions should be
presented and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the age of
eighteen years, no such petition by the person sentenced
or by any other person on his behalf shall be entertained,
unless the person sentenc ed is in jail, and —
(a) where such petition is made by the person sentenced,
it is presented through the officer in charge of the jail;
or
(b) where such petition is made by any other person, it
contains a declaration that the person sentenced is
in jail.
(6) The provisions of the above sub -sections shall also
apply to any order passed by a Criminal Court under any
section of this Code or of any other law which restricts the
liberty of any person or imposes any liability upon him or
his property.
(7) In this section and in Section 433, the expression
“appropriate Government” means, —
(a) in cases where the sentence is for an offence against,
or the order referred to in sub -section (6) is passed
under, any law relating to a matter to which the
executive power of the Union extends, the Central
Government;
(b) in other cases, the Government of the State within
which the offender is sentenced or the said order is
passed.
433. Power to commute sentence .— The appropriate
Government may, without the consent of the person
sentenced, commute —
(a) a sentence of death, for any other punishment
provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment
for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person
might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
433A. Restriction on powers of remission or
commutation in certain cases. — Notwithstanding
anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person
for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed on
a person h as been commuted under Section 433 into one
of imprisonment for life, such person shall not be released
from prison unless he had served at least fourteen years of
imprisonment.
435. State Government to act after consultation with
Central Government in certain cases .— (1) The powers
conferred by Sections 432 and 433 upon the State
Government to remit or commute a sentence, in any case
where the sentence is for an offence —
(a) which was investigated by the Delhi Special Police
Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation
into an offence under any Central Act other than this
Code, or
(b) which involved the misappropriation or destruction
of, or damage to, any property belonging to the
Central Government, or
(c) which was committed by a person in the service of
the Central Government while acting or purporting
to act in the discharge of his official duty,
shall not be exercised by the State Government except
after consultation with the Central Government.
(2) No order of suspension, remission or commutation
of sentences passed by the State Government in relation
to a person, who has been convicted of offences, some of
which relate to matters to which the executive power of the
Union extends, and who has bee n sentenced to separate
terms of imprisonment which are to run concurrently,
shall have effect unless an order for the suspension,
remission or commutation, as the case may be, of such
sentences has also been made by the Central Government
in relation to t he offences committed by such person with
regard to matters to which the executive power of the
Union extends.”
32.1. Sub-section (1) of Section 432 is an enabling provision which
states that when any person has been sentenced to punishment for
an offence, the appropriate Government may, at any time, without
conditions or upon any condition which the person sentenced
accepts, suspend the execution of his sentence or remit the whole
or any part of the punishmen t to which he has been sentenced. The
pertinent provision involved in this case is sub-section (2) which
deals with an application made to the appropriate Government for
the suspension or remission of a sentence and the appropriate
Government may require t he Presiding Judge of the Court before or
by which the conviction was had or confirmed, to state his opinion
as to , whether , the application should be granted or refused,
together with his reasons for such opinion and also to forward with
the statement of such opinion a certified copy of the record of the
trial or of such record thereof as exists. Sub -section (3) deals with
cancellation of the suspension or remission in the event of there
being any non -fulfilment of any condition imposed by the
appropriate Government whereupon the person in whose favour the
sentence has been suspended or remitted, may be arrested by the
police officer, without warrant and remanded to undergo the
unexpired portion of the sentence, if such a person is at large. Sub-
section (4) states that the condition on which a sentence is
suspended or remitted under this section may be one to be fulfilled
by the person in whose favour the sentence is suspended or
remitted, or one independent of his will. The appropriate
Government may, by general rules or special orders, give directions
as to the suspension of sentences and the conditions on which
petitions should be presented and dealt with vide sub-section (5) of
Section 432 of the CrPC . The proviso to sub -section (5) states that
in the case of any sentence (other than a sentence of fine) passed
on a male person above the age of eighteen years, no such pet ition
by the person sentenced or by any other person on his behalf shall
be entertained, unless the person sentenced is in jail, and it is
presented through the officer in -charge of the jail; or where such
petition is made by any other person, it contains a declaration that
the person sentenced is in jail. Sub-section (6) of Section 432 states
that the provisions of th is Section would apply to any order passed
by a Criminal Court under any section of the CrPC or of any other
law which restricts the liberty of any person or imposes any liability
upon him or his property.
32.2. The expression “appropriate Government” used in Section 432
as well as in Section 433, is defined in sub -section (7) of Section
432. It expresses that in cases where the sentence is for an offence
against, or the order referred to in sub -section (6) is passed under,
any law relating to a matter to which the executive power of the
Union extends, the Central Government; and in other cases, the
Govern ment of the State within which the offender is sentenced or
the said order is passed.
32.3. Section 433 -A is a restriction on the powers of remission or
commutation in certain cases. It begins with a non-obstante clause
and states that notwithstanding anything contained in Section 432,
where a sentence of imprisonment for life is imposed on conviction
of a person for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed on a person
has been commuted under Section 433 into one of imprisonment
for life, such person shall not be released from prison unless he had
served at least fourteen years of imprisonment.
32.4. Section 434 states that the powers conferred by Sections 432
and 433 upon the State Government may in case of sentences of
death also be exercised by the Central Government concurrently.
32.5. The necessity for the State Government to act in consultation
with the Central Government in certain cases is mandated in
Section 435. The powers conferred by Sections 432 and 433 upon
the State Government to remit or commute a sentence, in any case
where the sentence is for an offence (a) which was investigated by
the Delhi Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946, or by any other agency
empowered to make investigation into an offence under any Cen tral
Act other than the CrPC, or (b) which involved the misappropriation
or destruction of, or damage to, any property belonging to the
Central Government, or (c) which was committed by a person in the
service of the Central Government while acting or purporting to act
in the discharge of his official duty, shall not be exercised by the
State Government except after consultation with the Central
Government. Sub -section (2) of Section 435 states that no order of
suspension, remission or commutation of senten ces passed by the
State Government in relation to a person, who has been convicted
of offences, some of which relate to matters to which the executive
power of the Union extends, and who has been sentenced to
separate terms of imprisonment which are to run concurrently,
shall have effect unless an order for the suspension, remission or
commutation, as the case may be, of such sentences has also been
made by the Central Government in relation to the offences
committed by such person with regard to matters to which the
executive power of the Union extends.
With the above backdrop of provisions , we move to consider
Point No.3.
Point No.3 : Whether the Government of State of Gujarat
was competent to pass the impugned orders of
remission?
33. The point for consideration revolves around the definition of
the expression “appropriate Government”. In other words, whether
the first respondent – State of Gujarat was competent to pass the
order s of remission in the case of respondent Nos.3 to 13 herein is
the question. The meaning and import of the expression
“appropriate Government” ha s to be discerned from the judgments
of this Court in the light of sub -section (7) of Section 432 of the
33.1. The contentions raised by the learned counsel for the
petitioner in Writ Petition (Crl.) No.491 of 2022 as well as the
arguments of learned ASG appearing for Union of India as well as
State of Gujarat on this aspect need not be reiterated.
33.2. The expression “appropriate Government” no doubt has been
defined in sub -section (7) of Section 432 to mean that in cases
where the sentence is for an offence against, or the order referred
to in sub -section (6) is passed under, any law relating to a matter
to which the executive power of the Union extends, the Central
Government; in other cases, the Government of t he State within
which the offender is sentenced or the said order is passed. The
expression “appropriate Government” also finds place in sub -
section (1) of Section 432 which, as already discussed above, states
that when any person has been sentenced to punishment for an
offence, the appropriate Government may, at any time, without
conditions or upon any condition which the person sentenced
accep ts, suspend the execution of his sentence or remit the whole
or any part of the punishment to which he has been sentenced.
33.3. Sub-section (1) of Section 432 of the CrPC deals with a power
vested with the appropriate Government which is an enabling
power. The discretion vested with the appropriate Government has
to be exercised judiciously in an appropriate case and not to abuse
the same. However, when an application is made to the appropriate
Government for the suspension or remission of a sentence such as
in the instant case by a convict, the appropriate Government may
seek the opinion of the Presiding Judge of the Court before or by
which the conviction was had or confirmed and on considering the
reasons for such opinion, may consider the application for
remission vide sub-section (2) of Section 432 of the CrPC.
33.4. On a combined reading of sub -sections (1) and (2) of Section
432, it is apparent that the conviction and sentence of the Court
which had tried the case assumes significance and the appropriate
Government may have to seek the opinion of the Presiding Judge of
the Court before which the conviction took place, before passing an
order of remission. This is particularly so when an application is
filed by or on behalf of a convict seeking remission. Therefore,
logically the expression appropriate Government in cl ause (b) of
sub-section (7) of Section 432 also states that the Government of
the State within which the offender is sentenced or the said order
is passed which is the appropriate Government. The aforesaid
consistency is significant inasmuch as the intent of the Parliament
is, it is only the Government of the State within which the offender
was sentenced which is competent to consider an application for
remission and pass an order remitting the sentence of a convict.
This clearly means that the place of occurrence of the incident or
place of imprisonment of the convict are not relevant consideration s
and the same ha ve been excluded from the definition of the
expression appropriate Government in clause (b) of sub -section (7)
of Section 432. If the intention of the Parliament was that
irrespective of the Court before which the trial and conviction had
taken place, the order of remission can be considered by the
Government within whose territorial jurisdiction the offence has
been committed or the offender is imprisoned, the same would have
been indicated by the definition. On the contrary, the definition of
appropriate Government is otherwise. The intention of the
Parliament is that the Government of the State within which the
offender was tried and sentenced, is the appropriate Government to
consider either under sub -section (1) of Section 432 of the CrPC or
on an application made by the convict for remission of the sentence
under sub -section (2) of Section 432 of the CrPC . This places
emphasis on the place of trial and sentence of the offender rather
than the place or location where the crime was committed. Such an
interpretation would also inc lude a situation , such as in the present
case, where not only the investigation but also the trial of
respondents No.3 to 13 herein was transferred from the State of
Gujarat to the State of Maharashtra and particularly to the Special
Court at Mumbai. Thus, the aforesaid definition also takes within
its scope and ambit a circumstance wherein the trial is transferred
by this Court for reasons to be recorded and which is in the interest
of justice from one State to another State.
33.5. There may be various reasons for transferring of a trial from
a competent Court within the territorial jurisdiction of one State to
a Court of equivalent jurisdiction in another State, as has been done
in the instant case . But what is certain is that the transfer of the
trial to a court in another State would be a relevant consideration
while considering as to which State has the competency to pass an
order of remission . Thus, t he definition of appropriate Government
in sub -section (7) of Section 432 clearly indicates that the
Government of the State within which the offender is sentenced, is
the appropriate Government to pass an order of remission.
33.6. In almost all cases, the court before which the offender was
sentenced is located within the territory of a State Government
wherein the offence occurred and, therefore, in such a case, there
can be no further doubt about the meaning of the expression
appropriate Government. But according to us, even in a case where
the trial has been transferred by this Court from a court of
competent jurisdiction of a State to a court in another State, it is
still the Government of the State within which the offender was
sentenced which is the appropriate Government which has the
jurisdiction as well as competency to pass an order of remission
under Section 432 of the CrPC. Therefore, i t is not the Government
of the State within whose territory the offence occurred or the
convict is imprisoned which can assume the power of remission .
33.7. In this regard, the following judgments of this Court may be
relied upon :
(a) In Ratan Singh , on discussing Section 401 of the erstwhile
CrPC (corresponding to Section 432 of the present CrPC) it was
observed that the test to determine the appropriate Government is
to locate the State where the accused was convicted and sentenced
and the Government of that State would be the appropriate
Government within the meaning of Section 401 of the CrPC . In the
said case, it was observed that the accused was convicted and
sentenced in the State of Madhya Pradesh and though he was
discharging his sentence in a jail in Amritsar in the State of Punjab,
the ap propriate Government under section 401 (1) of the erstwhile
CrPC to exercise the discretion for remission of the sentence was the
State of Madhya Pradesh. It was further observed that even under
the new Code i.e. CrPC, 1973 as per sub -section (7) of Section 432
thereof, the phrase appropriate Government had the same meaning
as the latter provision had been bodily lifted from Section 402(3) of
the erstwhile CrPC. On a review of the case law and the statutory
provisions of the CrPC the following propositions were culled out:
“9. …(1) that a sentence of imprisonment for life does
not automatically expire at the end of 20 years including
the remissions, because the administrative rules framed
under the various Jail Manuals or under the Prisons Act
cannot supersede the statutory provisions of the Indian
Penal Code. A sentence of imprisonment for life means a
sentence for the entire life of the prisoner unless the
appropriate Government chooses to exercise its discretion
to remit either the whole or a part o f the sentence under
Section 401 of the Code of Criminal Procedure;
(2) that the appropriate Government has the
undoubted discretion to remit or refuse to remit the
sentence and where it refuses to remit the sentence no writ
can be issued directing the State Government to release
the prisoner.
(3) that the appropriate Government which is
empowered to grant remission under Section 401 of the
Code of Criminal Procedure is the Government of the State
where the prisoner has been convicted and sentenced, that
is to say, the transferor State and not the t ransferee State
where the prisoner may have been transferred at his
instance under the Transfer of Prisoners Act; and
(4) that where the transferee State feels that the
accused has completed a period of 20 years it has merely
to forward the request of the prisoner to the concerned
State Government, that is to say, the Government of the
State where the prisoner was convicted and sentenced and
even if this request is rejected by the State Government the
order of the government cannot be interfered with by a
High Court in its writ jurisdiction.”
(b) The aforesaid decision was reiterated in Hanumant Dass. In
the said case, the incident had occurred in Dharmshala and when
the matter was pending before the Sessions Court, Dharmshala in
Himachal Pradesh at the instance of the complainant, on an
application moved before this Court, the case was transferred
from Himachal Pradesh to the Sessions Court at Gurdaspur in
Punjab.
(c) Insofar as clemency power of a Governor of a State under
Article 161 of the Constitution to grant remission to prisoners
convicted by courts outside the State but undergoing sentences in
jails in the State is concerned, this Court in M.T. Khan observed
that the appropriate government on whose advice the Governor has
to act while granting remission to such a prisoner was to be
decided on the basis of the aid and advice of the Council of
Ministers of the State which had convicted the accused and not the
State where the accused/convict is t ransferred to be lodged in the
jail. In this case it was held that since the judgment of conviction
had been passed in the States of Madhya Pradesh and
Maharashtra and the convict was lodged in the State of Andhra
Pradesh, the appropriate Governments were the States of Madhya
Pradesh and Maharashtra even under Article 161 of the
Constitution. Hence, the appeals filed by the Government of
Andhra Pradesh were allowed.
(d) V. Sriharan is a judgment of a Constitution Bench of this
Court wherein the Government of Tamil Nadu had proposed to
remit the sentence of life imprisonment to release seven convicts
who were convicted in the Rajiv Gandhi assassination case – State ,
through Superintendent of Police, CBI vs. Nalini, (1999) 5 SCC
253 (“Nalini”) . While discussing the phrase “appropriate
Government ”, it was observed that barring cases falling under
Section 432(7)(a), in all other cases where the offender is sentenced
or the sentence or order is passed within the territorial jurisdiction
of the State co ncerned, that State Government would be the
appropriate Government. Following the earlier decisions it was
observed that even if an offence is committed in State -A, but, the
trial takes place and the sentence is passed in State -B, it is the
latter State which shall be the appropriate Government.
33.8. In our view, on a plain reading of sub -section (7) of Section
432 of the CrPC and considering the judgment s of this Court, it is
the State of Maharashtra, which had the jurisdiction to consider
the application for remission vis-à-vis respondent Nos.3 to 13
herein as they were sentenced by the Special Court, Mumbai .
Hence the applications filed by respondent Nos. 4 to 13 seeking
remission had to be simply rejected by the State of Gujarat owing
to lack of jurisdiction to consider them. This is because
Government of Gujarat is not the appropriate Government within
the meaning of the aforesaid provision. The High Court of Gujarat
was therefore right in its order dated 17.07.2019.
33.9. When an authority does not have the jurisdiction to deal with
a matter or it is not within the powers of the authority i.e. the State
of Gujarat in the instant case, to be the appropriate Government
to pass orders of remission under Section 432 of the CrPC, the
orders of remission would have no l egs to stand. On the aspect of
jurisdiction and nullity of orders passed by an authority, the
decision of the House of Lords in Anisminic v s. Foreign
Compensation Commission, (1969) 2 WLR 163 : (1969) 1 All
ER 208 (“Anisminic”) , is of significance and the same can be cited
by way of analogy . The House of Lords in the said case held that
the Foreign Compensation Commission had committed an error
which was a jurisdictional error as its decision was based on a
matter which it had no right to take into account and so its decision
was a nullity and subject to judicial review. Although in
Anisminic , the scope and ambit of the concept of “jurisdictional
error” or “error of jurisdiction ” was very much extended , and of a
very broad connotation , in the instant case we are primarily dealing
with a narrow er concept i.e. when an authority , which is the
Government of State of Gujarat in the instant case , was lacking
jurisdiction to consider the applications for remission . Just as an
order passed by a Court without jurisdiction is a nullity, in the
same vein, an order passed or action taken by an authority lacking
in jurisdiction is a nullity and is non est in the eye of law.
33.10. On that short ground alone the orders of remission
have to be quashed. This aspect of competency of the Government
of State of Gujarat to pass the impugned orders of remission goes
to the root of the matter and the impugned orders of remission are
lacking in competency and hence a nullity. The writ petition filed
by the victim would have to succeed on this reasoning. But the
matter does not rest at that .
34. Learned ASG appearing for respondent Nos.1 and 2, has
placed strong reliance on the order of this Court dated 13.05.2022
to contend that in view of the directions issued by this Court in Writ
Petition No.135 of 2022, respondent No.1 – State of Gujarat had to
consider the applications for remissi on filed by respondents No.3 to
13 herein. Further, the consideration had to be made as per the
1992 Policy of Remission of the State of Gujarat. Hence, the
appropriate Government in the case of respondent Nos.3 to 13 was
the Government of Gujarat in terms of the order of this Court dated
13.05.2022. It was further contended that the offences had also
occurred within the State of Gujarat. Therefore, the first respondent
– State of Gujarat had no option but to consider the applications
filed by respondent Nos.3 to 13 herein and pass the orders dated
10.08.2022 granting remission to them.
35. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022 has countered the above submission contending
that one of the convicts -Radheshyam Bhagwandas Shah ,
respondent No.3 herein , had initially approached the High Court of
Gujarat by filing Criminal Application No.4573 of 2019 for a
direction to consider his application for remission by the State of
Gujarat. By order dated 17.07.2019 the High Court disposed of
Criminal Application No.4573 of 2019 by observing that he should
approach the appropriate Government being the State of
Maharashtra. His second such application before the Gujarat High
Court was also dismissed vide order dated 13.03.2020. That when
the said prisoner filed Writ Petition (Crl.) No.135 of 2022 before this
Court, he did not disclose the following facts:
(i) that within fourteen days of the order dated
17.07.2019, he had approached the Government of
Maharashtra vide application dated 01.08.2019 ;
(ii) that the CBI had given a negative recommendation
vide its letter dated 14.08.2019;
(iii) that t he Special Judge (CBI), Mumbai had given a
negative recommendation vide his letter dated
(iv) that the Superintendent of Police, Dahod , Gujarat
had given a negative recommendation vide his letter
dated 03.02.2020; and,
(v) that the District Magistrate, Dahod , Gujarat had
given a negative recommendation vide his letter
dated 19.02.2020.
35.1. Further, the writ petitioner also made a misleading statement
by referring to the order dated 05.08.2013 of the Bombay High
Court in juxtaposition to the order of the Gujarat High Court dated
17.07.2019 to contend that there was a divergent opinion between
the two High Courts, which aspect constrained him to file Writ
Petition (Crl.) No.135 of 2022 before this Court . That the order
dated 05.08.2013 passed by the Bombay High Court was dealing
with transfer of the convicts in Maharashtra jail to their parent
State (State of Gujarat) that too , in the year 2013, when the issue
of remission did not arise at all. But t he said writ petitioner
projected as if the two High Courts ha d contradicted themselves in
their orders and, therefore, he was constrained to file the writ
petition invoking the jurisdiction of this Court under Article 32 of
the Constitution.
35.2. It was contended that on account of the suppression of facts
as well as misleading this Court with erroneous facts, the order
dated 13.05.2022 is vitiated by fraud and is hence a nullity and the
same cannot be binding on the parties to the said order or to the
petitioner Bilkis Bano who, in any case , was not arrayed as a party
in the said writ petition.
36. It is necessary to highlight the salient aspects of the order
passed by this Court in the case of Radheshyam Bhagwandas
Shah dated 13.05.2022 in Writ Petition (Crl.) No.135 of 2022. That
was a petition filed by one of the convicts , respondent No.3 herein ,
seeking a direction to consider his application for premature release
under the policy dated 09.07. 1992 of the State of Gujarat which
was existing at the time of his conviction. The relevant pleadings in
the said writ petition are extracted as under:
“Question of Law:
A. Whether the policy dated 9.7.92, which was existing at
the time of the conviction will prevail for considering
the case of the petitioner for premature release?
B. Whether in view of ‘State of Haryana Vs. Jagdish,
(2010) 4 SCC 216’, a policy which is more liberal and
prevailing would be given preference as compared to
the policy which is sought to be made applicable at the
time of consideration of the cases of premature
release?
x x x
x x x
That at this juncture it would be pertinent to mention
herein that one of the co -accused Ramesh Rupabhai
had approached the Bombay High Court by way of Crl.
W.P. No.305/2013. In the said order, the Bombay
High Court clarified that the undertrials in this case
were lodged in Maharashtra Jail only because of the
fact that at that time the Trial was pending in the State
of Maharashtra (transferred from Gujarat to
Maharashtra by the Supreme Court). The High Court
further clarified that once the Trial has concluded and
the prisoner has been convicted, the appropriate
prison would be the State of Gujarat and acco rdingly,
the said prisoners were transferred to the State of
Gujarat from the State of Maharashtra ...
At this juncture, the petitioner had approached the
Gujarat High Court on the ground that despite he
having undergone more than actual sentence of 14
years, his case was not being considered by the
respondent/authorities for premature release. The
Gujarat High Court vide its order dated 17.7.19 with
great respect took a completely a diametrically opposite
view as that of Bombay High Court and erroneously
held that since the petitioner’s case was tried in the
State of Maharashtra, therefore, his case for premature
release has to be considered by the State of
Maharashtra and not by the State of Gujarat.
Hence the instant Writ Petition under Article 32 of the
Constitution issuing a writ of Mandamus or any other
similar direction to the State of Gujarat praying inter
alia that the case of the petitioner may be considered
as per the policy dated 9.7.92 (i.e. policy existing at the
time of conviction of the petitioner) in the light of
settled decision in “State of Haryana Vs. Jagdish,
x x x
In the light of the above -mentioned facts and
circumstances, the petitioner through this instant writ
petition prays before this Hon’ble Court as under:
A. Issue a writ, order or direction in the nature of
Mandamus to the Respondent/State of Gujarat to
consider the case of the petitioner for premature
release under the policy dated 9.7.92 i.e. the policy
which was existing at the time of conviction.
B. Or in the alternative, issue a writ, order or direction
in the nature of Mandamus to the
respondent/Union of India to consider the case of
the petitioner in light of “UOI Vs. V. Sriharan, (2016)
7 SCC 1. ” and
C. Pass any such further Order(s)/direction(s) as this
Hon’ble Court may deem fit and proper in the facts
and circumstances of the case.”
36.1. The aforesaid pleadings do not indicate that State of Gujarat
had no jurisdiction to consider his application for remission. Also,
there was no pleading that he had filed any application before the
Government of Gujarat. Thirdly, there is no mention that the policy
of 09.07.1992 had been cancelled. Moreover, the said policy was
not at all applicable as the writ petitioner was convicted in
Maharashtra State and therefore, Government of Gujarat was not
the appropriate Government.
36.2. On the above basis , this Court passed the order dated
13.05.2022 , the relevant portion of which reads as under:
“6. The present petitioner filed his petition for pre -mature
release under Sections 433 and 433A of the Code of
Criminal Procedure, 1973 (hereinafter being referred to as
the “CrPC”) stating that he had undergone more than 15
years 4 months of custody but his petition filed in the High
Court of Gujarat came to be dismissed taking note of
Section 432(7) CrPC and placing reliance on the judgment
of this Court in Union of India vs. V. Sriharan alias
Murugan and Others , (2016) 7 SCC 1 , on the premise
that since the trial has been concluded in the State of
Maharashtra, the application for pre -mature release has
to be filed in the State of Maharashtra and not in the State
of Gujarat, as prayed by the petitioner by judgment
impugned dated 17th July 2019.
xxx xxx xxx
10. Learned counsel for the respondents has placed
reliance on the judgment of this Court in Union of India
vs. V. Sridharan alias Murugan and Others (supra) and
submits that since the trial has been concluded in the
State of Maharashtra, taking assistance of Section 432(7)
CrPC, the expression ‘appropriate government as referred
to under Section 433 CrPC in the instant case , would be
the State of Maharashtra and accordingly no error has
been committed by the High Court in the order impugned.
11. In our considered view, the submission made by
learned counsel for the respondents is not sustainable for
the reason that the crime in the instant case was
admittedly committed in the State of Gujarat and
ordinarily, the trial was to be concluded in th e same State
and in terms of Section 432(7) CrPC, the appropriate
Government in the ordinary course would be the State of
Gujarat but the instant case was transferred in exceptional
circumstances by this Court for limited purpose for trial
and disposal to the neighbouring State (State of
Maharashtra) by an order dated 06th August, 2004 but
after the conclusion of trial and the prisoner being
convicted, stood transferred to the State where the crime
was committed remain the appropriate Government for the
purpose of Section 432(7) CrPC.
12. Indisputedly, in the instant case, the crime was
committed in the State of Gujarat which is the appropriate
Government competent to examine the application filed for
pre-mature release and that is the reason for which the
High Court of Bombay in Criminal Wr it Petition No.305 of
2013 filed at the instance of co -accused Ramesh Rupabhai
under its Order dated 5th August, 2013 declined his
request to consider the application for pre -mature release
and left the application to be examined according to the
policy applicable in the State of Gujarat by the concerned
authorities.
13. The judgment on which the learned counsel for the
respondents has placed reliance may not be of any
assistance for the reason that under Section 432(7) CrPC,
the appropriate Government can be either the Central or
the State Government but there cannot be a concurrent
jurisdiction of two State Governments under Section
14. In the instant case, once the crime was committed in
the State of Gujarat, after the trial been concluded and
judgment of conviction came to be passed, all further
proceedings have to be considered including remission or
pre-mature release, as the case may be, in terms of the
policy which is applicable in the State of Gujarat where the
crime was committed and not the State where the trial
stands transferred and concluded for exceptional reasons
under the orders of this Court.
15. Consequently, the petition is allowed. The judgment
impugned dated 17th July, 2019 is set aside.
16. The respondents are directed to consider the
application of the petitioner for pre -mature release in
terms of its policy dated 9th July, 1992 which is applicable
on the date of conviction and may be decided within a
period of two months. If any adverse order is passed, the
petitioner is at liberty to seek remedy available to him
under the law.”
36.3. The following aspects are noted by this Court in the order
dated 13.05.2022:
(i) that the crime was committed in the State of Gujarat
but this Court in Transfer Petition (Crl.) No.192 of
2004 had considered it appropriate to transfer
Sessions Case No.161 of 2004 pending before the
learned Additional Sessions Judge, Dahod,
Ahmedabad to the competent court in Mumbai for
trial and disposal by order dated 06.08.2004.
(ii) that t he trial court, Mumbai in Sessions Case No.634
of 2004, on completion of the trial held the said
respondent as well as the other accused guilty and
sentenced them to undergo rigorous imprisonment for
life by judgment and order dated 21. 01.2008.
(iii) that one of the co -accused Ramesh Rupabhai had
approached the Bombay High Court by filing Writ
Petition (Crl.) No.305 of 20 13 seeking premature
release but his application was dismissed by order
05.08.2013 on the premise that the crime was
committed in the state of Gujarat and his trial was
transferred to the competent court in Maharashtra
and once the trial had concluded and sentence has
been passed, the appropriate Government would be
the State of Gujarat and accordingly, the application
filed by the said co-accused for premature release was
to be examined as per the policy applicable in the
State of Gujarat.
(iv) that the judgment on which learned counsel for the
State of Gujarat had placed reliance ( V. Sriharan )
was not of any assistance for the reason that under
Section 432 (7) of the CrPC, the appropriate
Government can be either Central or State
Government but there cannot be a concurrent
jurisdiction of two State Governments under the said
provision.
(v) that once the crime was committed in the State of
Gujarat, after the trial has been concluded and the
judgment of conviction came to be passed, all further
proceedings had to be considered including remission
or pre -mature release, as the case may be, in t erms of
the policy which is applicable in the State of Gujarat
where the crime was committed and not the State
where the trial stood transferred and concluded for
exceptional reasons under the order of this Court.
(vi) Consequently, the writ petition was allowed . Further
even in the absence of there being any challenge , the
order dated 17.07.2019 passed by the Gujarat High
Court in a petition filed by the same petitioner
(respondent No.3) under Article 226 of the
Constitution was set aside by this Court in the writ
petition filed by him under Article 32 of the
Constitution.
(vii) Further, it was not brought to the notice of this Court
that the policy dated 09.07.1992 had been cancelled
and was no more effective. In the absence of the same,
direction was issued to the State of Gujarat to
consider the case of the petitioner therein f or pre -
mature release in terms of the said policy within a
period of two months.
36.4. Our inferences on the Order of this Court dated 13.05.2022
passed on the aforesaid writ petition are as under:
(i) that the convict who approached this Court, namely,
Radheshyam Bhagwandas Shah respondent No.3
herein had stated that he had undergone about 15
years 4 months of custody ;
(ii) that respondent No.3 herein had not stated that his
writ petition filed in the High Court of Gujarat had
been dismissed by taking note of Section 432 (7) of the
CrPC and on the basis of the decision in V. Sriharan
as the trial had been concluded in the State of
Maharashtra ;
(iii) that respondent No.3 had not stated that the
application for premature release had been filed by
him in the State of Maharashtra and not in the State
of Gujarat as directed by the judgment of the Gujarat
High Court dated 17.07.2019 ;
(iv) Respondent No.3 herein who had filed the writ petition
had not disclosed that he had acted upon the order
dated 17.07.2019 passed by the Gujarat High Court
inasmuch as –
(a) he had approached the Government of
Maharashtra vide application dated 01.08.2019;
(b) the CBI had given a negative recommendation
vide its letter dated 14.08.2019;
(c) the Special Judge (CBI), Mumbai had given a
negative recommendation vide his letter dated
(d) the Superintendent of Police, Dahod , Gujarat had
given a negative recommendation vide his letter
dated 03.02.2020; and,
(e) the District Magistrate, Dahod , Gujarat had given
a negative recommendation vide his letter dated
19.02.2020.
(v) that the respondent No.3 had not assailed the order
dated 17.07.2019 passed by the Gujarat High Court
as there is a bar in law to assail an order passed by
High Court under Article 226, under Article 32 of the
Constitution.
(vi) Interestingly, in the writ petition, the respondent State
of Gujarat placed reliance on the judgment in V.
Sriharan and contended that the trial had been
concluded in the State of Maharashtra and therefore
the expression appropriate government under section
432 of the CrPC would be the State of Maharashtra
and that no error had been committed by the High
Court in its order dated 17.07.2019 .
(vii) Strangely, this Court held that the aforesaid
submission on behalf of the State of Gujarat was not
sustainable as the crime had been committed in the
State of Gujarat and “ordinarily , the trial was to be
concluded in the same State and in terms of Section
432 (7) of the Code of Criminal Procedure, the
appropriate Government in the ordinary course would
be the State of Gujarat but the instant case, was
transfer red in exceptional circumstances by this Court
for limited purpose for trial and disposal to the
neighbouring State (State of Maharashtra) by an order
dated 06.08.2004 but after the conclusion of trial and
the prisoner being convicted, stood transferred to the
State where the crime was committed remain the
appropriate Government for the purpose of Section
432(7) Code of Criminal Procedure. ” This portion of the
order of this Court is contrary to the judgments of this
Court discussed above. This implies that the said
order is per se per incuriam .
(viii) This Court went on to hold that the High Court of
Bombay had declined to interfere in Criminal Writ
Petition No.305 of 2013 filed by the co -accused
Ramesh Rupabhai by its order dated 05.08.2013
without realising what the prayer in the said writ
petition was , which was filed in the year 2013 , as at
that point of time, the issue of remission had not
arisen at all . The Bombay High Court had declined to
entertain the Writ Petition filed by one of the convicts
by holding to consider his plea for transfer to a jail in
State of Gujarat .
(ix) Interestingly, no review petition was filed against the
order of this Court dated 13.05.2022 by the State of
Gujarat for seeking a review of the said order but the
victim – petitioner in Writ Petition (Crl.) No.491 of
2022 – had filed a review petition which has been
rejected by this Court .
(x) that although the respondent No.3 who approached
this Court as well as the State of Gujarat had termed
the order of the Gujarat High Court dated 17.07.2019
as “impugned Order”, the said order was not at all
impugned or assailed in the proceedings before this
Court. W hat was filed by the convict i.e., respondent
No.3 before this Court was a writ petition under
Article 32 of the Constitution seeking a direction to
the State of Gujarat to consider his remission
application ;
(xi) More significantly, while a reference has been made to
Criminal Writ Petition No.305 of 2013 filed by one of
the co -accused Ramesh Rupabhai in the year 2013
before the Bombay High Court seeking a direction for
transfer of the convicts from Maharashtra Jail to
Gujarat Jail , the reference to the Order of the Gujarat
High Court dated 17.07.2019 dismissing the writ
petition filed by respondent No.3 herein directing him
to approach the Maharashtra State for remission was
only in the context of the said order being
“diametrically opposite” to the view of the Bombay
High Court without explaining and by suppression of
the backgrounds under which the two writ petitions
were filed before the respective High Court .
(xii) In fact , there was no pleading or prayer for seeking
setting aside of the Gujarat High Court Order dated
17.07.2019 nor was there any challenge to the said
Order. That said Order had attained final ity as no
Special Leave Petition as against the said Order was
filed by the writ petitioner , Radheshyam Bhagwan das
Shah respondent No.3 herein before this Court ; rather
he had acted upon it . Curiously , in the writ petition
filed under Article 32 of the Constitution, the Order
dated 17 .07.2019 has been set aside even in the
absence of there being any prayer thereto nor any
discussion of the same .
(xiii) Further, contrary to Section 432 (7) and the
judgements of the Constitution Bench and other
benches of this Court, a writ of mandamus was issued
to the State of Gujarat to consider the prayer of the
writ petitioner for premature release in terms of its
policy dated 09.07. 1992. It was not brought to the
notice of this Court by any party that the said policy
had been cancelled and had been substituted by
another policy in the year 2014. What was the effect
of cancellation of the policy dated 09.07. 1992 was not
brought to the notice of this Court either by the writ
petitioner or by the State of Gujarat.
(xiv) In Sangeet & Another v s. State of Haryana , (2013)
2 SCC 452 , this Court speaking through Lokur, J.,
observed that a convict undergoing a sentence does
not have right to get a remission of sentence but he
certainly does have a right to have his case considered
for the grant of remission. The term of sentence
spann ing the life of the convict can be curtailed by the
appropriate Government for good and valid reasons in
exercise of its powers under Section 432 of the CrPC.
The said Section provides for some procedural and
substantive checks on the arbitrary exercise of this
power. While observing that there is no decision of
this Court detailing the procedure to be followed for
the exercise of power under Section 43 2 of the CrPC,
it was stated that sub -section (2) to sub -section (5) of
Section 432 of the CrPC lay down the basic procedure,
which is making of an application to the appropriate
Government for the suspension or remission of a
sentence, either by the convict or someone on his
behalf. Thus, the representation has to be made to
the appropriate Government in terms of the provisions
under Section 432 of the CrPC. It was further
observed that the exercise of power by the appropriate
Government under sub -section (1) of Section 432 of
the CrPC cannot be suo motu for the simple reason
that this sub -section is only an enabling provision. In
other words, the appropriate Government is enabled
to “override” a judicially pronounced sentence, subject
to fulfillment of certain conditions. Those conditions
are found either in the jail manual or in statutory
rules. Therefore, sub -section (1) of Section 432 of the
CrPC cannot be read to enable the appropriate
Government to “further override” the judicial
pronouncement over and above what is permitted by
the jail manual or the statutory rules. On such an
application being made, the appropriate Government
is require d to approach the Presiding Judge of the
Court before or by which the conviction wa s made or
confirmed to opine (with reasons) whether the
application should be granted or refused. Thereafter,
the appropriate Government may take a decision on
the remission application and pass orders granting
remission subject to some conditions, or refusing
remission. There has to be an application of mind to
the issue of grant of remission and the power of
remission cannot be exercised arbitrarily. It was
further observed that a convict undergoing life
imprisonment is expected to remain in custody till the
end of his life, subject to any remission granted by the
appropriate Government under Section 432 of the
CrPC which in turn is subject to the procedural
checks in that Section and the substantive check in
Section 433 -A of the CrPC.
Pursuant to the judgment in Sangeet , the
Government of India vide its communication dated
01.02.2013 made to all the Home Secretaries of the
States and Union Territories, stated that there is a
need to relook at the manner in which remissions of
sentence are made with reference to Section 432 read
with Section 433 -A of the CrPC and hence requested
that there should be scrupulous compliance of the
aforesaid provisions and not to grant remission in a
wholesale manner. Thereafter, on 08.05.2013, the
Home Department, Government of Gujarat issued a
Circular referring to the decision of this Court dated
20.11.2012 in Sangeet and in order to implement the
same and also taking note of the communication of
the Government of India dated 01.02.2013, the
Circular dated 09.07.1992 was cancelled in following
manner:
“… Therefore, the provisions of circular
No.JLK/3390/CM/16/part/2/J dated
09.07.1992 of the Home Department
hereinabove referred to in Srl. No.1, hereby
stand cancelled.”
Thereafter, on 23.01.2014, the State Government
constituted a Committee headed by the Additional
Chief Secretary (Home) for considering the policy and
guidelines to be followed for the purpose of remission
and pre -mature release of the prisoners. After careful
consideration, the State Government issued
guidelines/policy for consideration of cases of
remission and premature release of the prisoners. In
the said policy, it was categorically mentioned that
“the prisoners who are convicted for the crimes” as
mentioned in Annexure -I, shall not be considered for
remission. Annexure -I contained the classes of
prisoners who shall not be granted state remission as
well as for premature release. Clause IV (a) and (d)
read as follows:
(a) A prisoner or prisoners sentenced for group
murder of two or more persons.
x x x
(d) Prisoners convicted for murder with rape or gang
rape.
(xv) Realising that respondent Nos.3 to 13 would not be
released under the Remission Policy dated
23.01.2014, which had substituted the earlier
Policy dated 09.07.1992, which had been cancelled,
the writ petition was filed by respondent No.3
herein before this Court seeking a specific direction
to the State of Gujarat to consider his case as per
the Policy dated 09.07.1992 which had by then
been cancelled and substituted by another Policy
dated 23.01.2014.
(xvi) What is the effect of cancellation of the said policy
by the State of Gujarat in light of the judgement of
this Court in Sangeet and the communication of
Union of India issued to each of the states including
the State of Gujarat ? Does it mean that the said
policy of 09.07. 1992 had stood cancelled and
therefore got effaced and erased from the statute
book and substituted by a new policy of 2014 which
had to be considered. There was no pleading or
discussion to that effect.
36.5 Thus, by suppressing material aspects and by misleading this
Court, a direction was sought and issued to the respondent State
of Gujarat to consider the premature release or remission of the writ
petitioner , i.e., respondent No.3 on the basis of the policy dated
09.07.1992 .
37. More pertinently , respondent No.3 had suppressed the fact
that on the basis of the judgment of the Gujarat High Court in the
writ petition that he had filed, the convict had acted upon it and
had made an application to the State of Maharashtra for remission
on 01.08.2019 and the said application was being processed
inasmuch as the stakeholders had given their opinion on the
application , such as , the Presiding Judge of the court which had
convicted the accused ; the Director - CBI as well as the Director
General and Inspector General of Po lice, State of Maharashtra wh o
were all unanimous in their opinion inasmuch as they had all
negatived grant of remission to the convict – Radhe shyam Bhagwan
Das. Suppressing all this, the writ petition was filed by respondent
No.3 invoking Article 32 of the Constitution and the same was
allowed by also setting aside the Order of the Gujarat High Court
dated 17.07.2019 and thereby setting at naught the steps taken
pursuant to the said Order of the Gujarat High Court .
38. At this stage, we may point out that if respondent No.3 had
felt aggrieved by the order of the Gujarat High Court dated
17.07.2019, it was open to him to have challenged the said order
before this Court by filing a special leave petition, but he did not do
so. Rather, he complied with the order of the Gujarat High Court by
filing remission application dated 01.08.2019 before the
Government of Maharashtra where , not only the process for
consideration of the remission prayer was initiated, but opinions of
various authorities were also obtained. When the opinions were
found to be negative, respondent No.3 filed Writ Petition (Crl.)
No.135 of 2022 before this Court seeking a direct ion to the State of
Gujarat to consider his remission application suppressing the
above material facts. This he could not have done, thereby
misrepresenting and suppressing relevant facts, thus playing fraud
on th is Court.
39. We have no hesitation in holding that neither the order of the
Gujarat High Court dated 17.07.2019 could have been challenged
by respondent No.3 or for that matter by anybody else before this
Court in a writ proceeding under Article 32 of the Constitu tion of
India nor the said order of the High Court could have been set aside
in a proceeding under Article 32 thereof. This proposition of law has
been settled long ago by a nine -Judge bench decision of this Court
in Naresh Sh ridhar Mirajkar vs. State of M aharashtra, AIR
1967 SC 1 , which is binding on us.
39.1. When an oral order of the learned Judge passed in the original
suit of the Bombay High Court was challenged by the petition er
therein by way of a writ petition under Article 226 of the
Constitution of India before the Bombay High Court, the writ
petition was dismissed by a division bench of the Bombay High
Court on the ground that the impugned order was a judicial order
of the H igh Court and was not amenable to writ jurisdiction under
Article 226. Thereafter, the petitioner therein moved this Court
under Article 32 of the Constitution of India for enforcement of his
fundamental rights under Article 19(1)(a) and (g) of the Constitution
of India. This Court observed that the impugned order was passed
by the learned Judge in the course of trial of a suit before him after
hearing the parties. This Court took the view that the restraint order
was passed to prohibit publication of evidence in the media during
the progress of the trial and could not be construed as imposing a
permanent ban on the publication of the said evidence.
39.2. The question which fell for consideration before this Court
was whether a judicial order passed by the High Court prohibiting
the publication in newspapers of evidence given by a witness
pending the hearing of the suit, was amenable to be corrected by a
Writ of Certiorari of this Court under Article 32 of the Constitution
of India. In the above context, this Court first held that a judicial
verdict pronounced by a court in a matter brought before it for its
decision cannot be said to affect the fundamental rights of citizens
under Article 19(1) of the Constitution of India. Thereafter, this
Court proceeded to hold that if any judicial order was sought to be
attacked on the ground that it was inconsistent with Article 14 or
any other fundamental rights, the p roper remedy to challenge such
an order would be by way of an appeal or revision as may be
provided by law. It would not be open to the aggrieved person to
invoke the jurisdiction of this Court under Article 32 of the
Constitution and to contend that a Writ of Certiorari should be
issued to quash such an order. This Court observed that it would
be inappropriate to allow the petitioners to raise the question about
the jurisdiction of the High Court to pass the impugned o rder in a
proceeding under Article 32. Rejecting the argument of the
petitioners, this Court held that judicial orders passed by High
Courts in or in relation to proceedings pending before the High
Courts are not amenable to be corrected by this Court exer cising
jurisdiction under Article 32 of the Constitution of India. This being
the law of the land, it is binding on all the courts including benches
of lesser coram of this Court.
40. Before proceeding further, it may also be mentioned that it
was only respondent No.3 who had approached this Court by filing
a writ petition under Article 32 of the Constitution of India being
Writ Petition (Crl.) No.135 of 2022, seeking a direction to the State
of Gujarat to consider his pre -mature release. None of the other
convicts, i.e. respondent Nos.4 to 13 had approached this Court or
any High Court seeking such a relief. Therefore, in so far these
respondents are concerned, there was no directio n of this Court or
any court to the State of Gujarat to consider their pre -mature
release.
41. We are of the considered view that the writ proceedings before
this Court is pursuant to suppression and misleading of this Court
and a result of suppre ssio veri suggestio falsi . Hence, in our view,
the said order was obtained by fraud played on this Court and
hence , is a nullity and non est in law . In view of the aforesaid
discussion, we hold that consequently the order dated 13.05.2022
passed by this Court in Writ Petition (Crl.) No.135 of 2022 in the
case of Radheshyam Bhagwandas Shah is hit by fraud and is a
nullity and non est in the eye of law and therefore cannot be given
effect to and hence, all proceedings pursuant to the said order are
vitiated.
42. It is trite that fra ud vitiates everything. It is a settled
proposition of law that fraud avoids all judicial acts. In S.P.
Chengalvaraya Naidu v s. Jagannath (Dead) through LRs ,
(1994) 1 SCC 1 (“S.P. Chengalvaraya Naidu”) , it has been
observed that “ fraud avoids all judicial acts , ecclesiastical or
temporal.” Further, “ no judgment of a court, no order of a minister
would be allowed to stand if it has been obtained by fraud. Fraud
unravels everything” vide Lazarus Estates Ltd. vs. Beasley ,
(1956) 1 ALL ER 341 (“Lazarus Estates Ltd.”) .
43. It is well -settled that writ jurisdiction is discretionary in
nature and that the discretion must be exercised equitably for
promotion of good faith vide State of Maharashtra vs. Prabhu ,
(1994) 2 SCC 481 (“Prabhu”) . This Court has further emphasized
that fraud and collusion vitiate the most solemn precedent in any
civilized jurisprudence ; and that fraud and justice never dwell
together (fraus et jus nunquam cohabitant ). This maxim has never
lost its lustre over the centuries. Thus, any litigant who is guilty of
inhibition before the Court should not bear the fruit and benefit of
the court’s orders. This Court has also held that fraud is an act of
deliberation with a desire to secure something which is othe rwise
not due. Fraud is practiced with an intention to secure undue
advantage. Thus, an act of fraud on courts must be viewed
seriously.
43.1. Further, f raud can be established when a false representation
has been made (i ) knowingly, or (ii) without belief in its truth, or (iii),
recklessly, being careless about whether it be true or false . While
suppress ion of a material document would amount to a fraud on
the Court , suppression of material facts vital to the decision to be
rendered by a court of law is equally serious. Thus, once it is held
that there was a fraud in judicial proceedings all advantages gained
as a result of it h ave to be withdrawn . In such an eventuality,
doctrine of res judicata or doctrine of binding preceden t would not
be attracted since an order obtained by fraud is non est in the eye
of law.
43.2. In K.D. Sharma v s. Steel Authority of India Limited ,
(2008) 12 SCC 481 (“K.D. Sharma”) , this Court held that the
jurisdiction of the Supreme Court under Article 32 and of the High
Court under Article 226 of the Constitution is extraordinary,
equitable and discretionary and it is imperative that the petitioner
approaching the Writ Court must come with clean hands and put
forward all the facts before the Court without concealing or
suppressing anything and seek an appropriate relief. If there is no
candid dis closure of relevant and material facts or the petitioner is
guilty of misleading the Court, his petition may be dismissed at the
threshold without considering the merits of the claim. It was held
thus:
“38. The above principles have been accepted in our
legal system also. As per settled law, the party who
invokes the extraordinary jurisdiction of this Court
Under Article 32 or of a High Court Under Article 226 of
the Constitution is supposed to be truthfu l, frank and
open. He must disclose all material facts without any
reservation even if they are against him. He cannot be
allowed to play "hide and seek" or to "pick and choose"
the facts he likes to disclose and to suppress (keep back)
or not to disclose (conceal) other facts. The very basis of
the writ jurisdiction rests in disclosure of true and
complete (correct) facts. If material facts are suppressed
or distorted, the very functioning of writ courts and
exercise would become impossible. The Petitioner must
disclose all the facts having a bea ring on the relief
sought without any qualification. This is because "the
court knows law but not facts".
39. … Suppression or concealment of material facts is
not an advocacy. It is a jugglery, manipulation,
maneuvering or misrepresentation, which has no place
in equitable and prerogative jurisdiction. If the applicant
does not disclose all the material facts fairly and truly
but states them in a distorted manner and misleads the
court, the court has inherent power in or der to protect
itself and to prevent an abuse of its process to discharge
the Rule nisi and refuse to proceed further with the
examination of the case on merits. If the court does not
reject the petition on that ground, the court would be
failing in its duty. In fact, such an applicant requires to
be dealt with for contempt of court for abusing the
process of the court. ”
43.3. In K. Jayaram vs. Bangalore Development Authority,
2021 SCC OnLine SC 1194 (“K. Jayaram”) , a bench of this Court
headed by Sri Nazeer, J. noticed that the appellants therein had not
come to the Court with clean hands. The appellants in the said case
had not disclosed the filing of a suit and its dismissal and also the
dismissal of the appeal against the judgment of the Civil Court. This
Court stressed that the parties have to disclose the details of all
legal proceedings and litigations either past or present concerning
any part of the subject matter of dispute which is within their
knowledge in order to check multiplicity of proceedings pertaining
to the same subject -matter and more importantly to stop the
menace of soliciting inconsistent orders through different judicial
forums by suppressing material facts either by remaining silent or
by making misleading statements in the pleadings in order to
escape the liability of making a false statement. This Court observed
that since the appellants therein had not disclosed the filing of the
suit and its dismissal and also the dismissal of the appeal against
the judgment of the civil court, the appellants had to be non -suited
on the ground of suppression of material facts. They had not come
to the court with clean hands and they had also abused the process
of law, therefore, they were not entitled to the extraordinary,
equitable and discretionary relief.
43.4. A Division Bench of this Court comprising Justice B. R. Gavai
and Justice C.T. Ravikumar placing reliance on the dictum in S.P.
Chengalvaraya Naidu , held in Ram Kumar vs. State of Uttar
Pradesh, AIR 2022 SC 4705 , that a judgment or decree obtained
by fraud is to be treated as a nullity.
44. We wish to consider the case from another angle. The order of
this Court dated 13.05.2022 is also per incuriam for the reason that
it fails to follow the earlier binding judgments of this Court
including that of the Constitution Bench in V. Sriharan vis-à-vis
the appropriate Government which is vested with the power to
consider an application for remission as per sub -section (7) of
Section 432 of the CrPC and that of the nine Judge Bench decision
in Naresh Shridhar Mirajkar that an order of a High Court cannot
be set aside in a proceeding under Article 32 of the Constitution .
44.1. In State of U.P. vs. Synthetics and Chemicals Ltd., (1991)
4 SCC 139 (“Synthetics and Chemicals Ltd .”), a two Judge
Bench of this Court (speaking through Sahai J. who also wrote the
concurring judgment along with Thommen, J.) observed that the
expression per incuriam means per ignoratium . This principle is an
exception to the rule of stare decisis . The ‘quotable in law’ is avoided
and ignored if it is rendered, ‘ in ignoratium of a statute or other
binding authority’. It would result in a judgment or order which is
per incuriam . In the case of Synthetics and Chemicals Ltd ., the
High Court relied upon the observations in paragraph 86 of the
judgment of the Constitution Bench in Synthetics and Chemicals
Ltd., namely, “sales tax cannot be charged on industrial alcohol in
the present case, because under the Ethyl Alcohol (Price Control)
Orders, sales tax cannot be charged by the State on industrial
alcohol” and struck down the levy.
In Synthetics and Chemicals Ltd ., before the two-judge
bench, it was categorically argued by the learned Advocate General
appearing for the appellant State of Uttar Pradesh that the reference
to “sales tax” in the judgment of this Court in the earlier round of
the litigation was accidental and did not arise from the judgment.
This was because the levy of sales tax was not in question at any
stage of the arguments nor was the question considere d as it was
not in issue. The Court gave no reason whatever for abruptly stating
that “sales tax was not levi able by the State by reason of the Ethyl
Alcohol (Price Control) Orders.” In fact, the question which arose
for consideration in the earlier litigation was in regard to the validity
of “vend fee and other fees” charged by the States. The argument
was that such impost, to the extent that it fell on industrial alcohol,
encroached upon the legislative field reserved for Parliament in
respect of a controlled industry coming under Entry 52 of List I
(read with Entry 33 of List III). Vend fee or transport fee a nd similar
fees, unless supported by quid pro quo , this Court held, interfered
with the control exercised by the Central Government under the
Industries (Development and Regulation) Act, 1951 (for short “IDR
Act, 1951”) and the various orders made thereunder with respect to
prices, licences, permits, dis tribution, transport, disposal,
acquisition, possession, use, consumption, etc., of articles related
to a controlled industry, industrial alcohol being one of them. But
none of the observations in the judgment warranted the abrupt
conclusion, to which the court came, that the power to levy taxes
on sale or purchase of goods referable to Entry 54 of List II was
curtailed by the control exercised by the Central Government under
the IDR Act. The casual reference to sales tax in the concluding
portion of the judgment was accidental and per incuriam was the
submission.
While considering the said plea, this Court observed that “the
only question which had to be determined between the same parties
reported in (1990) 1 SCC 109 (Synthetics and Chemicals Ltd.
vs. State of U.P. ) was “whether intoxicating liquor in Entry 8 in List
II was confined to potable liquor or includes all liquors.” Answering
this question, this Court categorically held that intoxicating liquor
within the meaning of Entry 8 of List II was confined to potable
liquor and did not include industrial liquor. This Court did not deal
with the taxing power of the State under Entry 54 of List II which
deals with ‘taxes on the sale or purchase of goods other than
newspapers, subject to the provisions of Entry 92 -A of List I’. The
power of the State to levy taxes on sale or purchase of goods under
that entry was not the subject matter of discussion by this Court
although in paragraph 86 of the leading judgment of this Court,
there was a reference to sales tax.
Therefore, the only question that was considered by the seven -
judge bench of this Court was whether the State could levy “excise
duty” or “vend fee” or “transport fee” and the like by recourse to
Entry 51 or 8 in List II in respect of industrial alcohol. E ntry 52 List
II was not applicable to fee or charges in question. Entry 52 List II
refers to “Taxes on the entry of goods into a local area for
consumption, use or sale therein”. Further, the observation that
sales tax cannot be charged by the State on in dustrial alcohol was
an abrupt observation without a preceding discussion, and
inconsistent with the reasoning adopted by this Court in earlier
decisions from which no dissent was expressed on the point.
However, the aforesaid observation with reference to Entry 52 of
List II in connection with excise duty and sales tax when neither
falls under that entry, was held to be per incuriam .
This was because this Court by a detailed discussion in the
seven -judge bench decision had observed that the impugned
statutory provisions purportedly levying fees or enforcing
restrictions in respect of industrial alcohol were impermissible in
view of the control assumed by the Central Government in exercise
of its power under Section 18 -G of the IDR Act in respect of a
declared industry falling under Entry 52 of List I, read with Entry
33 of List III.
It was in the above background that this Court considered the
question whether or not the power of the State to levy tax on the
sale or purchase of goods falling under Entry 54 of List II would
comprehend industrial alcohol. This was because the taxing pow er
under Entry 54 of List II was subject to taxing power of the
Parliament under Entry 92 -A of List I. Therefore, it was observed
that the provisions in question by which sales tax could be levied
within the scope and ambit of Entry 54 List II was contrar y to what
had been stated (in paragraph 86) by the seven -judge bench
decision between the same parties. It was observed that the
aforesaid decision of this Court was not an authority for the
proposition canvassed by the assessee in challenging the provisi on.
This Court could not have intended to say that the Price Control
Orders made by the Central Government under the IDR Act
imposed a fetter on the legislative power of the State under Entry
54 of List II to levy taxes on the sale or purchase of goods. Th e
reference to sales tax in paragraph 86 of that judgment was merely
accidental or per incuriam and therefore, had no effect.
In the earlier litigation of Synthetics and Chemicals Ltd .,
the question was whether the State Legislature could levy vend fee
or excise duty on industrial alcohol. The seven -Judge Bench
answered in the negative as industrial alcohol being unfit for
human consumption, the State legislat ure was incompetent to levy
any duty of excise either under Entry 51 or Entry 8 of List II of the
Seventh Schedule. While doing so , the Bench recorded the above
conclusion. It was not preceded by any discussion. No reason or
rationale could be found in the judgment. Th erefore, it was held by
the two -Judge Bench that the same was per incuriam and was liable
to be ignored in a subsequent matter between the same parties. The
courts have taken recourse to this principle for relieving from
injustice being perpetrated by unjust precedents. It was observed
that uniformity and consistency are core of judicial discipline. But,
if a decision proceeds contrary to the law declared, it cannot be a
binding precedent. It was further observed that the seven -Judge
Bench in Synthetics and Chemicals Ltd . did not discuss the
matter and had observed that the State cannot levy sales tax on
industrial alcohol. In the subsequent matter which arose from the
High Court between the same parties, it was held by this Court that
the conclusion of law by the Constitution Bench that no sales or
purchase tax could be levied on industrial alcohol was per incuriam
and also covered by the rule of sub-silentio and therefore, was not a
binding authority or precedent.
Thus, although it is the ratio decidendi which is a precedent
and not the final order in the judgment , however, there are certain
exceptions to the rule of precedents which are expressed by the
doctrine s of per incurium and sub silentio . Incuria legally means
carelessness and per incurium may be equated with per ignorantium .
If a judgment is rendered in ignorantium of a statute or a binding
authority, it becomes a decision per incurium. Thus, a decision
rendered by ignorance of a previous binding decision of its own or
of a court of coordinate or higher jurisdiction or in ignorance of the
terms of a statu te or of a rule having the force of law is per incurium .
Such a per incurium decision would not have a precedential value.
If a decision has been rendered per in curium , it cannot be said that
it lays down good law, even if it has not been expressly overruled
vide Mukesh K . Tripathi vs. Senior Divisional Manager, LIC ,
(2004) 8 SCC 387 (para 23). Thus, a decision per incurium is not
binding.
44.2. Another exception to the rule of preceden ts is the rule of sub-
silentio . A decision is passed sub-silentio when the particular point
of law in a decision is not perceived by the court or not present to
its mind or is not consciously determined by the court and it does
not form part of the ratio deciden di it is not binding vide Amrit Das
vs. State of Bihar, (2000) 5 SCC 488 .
45. One of the contentions raised in the present case was that
since this Court in the order dated 13.05.2022 had directed that
the State of Gujarat was the appropriate Government, the same was
binding on the parties even though it may be contrary to the earli er
decisions of this Court. We cannot accept such a submission having
regard to what has been observed above in the case of Synthetics
and Chemicals Ltd . which was also with regard to the application
of the same doctrine between the very same parties inasmuch as
when a judgment has been delivered per incuriam or passed sub-
silentio , the same cannot bind either the parties to the judgment or
be a binding precedent for the future even between the same
parties . Therefore, for this reason also, the order dated 13.05.2022
would not bind the parties thereto and particularly, to the petitioner
in Writ Petition (Crl.) No.491 of 2022 who was in any case not a
party to the said writ proceeding.
46. Having regard to the above discussion and in light of the
provisions of the CrPC, the judgments of this Court and our own
understanding of the order dated 13.05.2022 passed by a
coordinate Bench of this Court in Writ Petition No.135 of 2022, we
hold as follows:
(i) that the Government of State of Gujarat (respondent
No.1 herein) had no jurisdiction to entertain the
applications for remission or pass the orders of
remission on 10.08.202 2 in favour of respondent No.3
to 13 herein as it was not the appropriate Government
within the meaning of sub -section (7) of Section 432
of the CrPC;
(ii) that th is Court’s order dated 13.05.2022 being
vitiated and obtained by fraud is therefore a nullity
and non est in law. A ll proceedings taken pursuant to
the said order also stand vitiated and are non est in
the eye of law.
47. Point No.3 is accordingly answered .
Point No.4 : Whether the impugned order of remission
passed by the respondent - State of Gujarat in favour
of respondent Nos.3 to 13 are in accordance with
law?
48. We have perused the original record which is the English
translation from Gujrati language.
48.1. Even according to the respondent State of Gujarat
Radheshyam Bhagwandas Shah has not made any application
seeking remission before the Superintendent, Godhra Sub -Jail or
the State of Gujarat on 01.08.2019.
48.2. All the other applications were made even prior to the order of
this Court made in Writ Petition (Crl.) No.135 of 2022 on
13.05.2022. Within next few days i.e. on 26.05.2022, the Jail
Advisory Committee gave its opinion recommending grant of
remission. T he recommendation of ADG and IG of Jails was
received in almost cases on 09.06.2022. In two cases, (i) the
recommendation of the ADG and IG was received on 18.08.2021
and 09.06.2021 [in the case of Govind Bhai Akham Bhai Nai
(Raval)] and (ii) on 18.0 8.2021 [in the case of Radheyshyam
Bhagwandas Shah ].
48.3. The communication of the State Government to the Central
Government was made on 28.06.2022; the second respondent
Union of India gave its concurrence on 11.07.2022; and, the order
of remission was made on 10.08.2022.
48.4. We extract one of the orders of remission dated 10.08.2022
in the case of respondent No.3 as under:
Order Number JLK/83202/2978/J
Secretariat House, Gandhinagar,
Dated: 10/08/2022 .
Reference:
(1) Order of the Hon’ble Supreme Court date:13/05/2022,
Writ Petition (Criminal) No.135/2022.
(2) The Additional Director General of Police and Inspector
General of Prisons, State of Gujarat, Ahmedabad/letter
dated:17/06/2022 No: - JUD/14 Year/2/4754/2022.
(3) Department Circular Date: 09/7/1992,
(4) Ministry of Home, The Government of India, Letter dated:
11/07/2022, No.15/05/2022/JC -II
Mr. Radheshyam Bhagwandas Shah, From Godhra
Sub Jail filed Writ Petition in the Hon’ble Supreme Court
as per reference No.1 and Hon’ble Supreme Court passed
order to take decision as per policy mentioned in reference
No.3 within two months regarding Pre -mature release
application of Mr. Shah. The premature release proposal
was prepared and sent by the Additional Director General
of Police and Inspector General of Prisons as per the letter
of reference No.2. The provision under Section 432 of CrPC
the State Government has power for pre -mature release,
however provision under Section 435(1)(A) of CrPC.
Indicates that any case investigated by any agency which
is established by Union Government Rules, in those cases
it is need to be consulted with Central Gover nment is
required. This case was investigated by CBI, therefore the
State Government of Gujarat in consultance with Central
Government letter dated 28/06/2022. Pursuant to which
the Ministry of Home Affairs of the Government of India
has given a positive o pinion regarding the release of the
prisoner from the letter reference (4), considering all the
details, the release of Mr. Radheshyam Bhagwandas Shah
was under consideration.
Provision under Criminal Procedure Code, 1973
Section 443(A), power given to State Government under
Section 432 of Criminal Procedure Code, 1973, the convict
prisoner Radheshyam Bhagwandas Shah’s life sentence
remitted under the following conditions and ta ken decision
by Government to release him from immediate effect.
(1) He shall to furnish surety of two gentlemen about after
releasing him, he will behave good up to two years and also
given undertaking he will not breach public peace and
harass parties and witnesses.
(2) After being released from prison if he commits cognizable
offense causing grievous hurt to anyone or property then
he may be re -arrested and shall serve the remaining of his
sentence.
(3) After released from jail he must give his attendance in
nearest police station, once in a month till one year.
The jail authority shall read and explain above
conditions to him and before releasing him, prior to his
release from prison, the jail authority must keep a written
record indicating that he has understood the said
conditions and that he agrees to these co nditions of release
from prison.
By order of the Governor of Gujarat and in his name.
(Mayursinh Vaghela)
Under Secretary
Home Department.”
48.5. Though we have extracted one of the remission orders, we
observe that having given our categorical finding on Point No. 3, it
may not be necessary to dilate on certain aspects of Point No.4 ,
though it is quite evident that the said order is a non-speaking one
reflecting complete non -application of mind. All orders dated
10.08.2022 are a stereotyped and cyclostyled orders.
48.6. Be that as it may , it would be useful to refer to the following
judgments in the context of passing an order of remission in terms
of Section 432 read with Section 435 of the CrPC.
(a) V. Sriharan is a judgment of this Court wherein the
Constitution Bench answered seven questions out of which the
following questions are relevant for the purposes of this case:
“xxx xxx xxx
8.3. (iii) Whether the power under Sections 432 and 433 of
the Criminal Procedure Code by the appropriate
Government would be available even after the
constitutional power under Articles 72 and 161 by the
President and the Governor is exercised as well as the
power exercised by this Court under Article 32?
8.4. (iv) Whether the State or the Central Government have
the primacy under Section 432(7) of the Criminal
Procedure Code?
8.5. (v) Whether there can be two appropriate
Governments under Section 432(7)?
8.6. (vi) Whether power under Section 432(1) can be
exercised suo motu without following the procedure
prescribed under Section 432(2)?
8.7. (vii) Whether the expression “consultation”
stipulated in Section 435(1) really means
“concurrence”?”
(i) This Court observed that the procedure to be followed under
Section 432(2) is mandatory and that suo moto power of
remission cannot be exercised under Section 432(1) and it can
only be initiated b y an application of the person convicted as
provided under Section 432(2) and the ultimate order of
suspension of sentence or remission should be guided by the
opinion to be rendered by the Presiding Officer of the Court
concerned. In this case the earlier judgement of this court in
Sangeet was approved.
(b) In Sangeet , it was observed that a convict undergoing a
sentence does not have a right to get remission of sentence,
however, he certainly does have a right to have his case
considered for the grant of remission as held in Mahender Singh
and Jagdish . It was further observed in the said case that there
does not seem to be any decision of this Court detailing the
procedure to be followed for the exercise of power under Section 432
of the CrPC which only lays down the basic procedure i.e. by making
an application to the appropriate Government for the suspension or
remission of a sentence, either by the convict or someone on his
behalf. It was observed that sub -section (1) of Section 432 of the
CrPC is only an enabling provision to override a judicially
pronounced sentence, subject to the fulfilment of certain
conditions. These conditions are found either in the Jail Manual or
in statutory rules. It was pertinently observed that when an
application for remission is made the appropriate Government may
take a decision on the remission application and pass orders
granting remission subject to certain conditions or , refuse
remission. But there has to be an application of mind on the
remission application so as to eliminate discretionary en-masse
release of convicts on “festive” occasions, since each release
requires a case by case scrutiny. It was observed that the power
of remission cannot be exercised arbitrarily and the decision to
grant remission has to be well informed, reasonable and fair to all
concerned. The statutory procedure under Section 432 of the CrPC
provides a check on the possible misuse of power of the appropriate
Government.
(i) It was further observed that there is a misconception that a
prisoner serving a life sentence has an indefeasible right to be
released on completion of fourteen years or twenty years of
imprisonment; however, in reality, the prisoner has no such
right. A convict undergoing life imprisonment is expected to
remain in custody till the end of his life, subject to any
remission granted by the appropriate Government under
Section 432 of the CrPC which, in turn, is subject to the
procedural checks in that section and the substantive check
in Section 433 -A of the CrPC. That the application of Section
432 of the CrPC to a convict is limited inasmuch as, a convict
serving a definite term of imprisonment is entitled to earn a
period of remission under a st atutory rule framed by the
appropriate Government or under the Jail Manual. The said
period is then offset against the term of punishment given to
him. Thus, upon completion of the requisite period of
incarceration, a prisoner’s release is automatic. However,
Section 432 of the CrPC will apply only when a convict is to be
given an “additional” period of remission for his release i.e.,
the period to what he has earned as per the Jail Manual
or the statutory rules. That in the case of convict undergoing
life imprisonment, the period of custody is indeterminate.
Remissions earned or awarded to such a life convict are only
notional and Section 432 of the CrPC reduces the period of
incarceration by an order passed by an appropriate
Government which cannot be reduced to less than fourteen
years as per Section 433 -A of the CrPC. Th is Court after a
detailed discussion came to the following conclusions on
the aspect of grant of remissions:
“77.5. The grant of remissions is statutory. However,
to prevent its arbitrary exercise, the legislature has
built in some procedural and substantive checks in
the statute. These need to be faithfully enforced.
77.6. Remission can be granted under Section 432
Cr.P.C. in the case of a definite term of sentence. The
power under this section is available only for granting
“additional” remission, that is, for a period over and
above the remission granted or awarded to a convict
under the Jail Manual or other statutory rules. If the
term of sentence is indefinite (as in life imprisonment),
the power under Section 432 Cr.P.C. can certainly be
exercised but not on the basis that life imprisonment
is an arbitrary or notional figure of twenty years of
imprisonment.
77.7. Before actually exercising the power of
remission under Section 432 Cr.P.C. the appropriate
Government must obtain the opinion (with reasons) of
the Presiding Judge of the convicting or confirming
Court. Remissions can, therefore, be given only on a
case-by-case basis and not in a wholesale manner. ”
(c) Ram Chander was a case of a writ petition being filed before
this Court under Article 32 of Constitution seeking a direction to the
respondent -State therein to grant him premature release. This
Court speaking through Dr. D.Y. Chandrachud., J., (presently the
learned Chief Justice) considered the aspect of judicial review of
power of remission and referred to Mohinder Singh to observe that
the power of remission cannot be exercised arbitrarily and the
decision to grant remission should be informed, reasonable and fair.
In this context, reliance was placed on Laxman Naskar wherein
this Court, stipulated the factors that govern the grant of remission
namely:
i. Whether the offence is an individual act of crime
without affecting the society at large?
ii. Whether there is any chance of future recurrence
of committing crime ?
iii. Whether the convict has lost his potentiality in
committing crime?
iv. Whether there is any fruitful purpose of confining
this convict any more?
v. Socio -economic condition of the convict’s family.”
(i) That while grant of remission is the exclusive prerogative of the
executive, the Court cannot supplant its view. The Court can
direct the authorities to reconsider the representation of the
convict vide Rajan. Therefore, while there can be no direction
to release a prisoner forthwith or to remit the remaining
sentence, at best there can only be a direction issued to the
State to consider the representation made for remission
expeditiously on its own merits and in accordance with law. In
this case, reliance was placed on Halsbury’s Law of India
(Administrative Law) to observe that sufficiency of reasons, in a
particular case, depends on the facts of each case while
considering an application for remission. It was further
observed that mechanical or stereo typed reasons are not
adequate as also, a mere repetition of the statutory language in
the order will not make the order a reasoned one. In the
aforesaid case, the application for remission was directed to be
reconsidered with adequate reasoning and taking into
consideration all the relevant factors that govern the grant of
remission as laid down in Laxman Naskar .
(d) Epuru Sudhakar is also a case where a writ petition was filed
under Section 32 of the Constitution challenging an order of
Government of Andhra Pradesh, whereby a convict (respondent No.2
therein) was granted remission of unexpired period of about seven
years’ imprisonment. The petition was filed by the son of the
murdered person s while the convict was on bail in the murder case
of petitioner No.1’s father therein. In the writ petition it was alleged,
inter alia, that the grant of remission was illegal as relevant
materials were not placed before the Governor and the impugned
order was made without application of mind and based on irrelevant
and extraneous materials and therefore, liable to be set aside. That
was a case where remission or grant of pardon was under Article
161 of the Constitution by the Governor of the State of Andhra
Pradesh. This Court, while considering the philosophy underlining
the power of pardon or the power of clemency observed that the said
power exercised by a department or functionary of th e Government
is in the context of its political morality. Reliance was placed on
Biddle , Warden vs. Perovich, 274 US 480 (1927) (“Biddle”) in
which case, Holmes, J of the United States Supreme Court had
observed on the rationale of pardon in the following words:
“…a pardon in our days is not a private act of grace
from an individual happening to possess power. It is
a part of the constitutional scheme. When granted, it
is the determination of the ultimate authority that the
public welfare will be better served by inflicting less
than what the judgment fixed…”
(i) It was observed that the prerogative of mercy exercised by a
State as a prerogative power of a Crown as in England (U.K.) or
of the President of India or Governor of a State in India is
reviewable as an administrative action in case there is an abuse
in the exercise of the prerogative power. That the prerogative
power to pardon or grant clemency or for that matter remission
of sentence being a discretionary power, it must be exercised
for the public good and the same can be examined by the Courts
just as any other discretionary power which is vested with the
executive. Therefore, judicial review of the exercise or non -
exercise of the power of pardon by the President or Governor is
available in law. That any exercise of public power, including
constitutional power , shall not be exercised arbitrarily or
mala fide vide Maru Ram . It was observed in the said case that,
considerations of religion, caste, colour or political loyalty are
totally irrelevant and fraught with discrimination. The function
of determining whether the act of a constitutional or statutory
functionary falls within the constitutional or legislative
conferment of power or is vitiated by self -denial or an erroneous
appreciation of the full amplitude of the power, is a matter for
the Court to decide vide Kehar Singh vs. Union of India,
(1989) 1 SCC 204 (“Kehar Singh”) .
(ii) In Epuru Sudhakar , two other aspects were also considered:
one relating to the desirability of indicating reasons in the order
granting pardon/remission and the other , relating to the power
to withdraw the order of granting pardon/remission, if
subsequently, materials are placed to show that certain
relevant materials were not considered or certain materials of
extensive value were kept out of consideration. It was observed
that the affected party need not be given the reasons but that
does not mean that there should not be legitimate or relevant
reasons for passing the order. It was also observed that in the
absence of any specific reference under Article s 72 or 161 of
Constitution with regard to withdrawal of an order of remission,
there is no bar for such power being exercised.
(iii) On a consideration of the facts of the said case, it was observed
that, irrelevant and extraneous materials had entered into the
decision -making process, thereby vitiating it. The order
granting remission impugned in the writ petitions was set aside
being unsustainable and directed to be reconsidered and the
writ petition was allowed to that extent. Kapadia, J., as the
learned Chief Justice then was, in his concurring opinion
observed that, exercise of executive clemency is a matter of
discretion and yet subject to certain standards. The discretion
has to be exercised or public considerations allowed . Therefore,
the principle of exclusive cognizance would not apply when the
decision impugned is in derogation of a constitutional
provision. It was further stated that granting of pardon has the
effect of eliminating conviction without addressing the
defendant’s guilt or innocence.
(iv) The exercise of the prerogative power is subject to judicial
review and rule of law which is the basis for evaluation of all
decisions. Rule of law cannot be compromised on the grounds
of political expediency as “ to go by such consideration would be
subversive of the fundamental principles of rule of law and it
would amount to setting a dangerous precedent.”
(e) In Mansukhlal Vithaldas Chauhan vs. State of Gujarat,
(1997) 7 SCC 622, the basis on which the legality of an
administrative decision could be reviewed was stated. It could be
on whether, a decision making authority exceeding its powers
committed an error of law; committed a breach of rules of natural
justice; reached a decision which no reasonable tribunal would have
reached or abused its powers . In other words, the judicial review of
the order of the President or the Governor under Article 72 or Article
161 of the Constitution, as the case may, is available and such
orders can be impugned on the following ground s:
i. that the order has been passed without application
of mind;
ii. that the order is mala fide;
iii. that the order has been passed on extraneous or
wholly irrelevant considerations;
iv. that relevant materials have been kept out of
consideration;
v. that the order suffers from arbitrariness.
(f) Further , in Swamy Shraddananda , it was observed that
judicial notice has to be taken of the fact that remission, if allowed
to life convicts in a mechanical manner without any sociological or
psychiatric appraisal of the convict and without any proper
assessment as to the effect of early release of a particular convict on
the society. It was further observed that, the power of executive
clemency is not only for the benefit of the convict but what has to
be borne in mind is the effect of the decision on the family of the
victims, society as a whole and the precedent which it sets for the
future. Thus, the exercise of power depends upon the facts and
circumstances of each case and has to be judged from case to case.
Therefore, one cannot draw the guidelines for regulating exercise of
power. Further, the exercise or non -exercise of power of pardon or
remission is subject to judicial review and a pardon obtained by
fraud or granted by mistake or granted for improper reaso ns would
invite judicial review and the vindication of the rule of law being the
main object of judicial review, the mechanism for giving effect to that
justification varies. Thus, rule of law should be the overarching
conditional justification for judicial review.
(g) In Rajan , it was observed that where a person has been
convicted on several counts for different offences in relation to which
life imprisonment has been granted, the convict may succeed in
being release d prematurely only if the competent authority passes
an order of remission concerning all the life sentences awarded to
the convict on each count which is a matter to be considered by
the competent authority.
48.7. With regard to the remission policy applicable in a given case,
the following judgments are of relevance:
(a) In Jagdish, a three Judge Bench of this Court considered the
conflicting opinions expressed in State of Haryana vs. Balwan,
(1999) 7 SCC 355 (“Balwan”) on the one hand and Mahendar
Singh, and State of Haryana vs. Bhup Singh, (2009) 2 SCC 268
(“Bhup Singh”) on the other. The question considered by the three -
Judge bench was, whether, the policy which provides for remission
and sentence should be that which was existing on the date of the
conviction of the accused or should it be the policy that existed on
date of consideration of his case for premature release by the
appropriate authority. Noting that remission policy would be
changed from time to time and after referring to the various
decisions of this Court, including Gopal Vinayak Godse and
Ashok Kumar , this Court observed that, liberty is one of the most
precious and cherished possessions of a human being and he would
resist forcefully any attempt to diminish it. Similarly, rehabilitation
and social reconstruction of a life convict, as an objective of
punishment become a paramount importance in a welfare State.
The State has to achieve the goal of protecting the society from the
convict and also rehabilitate the offender. The remission policy
manifests a process of reshaping a person who, under certain
circumstances, has indulged in criminal activities and is required to
be rehabilitated. Thus, punishment should not be regarded as the
end but only a means to an end. Relevancy of circumstances to an
offence such as the state of mind of the convict when the offe nce
was committed, are factors to be taken note of. It was further
observed as under:
“46. At the time of considering the case of premature
release of a life convict, the authorities may require to
consider his case mainly taking into consideration whether
the offence was an individual act of crime without affecting
the society at large; whether there was any chance of
future recurrence of committing a crime; whether the
convict had lost his potentiality in committing the crime;
whether there was any fruitful purpose of confining the
convict any more; the socio -economic condition of the
convict’s family and other similar circumstances.”
(i) That the executive power of clemency gives an opportunity to
the convict to reintegrate into the society. However, the power
of clemency must be pressed into service only in appropriate
cases. Ultimately, it was held that the case for remission has
to be considered on the strength of the policy that was existing
on the date of conviction of the accused. It was further observed
that in case no liberal policy prevails on the date of
consideration of the case of a convict under life imprisonment
for premature release, he should be given the benefit thereof
subject of course to Section 433-A of the CrPC.
48.8. At this juncture, it is relevant to refer to the following
decisions of this Court, wherein orders of remission have been
quashed and set aside by this Court on various grounds:
(a) In Swaran Singh vs. State of Uttar Pradesh, (1998) 4 SCC
75, a three -Judge Bench of this Court considered the question as
to scope of judicial review of an order of a Governor under Article
161 of the Constitution of India. In the said case, a Member of the
Legislative Assembly of the State of Uttar Pradesh had been
convicted of the offence of murder and within a period of less than
two years , he was granted r emission from the remaining long period
of his life sentence. The son of the deceased moved the Allahabad
High Court challenging the aforesaid action of the Governor and the
same having been dismissed, the matter had been brought to this
Court. This Court noticed that the Governor exercised the power to
grant remission, without being appraised of material facts
concerning the prisoner , such as , his involvement in five other
criminal cases of serious nature, the rejection of his e arlier
clemency petition and the report of the jail authority that his
conduct inside the jail was far from satisfactory and that out of the
two years and five months he was supposed to have been in jail, he
was in fact out on parole during the substantial part thereof. The
Court further held that when the Governor was not in the know of
material facts, the Governor was deprived of the opportunity to
exercise the power to grant remission in a fair and just manner and
that the order granting remission fringe d on arbitrariness.
Therefore, the order of the Governor granting remission, was
quashed, with a direction to re -consider the petition of the prisoner
in light of the materials which the Governor had no occasion to
know earlier. As regards the question as to the power of judicial
review over an order passed by the Governor under Article 161 of
the Constitution, the following observations were made:
“10. A Constitution Bench of this Court has considered the
scope of judicial review of exercise of powers under Articles
72 and 161 of the Constitution of India in Kehar Singh v.
Union of India (1989) 1 SSC 204 . The bench after
observing that the Constitution of India is a constitutive
document which is fundamental to the governance of the
country under which people of India have provided a
constitutional polity consisting of certain primary organs,
institutions and functionaries to exercise the powers
provided in the Constitution, proceeded to add thus:
"All power belongs to the people and it is
entrusted by them to specified institutions and
functionaries with the intention of working out,
maintaining and operating a constitutional
order."
The Constitution Bench laid down that judicial review
of the Presidential order cannot be exercised on the merits
except within the strict limitations defined in Maru Ram
v. Union of India (1981 ) 1 SCC 107 . The limitations of
judicial review over exercise of powers under Articles 72
and 161 of the Constitution have been delineated in the
said decision by the constitution Bench. It has been
observed that “all public power, including constitutional
power, shall never be exercisable arbitrarily or mala fide,
and ordinarily guidelines for fair and equal execution are
guarantors of valid play of power. ” The bench stressed the
point that the power being of the greatest moment, cannot
be a law unto itself but it must be informed by the finer
canons of constitutionalism.
11. It was therefore, suggested by the bench to make rules
for its own guidance in the exercise of the pardon power
keeping a large residuary power to meet special situations
or sudden developments.
12. In view of the aforesaid settled legal position, we cannot
accept the rigid contention of the learned counsel for the
third respondent that this Court has no power to touch the
order passed by the Governor under Article 161 of the
constitution. If such power was exercised arbitrarily, mala
fide or in absolute disregard of the finer canons of the
constitutionalism, the by -product order cannot get the
approval of law and in such cases, the judicial hand must
be stretched to it. ”
(underlining by us)
(b) In Joginder Singh vs. State of Punjab, (2001) 8 SCC 306
the facts were that the respondents -convicts therein were convicted
for offences punishable under Sections 324, 325 and 326 read
with Section 34 of the IPC and had been awarded a sentence of one
year and six months which was challenged upto the High Court of
Punjab and Haryana and was confirmed. On the dismissal of the
Revision Petition by the High Court, the convicts surrendered before
the Superintendent of the concerned jail and on the same day were
released by the jail authorities on being granted the b enefit of
remission. It is of importance to note that during the period of trial
ending with confirmation of conviction in the Revision Petition by
the High Court, the convicts (earlier accused) were almost all at the
time out on bail except for a period of about 2 months and 25 days
when they were in jail, serving part of their sentence. The appellant
before this Court, who was the complainant, unsuccessfully
challenged the remission order before the High Court and thereafter
approached this Court by way of a Special Leave Petition. The
primary ground of challenge before this Court was that the periods
of remission permissible under successive notifications issued
between 13. 07.1988 and 29. 07.1998 (period between date of
conviction by the Chief Judicial Magistrate and the date on which
the conviction and sentence was upheld by the High Court) were
cumulatively allowed to the convicts. That is to say that the
maximum period of remission permis sible under each of the seven
notifications issued between the said dates was to be cumulatively
taken into account to grant a total remission of 17 and a half
months. It was contended before this Court that the said approach
was erroneous in construing successive policies of remission. It was
further contended that while applying the period of remission
granted by the Government under any remission notification, the
period during which an accused person was out on bail cannot be
taken into account.
(i) This Court while allowing the appeal of the appellant therein -
complainant held that the High Court fell in error in holding
that the convicts were entitled to the benefit of the period of
remission given by the various notifications cumulatively to be
counted against the period during which they were out on bail.
(c) In Satpal , the order of the Governor granting remission to
convicts therein, in the exercise of power conferred by Article 161 of
the Constitution of India read with Section 132 of the Code of
Criminal Procedure was assailed by the brother and widow of the
deceased. The primary ground raised before this Court was that the
power to grant remission was exercised without application of mind,
and that the said power was exercised by the Governor having
regard to extraneous considerations and even without the aid and
advice of the Government, namely, the concerned Minister. This
Court examined the said case having regard to the parameters of
judicial review in relation to an order granting remission by the
Governor. It was noted that the Governor had proceeded to grant
remission of sentence without any knowledge as to the period of
sentence already served by the convicts and if a t all they had
undergone any period of imprisonment. It was noted that an order
granting remission would be arbitrary and irrational if passed
without knowledge or consideration of material facts.
49. On a reading of the aforesaid judgments what emerges is that
the power to grant remission on an application filed by the convict
or on his behalf, is ultimately an exercise o f discretion by the
appropriate Government. It is trite that where there is exercise of
legal power coupled with discretion by administrative authorities,
the test is , whether , the authority concerned was acting within the
scope of its powers. This would not only mean that the concerned
authority and in the instant case, the appropriate Government had
not only the jurisdiction and authority vested to exercise its powers
but it exercised its powers in accordance with law i.e., not in an
arbitrary or perverse manner without regard to the actual facts or
unreasonably or which would lead to a conclusion in the mind of
the Court that there has been an improper exercise of discretion. If
there is improper exercise of discretion, it is an instance of an abuse
of discretion. There can be abuse of discretion when the
administrative order or exercise of discretio n smacks of mala fides
or when it is for any purpose based on irrelevant consideration by
ignoring relevant consideration or it is due to a colourable exercise
of power; it is unreasonable and there is absence of proportionality.
There could also be an abuse of discretion wher e there is failure to
apply discretion owing to mechanical exercise of power, non -
application of mind, acting under dictation or by seeking assistance
or advi ce or there is any usurpation of power.
49.1. It is not necessary to dilate upon each of the aforesaid aspects
of abuse of discretion in the instant case, as we have observed that
the consideration of the impugned orders o r manner of exercise of
powers is unnecessary, having regard to the answer given by us to
Point No.3.
50. However, it would be relevant to refer to one aspect of abuse
of discretion, namely, usurpation of power. Usurpation of power
arises when a particular discretion vested in a particular authority
is exercised by some other authority in whom such power does not
lie. In such a case, the question whether the authority which
exercised discretion was competent to do so arises.
50.1. Applying the said principle to the instant case, we note that
having regard to the definition of “appropriate Government” and the
answer given by us to Point No.3, the exercise of discretion and the
passing of the impugned orders of remission in the case o f
respondent Nos.3 to 13 herein was an instance of usurpation of
power. It may be that this Court by its order dated 13.05.2022
passed in Writ Petition No.135 of 2022 had directed the first
respondent State of Gujarat to consider the case of responde nt No.3
under the 1992 Policy of the State of Gujarat, by setting aside the
order of the High Court of Gujarat dated 17.07.2019. What is
interesting is that in the said writ petition, the State of Gujarat had
correctly submitted before this Court that the app ropriate
Government in the instant case was State of Maharashtra and not
the State of Gujarat. The said contention was in accordance with
the definition of appropriate Government under clause (b) of sub -
section (7) of Section 432 of the CrPC. However, the said contention
was rejected by this Court contrary to several judgments of this
Court including that of the Constitution Bench in V. Sriharan. But
the State of Gujarat failed to file a review petition seeking correction
of the order of this Court dated 13.05.2022 , (particularly when we
have now held that the said order is a nullity ). Complying with the
said order can also be said to be an instance of usurpation of power
when the provision, namely, clause (b) of sub -section (7) of Section
432 states otherwise.
50.2. We fail to understand as to , why, the State of Gujarat, first
respondent herein, did not file a review petition seeking correction
of the order dated 13.05.2022 passed by this Court in Writ Petition
No.135 of 2022 in the case of respondent No.3 herein. Had the
State of Gujarat filed an application seeking review of the said order
and impressed upon this Court that it was not the “appropriate
Government” but the State of Maharashtra was the “appropriate
Government”, ensuing litigation would n ot have arisen at all . On
the other hand, in th e absence of filing any review petition seeking
a correction of the order passed by this Court dated 13.05.2022,
the first respondent -State of Gujarat herein has usurped the power
of the State of Maharashtra and has passed the impugned orders of
remission on the basis of an order of this Court dated 13.05.2022
which , in our view , is a nullity in law.
50.3. In this regard it is necessary to dilate on the background to
this case and refer to the previous orders passed by this Court as
under: -
The first order is dated 16.12.2003, referring the matter to the
CBI for investigation; the second is an order of transfer of the trial
from the competent Court in Gujarat to the Special Court at
Mumbai and the third is an order passed by this Court granting
compensation to the petitioner in Writ Petition (Crl.) No.491 of
2022 . The relevant portions of the aforesaid orders read as under: -
W.P.(Crl.) No.118 of 2003, dated 16.12.2003 –
referring matter to the CBI for investigation;
“Considering the nature of the allegations made, Shri
Mukul Rohtagi learned Additional Solicitor General
appearing for the respondents accepts that further
investigation in this case may be done by the CBI, though
he does not concede that the Gujarat Police is incompetent
to investigate the matter. Hence, we direct the CBI to take
over further investigation of this case and report to this
Court from time to time.
Let a report be filed by the CBI within eight weeks.
List after report is filed.”
Transfer Petition (Crl.) No.192 of 2004, dated
06.08.2004 – transfer of the trial from the
competent Court in Gujarat to the Special
Court at Mumbai;
“We are of the view that on account of the nature and
the allegations of the case, session case No.161 of 2004
before the Additional Sessions Judge, Dahod now
transferred to Additional Sessions Judge of IVth Court of
the City Civil Sessions Court Ahmedabad (CBI Case
No.RCZ/S/2004, SCB Mumbai) title CBI vs. Jaswantbhai
Chaturbhai & Others be transferred to any competent
Court in Mumbai for trial and disposal. This order be
placed before the Chief Justice of Bombay High Court who
shall designate the competent Court as he may deem fit.
The transfer petition is accordingly allowed.
This order is based on the perceptions of the CBI as
recorded in its report and should not be taken as a
reflection on the competence or impartiality of the
judiciary in the State of Gujarat.
Having regard to the peculiar facts of this case the
State of Gujarat shall bear the expenditure of the defence
of the accused in accordance with the provisions of the
Section 304 of the Code of Criminal Procedure.
It is made clear that for the purpose of this case the
Central Government will appoint the public prosecutor.”
Criminal Appeal Nos.727 -733 of 2019, order
dated 23.04.2019 - compensation
“The appellant, Bilkis Yakub Rasool, is a victim of
riots which occurred in the aftermath of the Godhra
train burning incident in the State of Gujarat on
February 27, 2002. While eventually, the perpetrators of
the crime including the police personnel stan d
punished, the appellant, who was aged twenty -one years
and pregnant at that time, having lost all members of
her family in the diabolical and brutal attacks needs to
be adequately compensated. Additional facts which we
must note are that the appellant was repeatedly
gangraped and was a mute and helpless witness to her
three -and-a-half-year-old daughter being butchered to
death. This factual position is undisputed and
unchallenged in light of the findings of the trial court
upheld by the High Court and this Court.
The appellant, we are informed, is presently about
forty years of age and is without any home and lives with
her daughter who was born after the incident. She has
been coerced to live life of a nomad and as an orphan,
and is barely sustaining herself on th e charity of NGOs,
having lost company of her family members. The
gruesome and horrific acts of violence have left an
indelible imprint on her mind which will continue to
torment and cripple her.
We do not have to search and elaborate upon
principles of law to come to the conclusion that the
appellant deserves to be adequately compensated. It is
only the quantum of compensation that needs to be
worked out by the Court. Time and again this Court has
held that the compensation so awarded must be just and
fair, and the criteria objective. However, this case has to
be dealt with differently as the loss and suffering evident
from the facts stated above surpass normal cases.
Taking into account the totality of the facts of the case,
we are of the v iew that compensation of Rs.50,00,000/ -
(Rupees fifty lakh only) to be paid by the State
Government within two weeks from today, on proper
identification, would meet the ends of justice. Coupled
with the aforesaid relief, we deem it proper to further
direct the State Government to provide the appellant
with an employment under the State, if she wishes so
and is inclined, and also to offer her government
accommodation at a place of her choice, if she is willing
to live in such accommodation.
With the aforesaid direction, the appeals relating to
compensation are disposed of.”
The aforesaid orders clearly indicate why this Court had
transferred the investigation and trial to the CBI and to the State of
Maharashtra respectively .
50.4. Such being the case, it was the State of Maharashtra which
was the appropriate Government which had to consider the
appellant for remission vis-à-vis respondent Nos.3 to 13 herein.
Instead, being unsuccessful before the High Court of Gujarat,
respondent No. 3 surreptitiously filed the writ petition before this
Court seeking a direction to consider his case for remission without
disclosing the full and material facts before this Court . Relief was
granted by this Court by conferring jurisdiction on State of Gu jarat
which it did not possess as per Section 432 (7) of the CrPC , in the
guise of consideration for remission on the basis of the 09.07.1992
policy, which had also stood cancelled in the year 2013. Taking
advantage of this Court’s order dated 13.05.2022, all other convicts
also sought consideration of their case by the Government of
Gujarat for remission even in the absence of any such direction in
their cases by this Court. Thus, the State of Gujarat has acted on
the basis of the direction issued by this Court but contrary to the
letter and spirit of law. We have already said that the State of
Gujarat never sought for the review of the order of this Court dated
13.05.2022 by bringing to the notice of this Court that it was
contrary to Section 432 (7) and judgments of this Court.
50.5. Instead, the State of Gujarat has acted in tandem and was
complicit with what the petitioner -respondent No.3 herein had
sought before this Court. This is exactly what this Court had
apprehended at the previous stages of this case and had intervened
on three earlier occasions in the interest of truth and justice by
transferring the investigation of the case to the CBI and the trial to
the Special Court at Mumbai . But, in our view, when no
intervention was called for in the writ petition filed by one of the
convicts /respondent No. 3 herein , this Court was misled to issue
directions contrary to law and on the basis of supp ression and
misstatements made by respondent No.3 herein . We have held that
order of this Court dated 13.05.2022 to be a nullity and non est in
the eye of law. Consequently, exercise of discretion by the State of
Gujarat is nothing but an instance of usurpation of jurisdiction and
an instance of abuse of discretion. If really State of Gujarat had in
mind the provisions of law and the judgments of this Court, and
had adhered to the rule of law, it would have filed a review petition
before this Court by contending that it was not the appropriate
Government. By failing to do so, not only are the earlier orders of
this Court in the matter have been vindicated but more importantly,
rule of law has been breached in usurping power not vested in it
and thereby aiding respondent Nos.3 to 13. This is a classic case
where the order of this Court dated 13.05.2022 has been used for
violating the rule of law while passing orders of remission in favour
of respondent Nos.3 to13 in the absence of any jurisdiction by
respondents – State of Gujarat. Therefore, without going into the
manner in which the power of remission has been exercised, we
strike down the orders of remission on the ground of usurpation of
powers by the State of Gujarat not vested in it . The orders of
remission are hence quashed on this ground also .
Section 432(2) of the CrPC : Opinion of the Presiding Judge of
the convicting court:
51. Sub-section (2) of Section 432 of the CrPC states that when
an application is made to the appropriate Government, inter alia,
for remission of a sentence, the appropriate Government may
require the Presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion , as to,
whether, the application should be granted or refused , together with
his reasons for such opinion and also to forward with the statement
of such opinion a certified copy of the record of the trial or of such
record thereof as exists.
52. Learned ASG Sri S.V. Raju submitted that the expression
“appropriate Government may require the opinion of the Presiding
Judge of the Court ” indicates that this is not a mandatory
requirement, therefore, in the instant case the opinion of the
Presiding Judge of the Court by which respondent Nos.3 to 13 were
convicted, namely, the Special Judge, Mumbai, was unnecessary.
It was further submit ted that since the State of Gujarat was
considering the applications for remission filed by respondent Nos.3
to 13 , the opinion of local Sessions Judge at Dahod was obtained
as a member of the Jail Advisory Committee and there was a
positive opinion for grant of remission to respondent Nos.3 to 13
herein.
52.1. This contention was however refuted by the learned counsel
Ms. Shobha Gupta by reiterating her submission that the
expression “may require” in sub -section (2) of Section 432 of the
CrPC ought to be read as “shall require”. This is evident from the
dicta of this Court. In this regard, reliance was placed on certain
judgments of this Court which we shall advert to in the first
instance as under:
(i) In Sangeet, it was observed that before actually exercising
the power of remission under Section 432 of the CrPC, the
appropriate Government must obtain the opinion (with reasons) of
the Presiding Judge of the convicting or confirming Court.
Remissions can, therefore, be given only on a case -by-case basis
and not in a wholesale manner.
(ii) Further, in V. Sriharan, it was observed that the declaration
of law made by this Court in Sangeet referred to above, is correct
and further the procedure to be followed under Section 432(2) of
the CrPC is mandatory. The manner in which the opinion is to be
rendered by the Presiding Judge can always be regulated and
settled by the concerned High Court and the Supreme Court by
stipulating the required procedure to be followed as and when any
such app lication is forwarded by the appropriate Government.
Therefore, it was observed that the suo motu power of remission
cannot be exercised under Section 432(1) of the CrPC and it can
only be initiated based on an application of the person convicted
under Section 432(2) of the CrPC and the ultimate order of
remission should be guided by the opinion to be rendered by the
Presiding Officer of the Court concerned.
(iii) This Court , in Ram Chander , has specifically dealt with the
value of the opinion of the Presiding Judge with reference to
paragraph 61 of Sangeet and paragraphs 148 and 149 of V.
Sriharan referred to above and observed in paragraphs 25 and 26
as under:
“25. In Sriharan (supra) , the Court observed that the
opinion of the presiding judge shines a light on the nature
of the crime that has been committed, the record of the
convict, their background and other relevant fact ors.
Crucially, the Court observed that the opinion of the
presiding judge would enable the government to take the
‘right’ decision as to whether or not the sentence should
be remitted. Hence, it cannot be said that the opinion of
the presiding judge is only a relevant factor, which does
not have any determinative effect on the application for
remission. The purpose of the pro cedural safeguard under
Section 432 (2) of the CrPC would stand defeated if the
opinion of the presiding judge becomes just another facto r
that may be taken into consideration by the government
while deciding the application for remission. It is possible
then that the procedure under Section 432 (2) would
become a mere formality.
26. However, this is not to say that the appropriate
government should mechanically follow the opinion of the
presiding judge. If the opinion of the presiding judge does
not comply with the requirements of Section 432 (2) or if
the judge does not consider the relevant factors for grant
of remission that have been laid down in Laxman Naskar
v. Union of India (supra), the government may request
the presiding judge to consider the matter afresh. ”
(iv) In paragraph 27, it was further observed that the Presiding
Judge in the said case ha d not taken into account the factors which
have been laid down in Laxman Naskar and that the opinion was
a mechanical one bereft of reasons and therefore, inadequate and
not in accordance with law. Consequently, the petitioner’s
application for remission was directed to be considered afresh with
a direction to the Special Judge, Durg to provide an opinion on the
application afresh accompanied with adequate reasoning, taking
into account all the relevant factors that govern the grant of
remission as laid down in Laxman Naskar. A direction was issued
to State of Chhattisgarh in the said case to take a final deci sion on
the application for remission afresh within a month after receiving
the opinion of the Special Judge, Durg. Consequently, the petition
filed under Article 32 was allowed in the aforesaid terms.
52.2. Thus, the consistent view of this Court which emerges is that
the expression “may” has to be interpreted as “shall” and as a
mandatory requirement under sub -section (2) of Section 432 of the
CrPC. The said provision has sufficient guidelines as to how the
opinion must be provided by the Presiding Judge of the Court which
has convicted the accused inasmuch as –
(i) the opinion must state as to whether the application
for remission should be granted or refused and for
either of the said opinions, the reasons must be
stated ;
(ii) naturally, the reasons must have a bearing on the
facts and circumstances of the case ;
(iii) the reasons must be in tandem with the record of the
trial or of such record thereof as exists ;
(iv) the Presiding Judge of the Court before or by which
the conviction was had or confirmed, must also
forward along with the statement of such opinion
granting or refusing remission, a certified copy of the
record of the trial or of such record thereof as exists.
52.3. Having regard to the requirements which the Presiding Judge
must comply with while stating his opinion to the appropriate
Government on an application for remission of sentence made by a
convict, it cannot be held that the expression “may” in the said
provision is not mandatory nor can it be left to the whims and
fancies of the appropriate Government either to seek or not to seek
the opinion of the Presiding Judge or the Court before which the
conviction had taken place.
52.4. In the instant case, what is interesting is that when
respondent No.3 - Radheshyam Bhagwandas Shah filed his
application for remission before the State of Maharashtra pursuant
to the order of the Gujarat High Court dated 17.07.2019, the State
of Maharashtra sought the opinion of the Special Judge at Mumbai
who gave a negative opinion. This was one of the reasons for
respondent No.3 to file the Writ Petition (Crl.) No.135 of 2022 before
this Court. However, subsequently, when a direction was issued by
this Court to the first respondent State of Gujarat to consider the
application for remission, the opinion of the local Sessions Court at
Dahod was obtained and the opinion of the Special Judge, Mumbai
where the trial had taken place was ignored . The Sessions Court at
Dahod obviously had not complied with the mandatory
requirements noted above under sub -section (2) of Section 432 of
the CrPC inasmuch as the opinion was not forwarded along with
reasons ha ving regard to the record of the trial as no trial had taken
place before the Sessions Court, Dahod . Further, the Presiding
Judge of the Sessions Court, Dahod also did not forward any
certified copy of the record of the trial. Moreover, learned Sessions
Judge at Dahod was also a member of the Jail Advisory Committee.
52.5. We further observe that t he Presiding Judge of the Court
before which the conviction happens can never be a Member of the
Jail Advisory Committee, inasmuch he is an independent authority
who should give his opinion on the application seeking remission
which is a mandatory requirement as per the requirement s of sub -
section (2) of Section 432 . In the instant case, the opinion given by
the District & Sessions Judge at Dahod is vitiated for two reasons :
firstly , because he was not the Presiding Judge before which the
conviction of respondent Nos.3 to 13 took place; and, secondly , if
the Presiding Judge of the Court where the conviction occurred is
an independent authority which must be consulted by the
appropriate Government then he c ould not have been a Member of
the Jail Advisory Committee as in the instant case .
52.6. On perusal of the counter affidavit of the respondent -State of
Gujarat, it is noted that pursuant to the applications filed by
respondent Nos. 4 to 13 (respondent No.3 had filed his application
before State of Maharashtra on 01.08.2019) seeking pre -mature
release or remission , opinion of the Special Judge (CBI), City Civil &
Sessions Court, Gr eater Mumbai was taken by the State of Gujarat
and in respect of all the respondent Nos.3 to 1 3 the categorical
opinion was that having regard to the Government’s Resolution
dated 11.04.2008, issued by the State of Maharashtra, said
prisoners should not be release d pre-maturely. Had the State of
Maharashtra considered the applications of respondent Nos.3 to 13
for remission, this vital opinion of the Presiding Judge of the Court
which had convicted them would have carried weigh t in the mind of
the Government of the State of Maharashtra as well as the terms of
the Government’s Resolution dated 1 1.04.2008 which was the
applicable policy for remission . In fact, the first respondent, namely,
the Government of the State of Gujarat , which usurp ed the power
of the Government of the State of Maharashtra , simply brus hed
aside the opinion of the Special Judge (CBI), Greater Mumbai .
Instead the opinion of the Sessions Judge, Godhra , District
Panchmahal within whose jurisdiction the offences had occurred
and who was a member of the Jail Advisory Committee was
highlighted by Sri S.V. Raju, learned ASG appearing for the State of
Gujarat. Although this opinion is also a negative opinion, the same
is not in accordance with sub-section (2) of Section 432 of the CrPC
and, therefore, is of no consequence except when viewed from the
prism of being an opinion of one of the members of the Jail Advisory
Committee, Dahod Jail.
53. As we have held , in the first place, the first respondent State
of Gujarat was not at all the appropriate Government, therefore, the
proceedings of the Jail Advisory Committee of Dahod Jail, which
had recommended remission is itself vitiated and further, there is
no compliance of sub -section (2) of Section 432 of the CrPC in the
instant case in as much as the said opinion was not considered by
the appropriate Government . On that score also, the orders of
remission dated 10.08.2022 are vitiated.
Sentence in default of fine:
54. Learned counsel Mrs. Shobha Gupta contended that
respondent Nos.3 to 13 had not paid the fine and therefore, in the
absence of payment of fine, the default sentence ought to have been
undergone by the said respondents. This aspect of the matter has
been lost sight of or ignored while granting the orders of remission
and therefore, the orders of remission are vitiated on that score.
54.1. In response to the above arguments, learned senior counsel ,
Sri Sidharth Luthra , at the outset , submitted that although
application s for payment of fine have been filed and are pending
consideration before this Court , nevertheless respondent Nos.3 to
13 have now on their own tendered the fine and the same has been
accepted by the Special Court at Mumbai.
54.2. In this regard, following judgments were referred to at the bar:
(a) In Shantilal vs. State of Madhya Pradesh, (2007) 11 SCC
243 (“Shantilal”) , the contention was that the term of
imprisonment in default of payment of fine is not a sentence. It is
a penalty which a person incurs on account of non -payment of fine.
This sentence must be undergone by the offender unless it is set -
aside or remitted in part or in whole, either in appeal or in revision
or in other appropriate judicial proceedings or otherwise. However,
a term of imprisonment ordered in default of paymen t of fine stands
on a different footing. A person is required to undergo imprisonment
for default in payment of fine either because he is unable to pay the
amount of fine or refuses to pay such amount. He, therefore, can
always avoid to undergo imprisonme nt in default of payment of fine
by paying such amount. It is, therefore, not only the power, but the
duty of the Court to keep in view the nature of offence, and
circumstances under which it was committed, the position of the
offender and other relevant considerations before ordering the
offender to suffer imprisonment in default of payment of fine.
(i) The further question considered was, whether, a Court of law
can order a convict to remain in jail in default of payment of
fine. It was observed that even in the absence of a specific
provision in the law empowering a Court to order imprisonment
in default of payment of fine, such power is implicit and is
possessed by a Court administering criminal justice. In this
regard, reference was made to Sections 40 to 42 and Sections
63 to 70 IPC as well as Section 30 of the CrPC which deals with
a sentence of imp risonment in default of payment of fine and
Section 25 of the General Clauses Act, 1897 which deals with
recovery of fine. It was observed that even in the absence of a
provision to the contrary viz. that no order of imprisonment can
be passed in default of payment of fine, such power is explicit
and can always be exercised by a court having regard to Section
30 of the CrPC.
(b) In Sharad Hiru Kolambe vs. State of Maharashtra, (2018)
18 SCC 718 (“Sharad Hiru Kolambe”), the point for consideration
was regarding quantum of fine that was imposed by way of a default
sentence in case of non -payment of fine. It was contended that
though the substantive sentence stood remitted and the appellant
was directed to be released on c ompletion of fourteen years of actual
sentence, the appellant would still be inside till he completes
twenty -four years. This was because the trial court in th e said case
directed “all sentences shall run concurrently”, therefore, all default
sentences must also run concurrently inter se . It was contended
that the default sentences so directed was unconscionable and
excessive.
(i) This Court speaking through Lalit, J. (as the learned Chief
Justice then was) observed that if the term of imprisonment in
default of payment of fine is a penalty which a person incurs
on account of non -payment of fine and is not a sentence in a
strict sense, imposition of such default sentence is completely
different and qualitatively distinct from a substantive sentence.
Theoretically, if the default sentences awarded in respect of
imposition of fine in connection with two or more offences are
to be clubbed or directed to run concurrently, there would not
be any occasion for the persons so sentenced to deposit the fine
in respect of the second or further offences. It would effectively
mean imposition of one single or combined sentence of fine.
Such an exercise would render the very idea of imposition of
fine with a deterrent stipulation while awarding sentence in
default of payment of fine to be meaningless. If imposition of
fine and prescription of mandatory minimum is designed to
achieve a speci fic purpose, the very objective will get defeated
if the default sentences were directed to run concurrently.
Therefore, the contention regarding concurrent running of
default sentences was rejected. It was observed that there is
no power of the Court to order the default sentence s to run
concurrently but if a prisoner does not pay the fine or refuses
to pay the fine then he must undergo the default sentence s so
imposed.
(c) In Shahejadkhan Mahebubkhan Pathan vs. State of
Gujarat, (2013) 1 SCC 570 (“Shahejadkhan Mahebubkhan
Pathan”), this Court speaking through Sathasivam, J. (as the
learned Chief Justice then was) held that the term of imprisonment
in connection with a fine is not a sentence but a penalty which a
person incurs on account of non -payment of fine . But on the other
hand, if a sentence is imposed, an offender must undergo the same
unless it is modified or varied in part or whole in the judicial
proceedings or by way of remission. But the imprisonment order in
default of fine stands on different footing . When such a sentence
on default of payment of fine is imposed, the person is required to
undergo imprisonment either because he is unable to pay the fine
or refuses to do so. The only way he can avoid to undergo
imprisonment in default of payment of fi ne is by paying such
amount.
54.3. The aforesaid dicta would therefore clearly indicate that the
sentence of imprisonment awarded to a person for committing an
offence is distinct than the imprisonment ordered to be undergone
in default of payment of fine. The latter is not a substantive
sentence for commission of the offence but is in the nature of
penalty for default in payment of fine.
54.4. In the instant case, while considering the applications for
remission, the Jail Advisory Committee did not take into
consideration whether respondent Nos.3 to 13 convicts had
tendered the fine which was imposed by the Special Court and
affirmed by the High Court as well as by this Court . Therefore, this
is an instance of leaving out of a relevant consideration from the
gamut of facts which ought to have been considered by the Jail
Advisory Committee. Had the respondent State of Gujarat
considered the opinion from the Presiding Judge of the Court which
had convicted, respondent No s.3 to 13 herein, the aspect regarding
non-payment of fine would have surfaced. In the absence of non -
compliance with the direction to pay fine, there would be default
sentence which would be in the nature of penalty. The question
whether the default sentence or penalty had to be undergone by
these respondents, was a crucial consideration at the time of
recommending remission to the State Government by the Jail
Advisory Committee. This aspect of the matter has also not been
taken into consideration by the State Government while passing the
impugned orders of remission. Realising this , during the pendency
of these writ petitions, applications were filed seeking permission to
tender the fine amount. However, even before the said applications
could be considered and orders passed thereon, the respondents
convicts have paid the fine amount and have produced receipts in
that regard . This fact would not alter the consideration of the case
of respondent Nos.3 to 13 herein inasmuch the fact of payment of
fine ought to have been a point which had to be taken into
consideration prior to the passing of the orders of remission as there
could be no relaxation in the sentence with regard to payment of
fine. There can only be reduction in the substantive sentence to be
undergone by way of imprisonment for which the application
seeking remission is filed. Remission of sentence , which is for
reduction of the period of imprisonment , cannot however rela te to
the payment of fine at all. Since there was non-application of mind
in this regard , the impugned orders of remission are contrary to law
and are liable to be quashed on this count as well .
In view of the above, the other contentions based on
Wednesbury principles do not require consideration in the present
case and hence all contentions on the said aspect are left open .
55. We however would like to indicate the factors that must be
taken into account while entertaining an application for remission
under the provisions of the CrPC, which are however not exhaustive
of the test s which we have discussed above. They can be
adumbrated as under:
(a) The application for remission under Section 432 of the
CrPC could be only before the Government of the State
within whose territorial jurisdiction the applicant was
convicted (appropriate Government) and not before
any other Government within whose territorial
jurisdiction the applicant may have been transferred
on conviction or where the offence has occurred.
(b) A consideration for remission must be by way of an
application under Section 432 of the CrPC which has
to be made by the convict or on his behalf. In the first
instance whether there is compliance of Section 433A
of the CrPC must be noted inasmuch as a person
serving a life sentence cannot seek remission unless
fourteen years of imprisonment has been completed.
(c) The guidelines under Section 432(2) with regard to the
opinion to be sought from the Presiding Judge of the
Court which had convicted the applicant must be
complied with mandatorily. While doing so it is
necessary to follow the requirements of the said
Section which are highlighted by us, namely ,
(i) the opinion must state as to whether the
application for remission should be granted or
refused and for either of the said opinions, the
reasons must be stated;
(ii) the reasons must have a bearing on the facts and
circumstances of the case;
(iii) the opinion must have a nexus to the record of
the trial or of such record thereof as exists;
(iv) the Presiding Judge of the Court before or by
which the conviction was had or confirmed, must
also forward along with the statement of such
opinion granting or refusing remission, a certified
copy of the record of the trial or of such record
thereof as exists.
(d) The policy of remission applicable would therefore be
the Policy of the State which is the appropriate
Government and which has the jurisdiction to
consider that application. The policy of remission
applicable at the time of the conviction could apply
and only if for any reason, the said policy cannot be
made applicable a more benevolent policy, if in vogue,
could apply.
(e) While considering an application for remission, there
cannot be any abuse of discretion. In this regard, it is
necessary to bear in mind the following aspects as
mentioned in Laxman Naskar , namely, -
(i) Whether the offence is an individual act of crime
without affecting the society at large?
(ii) Whether there is any chance of future
recurrence of committing crime?
(iii) Whether the convict has lost his potentiality in
committing crime?
(iv) Whether there is any fruitful purpose of
confining this convict any more?
(v) Socio -economic condition of the convict’s family.
(f) There has also to be consultation in accordance with
Section 435 of the CrPC wherever the same is
necessitated.
(g) The Jail Advisory Committee which has to consider
the application for remission may n ot have the District
Judge as a Member inasmuch as the District Judge,
being a Judicial Officer may coincidently be the very
judge who may have to render an opinion
independently in terms of sub -section (2) of Section
432 of the CrPC.
(h) Reasons for grant or refusal of remission should be
clearly delineated in the order by passing a speaking
order.
(i) When an application for remission is granted under
the provisions of the Constitution, the following
among other tests may apply to consider its legality by
way of judicial review of the same.
(i) that the order has been passed without
application of mind;
(ii) that the order is mala fide;
(iii) that the order has been passed on extraneous or
wholly irrelevant considerations;
(iv) that relevant materials have been kept out of
consideration;
(v) that the order suffers from arbitrariness.
Summary of Conclusions:
56. On the basis of the aforesaid discussion, we arrive at the
following summary of conclusions:
a) We hold that the Writ Petition (Crl.) No.491 of 2022 filed under
Article 32 of the Constitution before this Court is maintainable
and that it was not mandatory for the petitioner therein to have
filed a writ petition under Article 226 of the Constitution before
the Gujarat High Court.
b) Since Writ Petition (Crl.) No.491 of 2022 has been filed by one
of the victims invoking Article 32 of the Constitution before this
Court which has been entertained by us , the question ,
whether , the writ petitions filed as public interest litigation
assailing the impugned orders of remission dated 10.08.2022
are maintainable , is kept open to be raised in any other
appropriate case .
c) In view of Section 432 (7) read with Section 432 (1) and (2) of
the CrPC, we hold that the Government of the State of Gujarat
had no jurisdiction to entertain the prayers seeking remission
of respondent Nos.3 to 13 herein as it was not the appropriate
Government within the meaning of the aforesaid provisions.
Hence, the orders of remission dated 10.08.2022 made in
favour of respondent Nos.3 to 13 herein are illegal, vitiat ed and
therefore , quashed.
d) While holding as above, we also hold that the judgment dated
13.05.2022 passed by this Court is a nullity and is non est in
law since the said order was sought by suppression of material
facts as well as by misrepresentation of facts (suppressio veri,
suggestio falsi ) and therefore , fraudulently obtained at the
hands of this Court.
i) Further, the petitioner in Writ Petition (Crl.) No.491 of
2022 not being a party to the said writ proceeding, the
same is not binding on her and she is entitled in law to
question the order s of remission dated 10.08.2022 from all
angles including the correctness of the order dated
13.05.2022.
ii) In addition to the above, the said order , being contrary to
the larger bench decisions of this Court , (holding that it is
the Government of the State within which the offender is
sentenced which is the appropriate Government which can
consider an application seeking remission of a sentence ) is
per incuriam and is not a binding precedent . Hence, the
impugned orders of remission dated 10.08.2022 are
quashed on the above grounds .
e) Without prejudice to the aforesaid conclusions, we further hold
that the impugned orders of remission dated 10.08.2022
passed by the respondent -State of Gujarat in favour of
respondent Nos.3 to 13 are not in accordance with law for the
following reasons:
i) That the Government of the State of Gujarat
had usurped the powers of the State of
Maharashtra which only could have considered
the applications seeking remission. Hence, the
doctrine of usurpation of powers applies in the
instant case.
ii) Consequently, the Policy dated 09.07.1992 of
the State of Gujarat was not applicable to the
case of respondent Nos.3 to 13 herein.
iii) That opinion of the Presiding Judge of the Court
before which the conviction of respondent Nos.3
to 13 was made in the instant case i.e. Special
Court, Mumbai (Maharashtra) was rendered
ineffective by the Government of the State of
Gujarat which in any case had no jurisdiction
to entertain the plea for remission of
respondent Nos.3 to 13 herein. T he opinion of
the Sessions Judge at Dahod was wholly
without jurisdiction as the same was in breach
of sub -section (2) of the Section 432 of the
iv) That while considering the application s seeking
remission, the Jail Advisory Committee , Dahod
and the other authorities had lost sight of the
fact that respondent Nos.3 to 13 herein had not
yet paid the fine ordered by the Special Court,
Mumbai which had been confirmed by the
Bombay High Court. Ignoring this relevant
consideration also vitiated exercise of discretion
in the instant case.
56.1. Having declared and held as such, we now move to point No.5 .
Point No.5 : What Order?
57. Respondent Nos.4 to 13, who had made application s to the
first respondent -State of Gujarat seeking remission of their
sentences, have been granted remission by the impugned orders
dated 10.08.2022 , while it is not known whether respondent No.3
had made any application to seek remission to the State of Gujarat
as the same is not adverted to in the counter affidavit . The
application seeking remission by respondent No.3 before the State
of Gujarat has not been brought on record as he had filed his
application before the State of Maharashtra. Respondent Nos. 3 to13
have been released pursuant to the orders of remission dated
10.08.2022 and set at liberty. We have now quashed the orders of
remission. Since 10.08.2022, respondent Nos.3 to 13 have been the
beneficiaries of the orders passed by an incompetent authority
inasmuch as the impugned orders are not passed by the
appropriate Government within the meaning of Section 432 of the
CrPC . So long as the said order s impugned were not set -aside, they
had carried the stamp of validity and hence till date the impugned
orders of remission were deemed to have been valid. Respondent
Nos.3 to 13 are out of jail. Since we have quash ed the orders of
remission, what follows ?
58. In our view, the most important constitutional value is
personal liberty which is a fundamental right enshrined in Article
21 of our Constitution . It is in fact an inalienable right of man and
which can be deprived of or taken away only in accordance with
law. That is the quintessence of Article 21 . But, this is a case where
respondent Nos.3 to 13 have been granted liberty and have been
released from imprisonment by virtue of the impugned orders of
remission dated 10.08.2022 which we have declared and quashed
as wholly without jurisdiction and non est . Having quashed the
order s of remission made in favour of respondent Nos.3 to 13,
should they be sent back to prison ? Whether respondent No.3 to 13
must have the benefit of their liberty despite obtaining the same
from an incompetent authority with the aid of an order of this Court
obtained fraudulently and therefore, the same being illegal and
carry a stamp of being a nullity and non est in the eye of law ? This
has been a delicate question for consideration before us.
59. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022 has vehemently contended that there being failure
of rule of law in the instant case , justice would be done by this Court
only when respondent Nos.3 to 13 are returned to the prison . They
can be granted remission only in accordance with law . On the other
hand, respective learned senior counsel and counsel for the
respondents Nos.3 to 13 who have appeared have pleaded that they
have been enjoying liberty since 10.08.2022 and i n spite of there
being an y error in the orders of remission, although the orders of
remission may be quashed , by exercising jurisdiction under Article
142 of the Constitution , these respondents may not be subjected to
imprisonment once again and they may remain out of jail as free
persons . In other words, their liberty may be protected .
60. We have given our anxious thought to the aforesaid divergent
contentions. The primary question that now arises for our
consideration is this: when is liberty of a person protected? Article
21 of the Constitution states that no person shall be deprived of his
liberty except in accordance with law. Conversely, w e think that a
person is entitled to protection of his liberty only in accordance with
law. When a person’s liberty cannot be violated in breach of a law,
can a person’s liberty be protected even in the face of a breach or
violation of law? In other words, s hould rule of law prevail over
personal liberty of a person or vice-versa ? Further , should this
Court weigh in favour of a person’s freedom and liberty even when
it has been established that the same was granted in violation of
law? Should the scales of justice tilt against rule of law ? In
upholding rule of law are we depriving respondent Nos.3 to 13 their
right to freedom and liberty? We wish to make it clear that only
when rule of law prevails will liberty and all other fundamental
rights would prevail under our Constitution including the right to
equality and equal protection of law as enshrined in Article 14
thereof. In other words, whether liberty of a person would have any
meaning at all under our Constitution in the absence of rule of law
or the same being ignored or turned a blind eye ? Can rule of law
surrender to liberty earned as a consequence of its breach ? Can
breach of rule of law be ignored in order to protect a person’s liberty
that he is not entitled to?
61. Before we proceed further, we wish to reiterate what this
Court has spoken on the concept of rule of law through its various
judgments .
62. Rule of law means wherever and whenever the State fails to
perform its duties, the Court would step in to ensure that the rule
of law prevails over the abuse of the process of law. Such abuse may
result from, inter alia , inaction or even arbitrary action of protecting
the true offenders or failure by different authorities in discharging
statutory or other obligations in consonance with the procedural
and penal statutes. Breach of the rule of law, amounts to negation
of equality under Article 14 of the Constitution.
63. More importantly, rule of law means, no one, howsoever high
or low, is above the law; it is the basic rule of governance and
democratic polity. It is only through the courts that rule of law
unfolds its contours and establishes its concept. The concept of rule
of law is closely intertwined with adjudication by courts of law and
also with the consequences of decisions taken by courts. Therefore,
the judiciary has to carry out its obligations effectively and true to
the spirit with which it is sacredly e ntrusted the task and always in
favour of rule of law. There can be no rule of law if there is no
equality before the law; and rule of law and equality before the law
would be empty words if their violation is not a matter of judicial
scrutiny or judicial review and relief and all these features would
lose their significance if the courts don’t step in to enforce the rule
of law. Thus, the judiciary is the guardian of t he rule of law and the
central pillar of a democratic State. Therefore, the judiciary has to
perform its duties and function effectively and remain true to the
spirit with which they are sacredly entrusted to it.
In our view, this Court must be a beacon in upholding rule of
law failing which it would give rise to an impression that this Court
is not serious about rule of law and, therefore, all Courts in the
country could apply it selectively and thereby lead to a situation
where the judiciary is unmindful of rule of law. This would result in
a dangerous state of affairs in our democracy and democratic polity.
64. Further, in a democracy where rule of law is its essence, it has
to be preserved and enforced particularly by courts of law.
Compassion and sympathy have no role to play where rule of law is
required to be enforced. If the rule of law has to be preserved as the
essence of democracy, it is the duty of th e courts to enforce the
same without fear or favour, affection or ill -will.
65. The manner of functioning of the court in accord with the rule
of law has to be dispassionate, objective and analytical. Thus,
everyone within the framework of the rule of law must accept the
system, render due obedience to orders made and in the event of
failure of compliance, the rod of justice must descend down to
punish. It is mainly through the power of judicial review conferred
on an independent institutional authority such as the High Court
or the Supreme Court that the rule of law is maintained and every
organ of the State is kept within the limits of the law. Thus, those
concerned with the rule of law must remain unmindful and
unruffled by the ripples caused by it. Rule of law does not mean
protection to a fortunate few. The very existence of the rule of law
and the fear of being brought to book operates as a deterrent to
those who have no scruples in killing others if it suits their ends. In
the words of Krishna Iyer, J., “the finest hour of the rule of law is
when law disciplines life and match es promise with performance”.
In ADM, Jabalpur vs. Shivakant Shukla , H.R. Khanna, J. in his
dissenting judgment said, “rule of law is the antithesis of
arbitrariness”.
66. In this context, it would also be useful to refer to the notion of
justice in the present case. It is said that justice should remain loyal
to the rule of law. In our view, justice cannot be done without
adherence to rule of law. This Court has observed “the concept of
“justice” encompasses not just the rights of the convict, but also of
the victims of crime as well as of the law abiding section of society
who look towards the courts as vital instruments f or preservation
of peace and the curtailment or containment of crime by punishing
those who transgress the law. If the convicts can circumvent the
consequences of their conviction, peace, tranquility and harmony
in society will be reduced to chimera.” (vide Surya Baksh Singh
vs. State of UP, (2014) 14 SCC 222 )
67. This Court has further observed that the principle of justice
is an inbuilt requirement of the justice delivery system and
indulgence and laxity on the part of the law courts would be an
unauthorized exercise of jurisdiction and thereby, put a premium
on illegal acts. Courts have to be mindful of not only the spelling of
the word “justice” but also the content of the concept. Courts have
to dispense justice and not justice being dispensed with. In fact, the
strength and authority of courts in India are because they are
involved in dispensing justice. It should be their life aim.
68. The faith of the people in the efficacy of law is the saviour and
succour for the sustenance of the rule of law. Justice is supreme
and justice ought to be beneficial for the society. Law courts exist
for the society and ought to rise to the occasion to do the needful in
the matter. Respect for law is one of the cardinal principles for an
effective operation of the Constitution, law and the popular
Government. The faith of the people is the source to in vigorate
justice intertwined with the efficacy of law. Therefore, it is the
primary duty and the highest responsibility of this Court to correct
arbitrary orders at the earliest and maintain the confidence of the
litigant public in the purity of the founta in of justice and thereby
respect rule of law.
69. In the same vein, we say that Article 142 of the Constitution
cannot be invoked by us in favour of respondent Nos.3 to 13 to allow
them to remain out of jail as that would be an instance of this
Court’s imprimatur to ignore rule of law and instead aid persons
who are beneficiaries of order s which in our view, are null and void
and therefore non est in the eye of law. Further, we cannot be
unmindful of the conduct of respondent Nos.3 to 13, particularly
respondent No.3 who has abused the process of law and t he court
in obtaining remission. In such a situation , arguments with an
emotional appeal though may sound attractive become hollow and
without substance when placed in juxtaposition with our reasoning
on the facts and circumstances of this case. Therefore, in complying
with the principles of rule of law which encompasses the principle
of equal protection of law as enshrined in Article 14 of the
Constitution , we hold that ‘deprivation of liberty’ vis-à-vis
respondent Nos.3 to 13 herein is justified in as much as the said
respondents have erroneously and contrary to law been set at
liberty. One cannot lose sight of the fact that the said respondents
were all in prison for a little over fourteen years (with liberal paroles
and furloughs gr anted to them from time to time). They had lost
their right to liberty once they were convicted and were imprisoned.
But, they were released pursuant to the impugned remission orders
which have been quashed by us. Consequently, the status quo ante
must be restored . We say so for another reason in the event
respondent Nos.3 to 13 are inclined to seek remission in accordance
with law , they have to be in prison as they cannot seek remission
when on bail or outside the jail. Therefore, for these reasons we hold
that the plea of ‘protection of the liberty’ of respondent Nos.3 to 13
cannot be accepted by us.
70. We wish to emphasize that in the instant case rule of law must
prevail. If ultimately rule of law is to prevail and the impugned
orders of remission are set -aside by us, then the natural
consequence s must follow. Therefore, respondent Nos.3 to 13 are
directed to report to the concerned jail authorities within two weeks
from today.
Conclusion:
71. Consequently, we pass the following orders:
a. Writ Petition (Crl.) No.491 of 2022 is allowed in the
aforesaid terms.
b. Other Writ Petition s stand disposed of.
c. Pending applications, if any, stand disposed of.
72. Before parting, we place on record our appreciation of all
learned senior counsel, learned ASG and learned counsel appearing
for the respective parties for their effective assistance in the matter.
|
The Supreme Court on Monday quashed the Gujarat government's decision to allow premature release of convicts in the Bilkis Bano gangrape case [Bilkis Yakub Rasool v. Union of India and ors].[Bilkis Yakub Rasool v. Union of India and ors].
A bench of Justices BV Nagarathna and Ujjal Bhuyan held that the eleven convicts who were set free by the State, have to report back to the jail authorities within two weeks.
The convicts are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radheshyam Bhagwandas Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.
The Court said that the Gujarat government was not empowered to pass the remission order since appropriate government entitled to pass orders of remission was the government of the State where the trial had taken place which in this case was Maharashtra and not Gujarat.
"On competence of Gujarat government to pass remission orders, it is apparent that appropriate government had to take permission of the court before passing remission orders. This means that place of occurrence or place of imprisonment of convicts are not relevant for remission. The definition of appropriate government is otherwise. The intention of the government is that the State under whom the convict was tried and sentenced was the appropriate government. This places emphasis on the place of trial and rather than where the crime took place," the Court said.
It is not the government of the State within whose territory the offence has occurred which can pass the remission and thus, the order of remission has to be quashed, the bench held.
The Court in its judgment also strongly came down upon one of the convicts, Radhyesham, for playing fraud upon the Court by suppressing material facts and getting a favourable order from the top court in May 2022 which eventually led to the release of all the eleven convicts.
The Court said that the May 2022 judgment was obtained by fraud and therefore, not good in law.
The Court also came down upon the Gujarat government for not filing a review plea against the May 2022 judgment and instead being complicit and acting in tandem with the convicts and usurping the Maharashtra government's jurisdiction to grant remission to convicts.
"It was the State of Maharashtra who could have only passed the remission orders respondent no 3 surreptitiously filed the plea before the Supreme Court. Taking advantage of May 13, 2022 order of this Court, other convicts also filed remission applications and the Gujarat government passed remission orders...Gujarat was complicit and acted in tandem with respondent no. 3 in this case. This Court was misled by suppressing facts. Use of power by Gujarat was only an usurpation of power by the State," the apex court ruled.
On the conundrum of sending the convicts back to the jail, the Court held that rule of law has to prevail over the liberty of the convicts.
"Rule of law does not mean protection to a fortunate few. In ADM Jabalpur, Justice Khanna had said rule of law is the antithesis to arbitrariness. We hold justice cannot be done without adherence to the rule of law," the Court opined.
If that is not the case then such orders of the court would be reduced to chimera. Courts have to dispense justice and not allow justice to be dispensed with, the bench underlined.
"We hold that deprivation of liberty to the respondents is justified. They have lost their right to liberty once they were convicted and imprisoned. if they want to seek remission in accordance with law then they have to be in jail. Rule law must prevail. Thus, all respondents are directed to report to jail authorities within two weeks," the bench ordered.
The judgment came in a batch of petitions challenging the remission granted to the convicts in the case.
The case concerns the early release of 11 convicts who had gang raped Bano and murdered her family members during the riots.
The convicts who were set free by the State are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.
The Gujarat government had granted a remission of their sentence following a May 2022 judgment in which the top court held that an application of remission should be considered in line with the policy of the State where the crime was committed and not where the trial was held.
Pursuant to that judgment, the Gujarat government had applied its remission policy to release the convicts though the trial in the case had taken place in Maharashtra.
But the top court in its verdict today noted that the May 2022 judgment came in an Article 32 petition filed by one of the convicts (respondent no. 3) after his petition was dismissed by the Gujarat High Court which said that the Maharashtra government will have to consider the plea for remission.
He then filed a remission application in Maharashtra and presiding judge of trial and DGP Maharashtra had given their opinion on it.
Meanwhile, he moved the Supreme Court suppressing these facts and the Supreme Court passed a judgment in his favour opining that the Gujarat government was the appropriate government
"If respondent 3 was aggrieved by Gujarat High Court order of 2019 he could file an appeal here. But he did not do so. He moved Maharashtra for remission. When the opinion on remission there was negative, he moved the Supreme Court. Thus, he played fraud on this court. High Court order could not be set aside in an Article 32 plea," the Court underscored.
Since the May 2022 judgment was obtained by playing fraud upon the Court, it was held to be non est in law.
Gujarat Additional Chief Secretary (Home) Raj Kumar had reportedly said that the convicts were released due to the “completion of 14 years” in jail and other factors such as “age, nature of the crime, behaviour in prison and so on”.
The Gujarat government's decision was challenged by various petitioners including Bano before the top court.
Follow our coverage of the case here.
|
ivil Appeal No. 2 107 of 1979.
From the Judgment and order dated 22.9.
1978 of the Allahabad High Court in C.M.W. No. 3857 of 1978.
Gobinda Mukhoty, Ali Ahmad, Mrs. Jayshree Ahmad, Tanveer Ahmad, S S Hussain for the appellants.
R.K. Garg and D.K. Garg for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a tenant 's appeal by special leave.
After perusing the judgment impugned and grounds urged, we are of the opinion, that there is no substance in this appeal 843 On merit, though there are one or two technical breaches.
This is certainly not a decision which should be interfered with in the exercise of jurisdiction under Article 136 of the Constitution by this Court.
The appeal arises from the judgment and order dated 22nd September, 1978 of the High Court of Allahabad The respondent No. 2 herein, Smt.
Murtaza Begum filed an application under section 3 of the U.P Temporary) Control of Rent and Eviction Act, 1947 being U.P. Act No. 3 of 1947, hereinafter called the old Act, against the appellants Section 3 of the said Act provides that subject to any order passed under sub section (3) of that section, no suit shall, without the permission of the District Magistrate be filed in any court against any tenant for his eviction from any accommodation except on the grounds mentioned therein.
Sub section (2) of section 3 provided for revision to the Commissioner against the order of the District Magistrate Subsection (3) of section 3 empowered the Commissioner to hear the application and if he was not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate or as to regularity of proceedings held before him, alter or reverse his order or make such other order as might be just and proper.
By sub section (4) of section 3 the order of the Commissioner has been made final subject to any other order passed by the State Government under section 7 of the said Act.
Section 7 F of the said Act empowered the State Government to call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to and authorised him to make such order as appeared to it necessary for the ends of justice.
The application for eviction was granted by the Commissioner in this case on the 17th April, 1971.
The appellants went in revision to the State Government.
The revision was, however, rejected by the State Government on 7th February, 1972 The permission thereafter became final.
In pursuance of the aforesaid permission the respondent landlord filed a suit being suit No 464 of 1972 in the court of Judge, Small Causes, Meerut for eviction of the appellants Thereafter in 1973 the landlord filed an application for withdrawal of the suit on the ground that as U P Urban Buildings (Regulation of Letting Rent and Eviction) Act of 972 being U P Act no 3 of 972.
hereinafter called the New Act, had been amended, he would file an application for the enforcement of the permission obtained under section 3 of the old Act.
On that application the court found that as the cause of action on which the suit had been filed was rendered infructuous, the suit was liable to be dismissed.
After the suit was dismissed, the landlord being respondent no 2 herein filed an application under 844 section 43(2)(rr) of the New Act for eviction of the appellants from the premises in question.
It was resisted on the ground that the permission had been dismissed and the application under section 43(2)(rr) was not maintainable.
The Prescribed Authority upheld the said objection of the appellants and rejected the application filed by the landlord on the ground that since permission obtained by the landlord under section 3 of the U.P. Act has been exhausted, the application filed by the landlord was not maintainable.
It appears to us that the Prescribed Authority was clearly in error in so holding because the permission granted had not been exhausted because the suit as dismissed on a technical plea and not on the merit of the contentions Reference may be made to the observations in the decision of the Allahabad High Court in the case of Pahlad Das vs Ganga Saran and Another, AIR 1958 Allahabad 774, where the division bench of that court held that the obvious purpose of the permission under section 3 of the old Act was to enable the plaintiff, the landlord to evict the tenant from the premises and as long as that purpose was not fulfilled, the permission could not obviously exhaust itself Where it was not shown that the permission was granted to file a single suit or that it had been specified in it that a second suit could not be filed, the permission could not exhaust itself simply because the first suit filed on its basis was dismissed on some technical ground and the permission obtained could be availed of for filing the second suit.
In that view, the High Court affirmed the previous decision of that court.
It appears, however, that an appeal was filed against the order of the Prescribed Authority and the appeal was allowed by the order of the District Judge dated 28th April, 1978.
Aggrieved thereby the tenants filed a writ petition before the High Court.
The controversy in the High Court was whether the application filed by the landlord under section 43(2)(rr) of the New Act was not maintainable.
The basis of the claim of the tenant was that as the permission had been utilised by filing the suit, another proceeding on the basis of the said permission could not be initiated The High Court noted that section 43(2)(rr) was added by U.P. Act No. 37 of 1972.
By the addition of the new provision, the legislature conferred a right on a landlord who had obtained permission under the old Act and had filed an application under new provision to get the tenant evicted.
Section 43(2)(rr) of the New Act was again amended by the U.P. Act No. 28 of 1976.
By that amendment the words "whether or not a suit for the eviction of the tenant has been instituted" were inserted.
The amending Act laid down that the amendment in the provision shall be deemed to have always been substituted.
In other words, the amendment caused amendment to be retrospective in operation.
845 It is, therefore, apparent as the High Court in our opinion in the judgment under appeal rightly held that section 43(2)(rr) i.e. in 1973 permitted the landlord to file an application for the enforcement of the permission obtained by him.
After the aforesaid provision was amended, the landlord was not required to file a suit to avail of the permission.
The High Court in the judgment under appeal rejected the contention that once an application for permission had been filed, the second application would not lie.
The High Court held that where the first suit was not decided on merits subsequent action was not precluded.
The High Court noted that merits of the case were not examined by the Court.
The Court in this appeal on this occasion did not find that the permission obtained by the landlord was invalid or illegal.
The judgment of dismissal was thus on technical ground and not on merits.
The High Court held that the landlord had right to file the second application.
In our opinion, the High Court was right for the reasons mentioned hereinbefore.
It is next contended that since the suit was dismissed on the ground that the cause of action did not survive to the landlord, it should be held that the landlord had no right left to file an application under section 43(2)(rr).
This was, in our opinion, rightly rejected by the High Court.
The High Court negatived the contention of the tenant that dismissal of the first action taken by the landlord after obtaining permission under the old Act precluded the landlord from taking the second action under section 43(2)(rr) of the Act.
We are of the opinion that the High Court was right.
It will be appropriate at this stage to refer to the provisions of section 43(2)(rr) or the New Act which are as follows: "Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in subsection (1) or sub section (2) of Section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub section, after the commencement of this Act, (whether or not a suit for the eviction of the tenant has been instituted), the landlord may apply to the prescribed authority for his eviction under Section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall 846 not be open to appeal under Section 22: Provided that no application under this clause.
shall be maintainable on the basis of a permission granted under Section 3 of the old Act, where such permission became final more than three years before the commencement of the Act: Provided further that in computing the period of three years, the time during which the applicant has been prosecuting with due diligence any civil proceeding whether in a court of first instance or appeal or revision shall be excluded.
In view of the aforesaid, we are of the opinion that the Prescribed Authority was clearly in error in upholding the objection of the tenant that as the previous suit had been filed by the tenant on the basis of permission and the same had been dismissed, the application under section 43(2)(rr) of the Act 13 of 1972, was not maintainable.
It was clearly erroneous contention.
It would frustrate the very purpose of the express provision of section 43(2)(rr).
Finality of order in judicial proceeding is one of the essential principles which the scheme of the administration of justice, must strive for.
See in this connection the observations of D.K Soni vs P.K. Mukherjee & Ors., (Civil Appeal No. 6626/83 Judgment dated 27.
10. 1987).
It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge.
The High Court accepted this contention.
The High Court finally held that though no appeal lay before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge.
On that ground the High Court declined to interfere with the order of the learned District Judge.
It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the order of the Prescribed Authority could not be set aside.
But the High Court was exercising its jurisdiction under Article 226 of the Constitution.
The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper.
The High Court itself could have set it aside.
Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper.
If we reiterate the order of 847 the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken.
As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, on objection can be taken.
In the premises there is no scope for interference under Article 136 of the Constitution.
Our attention was drawn to certain observations of this Court about the power of the State Government under section 7 F of the old Act in Shri Bhagwan and Anr.
vs Ram Chand and Anr.
, [ ; In the view, we have taken of the facts of this case, it is not necessary to deal with this decision in any detail.
In the aforesaid view of the matter, this appeal must fail and is accordingly dismissed.
In the facts and circumstances of the case, we however, make no order as to costs.
P.S.S. Appeal dismissed.
|
% Sub section (1) of section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 barred suits without the permission of the District Magistrate against tenants for eviction except on the grounds mentioned therein.
Sub section (2) provided for revision to the Commissioner, and sub section (4) made the order of the Commissioner final.
Section 7 F empowered the State Government to interfere with such orders.
That Act was repealed by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Section 43(2)(rr) of the new Act, inserted therein by U.P. Act 37 of 1972, provided that where any permission obtained under section 3 of the old Act had become final either before the commencement of the Act or in accordance with the provisions of the sub section after the commencement of the Act, the landlord may apply to the Prescribed Authority for tenant 's eviction.
This section was against amended in 1976 by insertion of the words "whether or not a suit for the eviction of the tenant has been instituted", and giving it retrospective operation.
The order of the Prescribed Authority in such cases was made final.
The landlord 's application under section 3 of the 1947 Act for eviction 'of the tenants appellants was granted by the Commissioner in April, 197I.
The revision preferred by them was rejected by the State Government in February, 1972 and the permission became final.
In pursuance 841 Of the said permission the landlord filed a suit for eviction of the appellants.
Thereafter in 1973 he filed an application for withdrawal of the said suit on the ground that as the 1972 Act had been amended, he would file an application for enforcement of the permission.
The Court of Small Causes found that as the cause of action on which the suit had been filed was rendered infructuous, the suit was liable to be dismissed.
The application filed by the landlord under section 43(2)(rr) of the new Act for eviction of the appellants, was rejected by the Prescribed Authority on the ground that since permission obtained under section 3 of the old Act had been exhausted, the application was not maintainable.
An appeal against that order was allowed by the District Judge.
In the writ petition filed by the appellants tenants under article 226 of the Constitution it was contended that the permission obtained by the landlord having been utilised by filing the suit, another proceeding on the basis of the said permission could not be initiated, and that no appeal lay from the decision of the Prescribed Authority to the District Judge.
The High Court held that the landlord had right to file the second application.
It took the view that dismissal of the first action taken by the landlord after obtaining permission under the old Act did not preclude him from taking the second action under section 43(2)(rr) of the Act.
It further held that since the first suit was not decided on merits subsequent action was not precluded.
Dismissing the appeal by special leave, ^ HELD: 1.
Section 43(2)(rr) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 as it stood in 1973, permitted a landlord to file an application for the enforcement of the permission obtained by him under section 3 of the 1947 Act.
After the aforesaid provision was amended in 1976, the landlord was not required to file a suit to avail of the permission.
The amendment was retrospective in operation.
[844G H] 2.
The Prescribed Authority was in error in taking the view that as the previous suit had been filed by the landlord on the basis of permission and the same had been dismissed, the application under section 43(2)(rr) of the 1972 Act was not maintainable.
Such a view would frustrate the very purpose of the express provision of the section which conferred a right on a landlord who had obtained permission under the old Act and has filed an application under the new provision, to get the 842 tenant evicted.
More so, when the permission granted had not been exhausted because the suit was dismissed on a technical plea and not on the merit of the contentions.
[846C D; 845C] Pahlad Das vs Ganga Saran and Another, AIR 1958 Allahabad 774, approved.
3.1 Finality of order in judicial proceeding is one of the essential principles which the scheme of the administration of justice must strive for.
[846D] D.K. Soni vs P.K. Mukherjee & Ors.
C.A. No. 6626 of 1983 decided on October 27, 1987.
referred to. 3.2 In the instant case, through no appeal lay before the District Judge, the High Court came to the conclusion that the order of the Prescribed Authority was invalid and improper.
On that ground it declined to interfere with the order of the District Judge in exercise of its jurisdiction under article 226 of the Constitution.
Since justice has been done by setting aside the improper order of the Prescribed Authority, no exception can be taken to the order of the High Court.
There is, therefore, no scope for interference under article 136 of the Constitution.
[847A B] 1 Shri Bhagwan and Anr.
vs Ram Chand and Anr., ; , inapplicable.
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1. The petitioner challenges the legality and validity of the
rejection order passed by the Director of Elementary
Education, Orissa dated 14.02.2022 for Inter-District
transferring and prays for quashing of the same on the
ground that no inter seniority can be fixed on the basis of
date of birth of the employees instead of their valid date of
joining.
2. The petitioner was initially appointed as a Sikshya Sahayak
on 02.04.2011 and posted under DI. Jharsuguda. As per the
office order dated 07.05.2018 of the DEO, Jharsuguda the
service of the petitioner was regularized as Level-V Asst.
Teachers. Additionally, he is a locomotor disabled person
having 70% permanent disability and also a bronchial
asthmatic patent with congenital kyphoscoliosis with
reversibility - 91% and require frequent medical treatment.
3. Shorn of unnecessary details, the substratum of the matter
presented before this court remain that in terms of the
guideline issued by the Govt., the petitioner made necessary
representation to the Director through DEO for his inter
district transfer from present place of posting to
Kundaposhi U.G.U.P School, Kuchinda under BEO,
Kuchinda, Sambalpur district which is nearby to his native
place and such representation was duly recommended by
the DEO, Jharsuguda to the Director vide letter no. 2550
dated 13.07.2020.
4. Thereafter the Director, Elementary Education sought
clarification from the Govt. vide letter dated 18.12.2020 and
in response to the letter of the Director the Govt. vide letter
date 01.02.2021 clearly directed the Director to examine the
case as per the guidelines and if applicable resubmit the
proposal with views after due certification of the disability
by the State Medical Board.
5. After getting the letter from the Govt. the Director requested
the Chief Medical and Public Health Officer to examine the
petitioner and issue Disable certificate afresh for his inter
district transfer. The Chief Medical and Public Health
Officer, Cuttack vide letter date 29.04.2021 intimated the
Director that the petitioner is 70% permanent disabled
person.
6. Thereafter, the petitioner approached this Court by filing a
writ application bearing W.P. (C) No.28177/2021 with a
prayer for his inter district transfer and this Court vide
order dated 23.09.2021 directed the Director of Elementary
Education, Orissa, to look into the matter and take decision,
taking into consideration the plea taken in the writ petition
and the recommendation therein within a period of 6 weeks.
Citing non-compliance, the petitioner filed a contempt
application bearing CONTC No. 7110/2021 on 29.11.2021,
which is under jurisdiction of the Hon'ble Court for
admission.
7. Subsequently, the Director rejected the claim of the
petitioner for inter district transfer vide office order dated
14.02.2022. While admitting the percentage of disability, the
Director rejected the claim of the petitioner for inter district
transfer by referring to 1997 Rules, as amended and read
with the Govt. Notification dated 04.10.2018 i.e. the
Guideline for Inter District transfer read with the
notification dated 17.05.2016 issued by the Health and
Family welfare Department without considering the other
resolution annexed in the earlier Writ Petition.
II. Submissions of the petitioner
8. Learned counsel for the petitioner submitted that
admittedly there was recommendation by the DEO under
Annexure-3 series. He admitted that the Government
directed the Director under Annexure-5 to examine the
matter as per the guideline and resubmit the proposal with
his views after due certification of the disability by State
Medical Board for consideration. He further admitted that
the Medical Board granted fresh Disability Certificate and
the same was again recommended to Govt. vide letter dated
9. It is also admitted in the impugned order that the Govt.
notification dated 04.03.2018 is governing the field. So far as
inter-district transfer and Clause- L of the said guideline
which clearly spells out that "the transfer cases of persons
with disability shall be considered on the basis of
certification of the disability by the State Medical Board, but
the above facts has not been considered by the Director
while rejecting the claim nor seeking any clarification from
the Government in that regard. In fact, without application
of mind by invoking the clause meant for mutual transfer or
transfer on the ground of disease prescribed vide resolution
dated 17.09.2016 of Health and Family Welfare Department,
has rejected the claim.
10. Learned Counsel further submitted that Clause-6 (d) of the
notification dated 17.05.2016 issued by Health and Family
Welfare Department also permits for such transfer. It is
further submitted that the Clause 16 of the resolution of GA
Department dated 03.12.2013 also permits inter district
transfer which has not been considered. He submitted that
the Director also failed to take a note of the resolution dated
25.02.2021 of the Department of Social Security and
Empowerment of Persons with Disability where clause-17
underlined that the employees with disability should be
posted or transferred as far as possible nearer to his native
place.
11. Moreover, there is no bar under 1977 Rules for inter-district
transfer. Rather as per the Govt. notification dated
04.10.2018 inter district transfer is permissible and in view of
the provision of Right of Persons with Disability Act, 2016,
read with the Government Notification (supra) the
petitioner’s request which is for inter district transfer is
permissible and the rejection order passed by the Director is
not only erroneous but also an instance of clear non
application of mind.
III. Submission on Behalf of the Opposite party-1
12. Learned Counsel for the Opposite Parties submitted that as
per the provision of Odisha Elementary Education (Method
of Education (Method of Recruitment and Conditions of
Service of Teachers and Officers) Amendment Rules, 2014
and Odisha Elementary Education (Method of Recruitment
and Conditions of Service of Teachers and Officers)
Amendment Rules, 2019, the service of the petitioner falls
under District cadre and as per the said District cadre the
petitioner's service is confined to Jharsuguda district only
and there is no rule governing in the field for his transfer to
the district of his choice i.e. Sambalpur and the same is not
permissible other than his online application for transfer as
per the aforesaid principles as laid down in para-7 of the
present petition under Annexure-A/4.
13. Moreover, the petitioner had never submitted online
application. It is needless to mention here that as per the
prevailing rule, the inter district transfer of the petitioner
from Kolbira Block of Jharsuguda district to Kuchinda Block
of Sambalpur district is eligible to be taken into
consideration only based on the procedures as laid down in
the Notification No.22167/SME dated 04.10.2018 issued by
the Department of School and Mass Education. However,
since the district cadre of the petitioner's service is confined
to Jharsuguda district, hence the said transfer cannot be
given effect to.
14. It is humbly submitted that as per the guidelines for Inter-
district transfer and mutual transfer/ Intra-District transfer
Rationalisation of Headmasters Asst. Teachers Asst.
Teachers (Ex cadre) Jr. Teachers/ Junior Teachers
(Contractual) and Gana Sikhyaks of Government
Elementary Schools in the State vide Notification No.
22167/S&ME dated 04.10.2018 at para-2 (c) prescribes that
Inter-District Transfer of elementary cadre teachers will only
be considered on mutual ground or ground of terminal
illness of self, subject to conditions laid down in this
guidelines. But in the instant case, the prayer made by the
petitioner for inter district transfer either on mutual ground
or ground of terminal illness of self. Thereby, the case of the
petitioner so far as inter district transfer is concerned cannot
be considered as per the New Transfer Policy of the
Government dated 04.10.2018. Besides para-2 (a) of the
notification dated 04.10.2018 which spells out that "the
transfer process shall be conducted only in online mode on a
computer-based Programme". But in the instant case the
petitioner never chose to made application through online,
as a result of which, his case could not come to the zone of
consideration before the transfer Committee constituted for
this purpose. However, pursuant to direction of this Court
the off-line application was also duly considered by the
authority and rejected rightly.
15. The Supreme Court as well as High Courts through several
judgments have iterated that the differently abled persons
deserve sympathetic consideration and also need attention
of authorities while undertaking transfers. In order to
ensure that the transfers are taken up in a transparent and
rational manner with utmost priority to public interest and
appropriate consideration of human difficulties as far as
practicable, the respective state governments should
formulate appropriate guidelines in respect of the same.
Therefore, the first and foremost, it is necessary to look at
the state guidelines. The Govt. notification dated 04.03.2018
provides Guidelines for Inter-District Transfer & Mutual
transfer / Intra-District transfer / Rationalisation of
Teachers/ Junior Teachers (Contractual) and Gana Sikhyaks
of Govt. Elementary Schools in the State. Clause- L of the
(l) The transfer cases of Persons with Disabilities (PwD)
shall be considered on the basis of certification of the
disabilities by the State Medical Board.
16. Resolution dated 25.02.2021 of the Department of Social
Security and Empowerment of Persons with Disability deals
with the reservations for the Persons with Disabilities.
Clause 17 provides that:
17. Posting or transfer of employees with
disabilities.- (1) The employees with disabilities should
preferably be posted or transferred near to their native
places or at least in their native Districts subject to
administrative constraints.
(2) The Government employees having children or
spouse with disabilities should be posted or transferred
to such places where facilities of health or education or
vocational training are available.
(3) Persons with Disabilities may be given posting
according to their choice, if possible.
17. The Gujarat High Court in the case of Dipika Kantilal
Shukla vs State Of Gujarat1, held that the state has to act
within the guidelines framed by them, otherwise it will
remain nothing more than an empty formality on paper. It
was further held that:
“This court is conscious of the legal position that an
employer has the right to transfer its employees in the
interest of the administration and in public interest,
since transfer is an incidence of service. However, when
the employer itself has framed certain guidelines for
certain categories of employees, with a clear intention,
then the action of the concerned authorities should have
a reasonable nexus with the objectives sought to be
achieved. It is expected that the respondents will act
within the guidelines framed by them, otherwise it will
remain nothing more than an empty formality on paper.
The very objective of framing the policy will be defeated
in its implementation, which will result in arbitrariness
and discrimination, resulting in violation of Article 14
of the Constitution of India.”
18. Similarly, Hon’ble Supreme Court in the case of State Of
U.P. And Ors. vs Gobardhan Lal2 iterated the importance of
adherence to the administrative guidelines.
“It is too late in the day for any Government Servant
to contend that once appointed or posted in a
particular place or position, he should continue in
such place or position as long as he desires. Transfer
of an employee is not only an incident inherent in the
terms of appointment but also implicit as an essential
condition of service in the absence of any specific
indication to the contra in the law governing or
conditions of service. Unless the order of transfer is
shown to be an outcome of a mala fide exercise of
power or violative of any statutory provision (an Act
or Rule) or passed by an authority not competent to
do so, an order of transfer cannot lightly be interfered
with as a matter of course or routine for any or every
type of grievance sought to be made. Even
administrative guidelines for regulating transfers or
containing transfer policies at best may afford an
opportunity to the officer or servant concerned to
approach their higher authorities for redress but
cannot have the consequence of depriving or denying
the competent authority to transfer a particular
officer/servant to any place in public interest and as is
found necessitated by exigencies of service as long as
the official status is not affected adversely and there is
no infraction of any career prospects such as
seniority, scale of pay and secured emoluments. This
Court has often reiterated that the order of transfer
made even in transgression of administrative
guidelines cannot also be interfered with, as they do
not confer any legally enforceable rights, unless, as
noticed supra, shown to be vitiated by mala fides or is
made in violation of any statutory provision.”
19. Additionally, Madhya Pradesh High Court in the case of
Kamlesh Sharma vs The State Of Madhya Pradesh3 while
dealing with the case of transfer of persons with disabilities
held that the legislation is in furtherance of international
commitments and to give an equal treatment to persons
with disability.
“It has to be appreciated that once a person is certified
with permanent disability of more than 40% and is,
thus, covered under the provisions of the said Act, this
aspect is not germane. There is no doubt that the
appellant is only to be considered for transfer to a
proximate place to his native place, but the guidelines
of 1988 make it clear that such request is to be accepted
unless in case of administrative exigency otherwise.
In matters of transfer, this Court does not sit as a court
of appeal. However, where the very basis is erroneous,
this Court is entitled to intervene. Totally irrelevant
factors have been taken into account as stated above
and the provisions of statutory enactment like the said
Act, the said Rules and the Office Memorandum issued
in furtherance thereof are sought to be defeated. One
cannot lose sight of the fact that the legislation is in
furtherance of international commitments and to give
an equal treatment to persons with disability. All this
has been given a go- bye while rejecting the request of
the appellant and the Bank insists on implementing the
erroneous decision. In such a case, this Court cannot be
powerless to remedy the situation.”
20. Hence, it may be concluded that the bar under 1977 rules for
inter district transfer shall not be applicable on a person
with disability. Moreover, in view of provision of Right of
Persons with Disability Act, 2016, read with the Govt.
Notification (supra) permits inter district transfer of a
person with disability. Therefore, the rejection order vide
office order dated 14.02.2022 passed by the Director is
hereby quashed. The Director is hereby directed to complete
the transfer process within a period of THREE months.
21. The Writ Petition is, accordingly, disposed of.
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In an important decision, which can be tagged as a remarkable quantum leap in the field of disability jurisprudence, the Orissa High Court has held that bar against 'inter-district transfer' cannot be made applicable to teachers who are recognised as persons with disabilities. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed, "The Supreme Court as well as High...
In an important decision, which can be tagged as a remarkable quantum leap in the field of disability jurisprudence, the Orissa High Court has held that bar against 'inter-district transfer' cannot be made applicable to teachers who are recognised as persons with disabilities. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed,
"The Supreme Court as well as High Courts through several judgments have iterated that the differently abled persons deserve sympathetic consideration and also need attention of authorities while undertaking transfers. In order to ensure that the transfers are taken up in a transparent and rational manner with utmost priority to public interest and appropriate consideration of human difficulties as far as practicable, the respective state governments should formulate appropriate guidelines in respect of the same."
Facts of the Case:
The petitioner made a representation to the Director, Elementary Education through DEO for inter-district transfer from his incumbent place of posting to Kundaposhi U.G.U.P School, Kuchinda under BEO, Kuchinda, Sambalpur district which is nearby to his native place and such representation was duly recommended by the DEO, Jharsuguda to the Director.
However, the Director rejected the claim of the petitioner for inter-district transfer through an office order dated 14.02.2022. While admitting the percentage of disability (which was found to be 70% permanent disability), the Director rejected the claim of the petitioner for inter-district transfer by referring to 1997 Rules, as amended and read with the Govt. Notification dated 04.10.2018 i.e. the Guidelines for Inter-District transfer read with the notification dated 17.05.2016 issued by the Health and Family welfare Department. Aggrieved by such rejection, the petitioner approached the High Court through this writ petition.
Contentions of the Petitioner:
Mr. Dillip Kumar Mohapatra, counsel appearing for the petitioner, pointed out that in the impugned order, the Govt. notification dated 04.03.2018 is governing the field. Clause- L of the said guideline clearly spells out that "the transfer cases of persons with disability shall be considered on the basis of certification of the disability by the State Medical Board". However, he contended that the above facts have not been considered by the Director while rejecting the claim and he did not even seek any clarification from the Government in that regard. Without application of mind, by invoking the clause meant for mutual transfer or transfer on the ground of disease prescribed vide resolution dated 17.09.2016 of Health and Family Welfare Department, he rejected the claim.
Clause 6(d) of the notification dated 17.05.2016 issued by Health and Family Welfare Department also permits for such transfer. It was further submitted that the Clause 16 of the resolution of General Administration Department dated 03.12.2013 also permits inter-district transfer which was not considered. He submitted that the Director also failed to take a note of the resolution dated 25.02.2021 of the Department of Social Security and Empowerment of Persons with Disability where clause-17 underlined that the employees with disability should be posted or transferred as far as possible nearer to their native places.
Moreover, he stressed that there is no bar under 1977 Rules for inter-district transfer. Rather, as per the Govt. notification dated 04.10.2018 inter-district transfer is permissible and in view of the provision of Right of Persons with Disability Act, 2016, read with the Government Notification (supra) the representation of the petitioner, which was for inter district-transfer, was permissible and the rejection order passed by the Director was not only erroneous but also an instance of clear non-application of mind.
Contentions of the Respondents:
Mr. Sonak Mishra, Standing Counsel submitted that as per the provision of Odisha Elementary Education (Method of Education, Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2014 and Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2019, the service of the petitioner falls under District cadre and as per the said District cadre, the petitioner's service is confined to Jharsuguda district only and there is no rule governing in the field for his transfer to the district of his choice i.e. Sambalpur and the same is not permissible.
It was also submitted that as per the guidelines inter-district transfer of elementary cadre teachers will only be considered on mutual ground or ground of terminal illness of self, subject to conditions laid down in the guidelines. But in the instant case, the prayer made by the petitioner was neither for inter-district transfer nor on mutual ground or ground of terminal illness of self. Thereby, it was argued, the case of the petitioner so far as inter-district transfer is concerned cannot be considered as per the New Transfer Policy of the Government dated 04.10.2018.
Apart from that, para-2 (a) of the notification dated 04.10.2018 which spells out that "the transfer process shall be conducted only in online mode on a computer-based Programme" was also highlighted. As in the present case, the petitioner never made application through online mode, it was contended, his case could not come to the zone of consideration before the transfer Committee constituted for the purpose.
Court's Observations:
The Court made reference to the aforesaid State guidelines and also to the decision of the Gujarat High Court in Dipika Kantilal Shukla v. State of Gujarat, wherein it was held that the state has to act within the guidelines framed by them, otherwise it will remain nothing more than an empty formality on paper. Reference was also made to the decision of Madhya Pradesh High Court in Kamlesh Sharma v. The State Of Madhya Pradesh, therein while dealing with the case of transfer of persons with disabilities, the Court acknowledged a legislation which was enacted in furtherance of international commitments and to give an equal treatment to persons with disability.
Consequently, the Court concluded,
"Hence, it may be concluded that the bar under 1977 rules for inter district transfer shall not be applicable on a person with disability. Moreover, in view of provision of Right of Persons with Disability Act, 2016, read with the Govt. Notification (supra) permits inter district transfer of a person with disability. Therefore, the rejection order vide office order dated 14.02.2022 passed by the Director is hereby quashed. The Director is hereby directed to complete the transfer process within a period of THREE months."
Case Title: Naba Krishna Mahapatra v. State of Odisha & Ors.
Case No: W.P.(C) No. 6880 of 2022
Judgment Dated: 11th July 2022
Coram: Dr. Justice Sanjeeb Kumar Panigrahi
Counsel for the Petitioner: Mr. Dillip Kumar Mohapatra, Adv.
Counsel for the Respondents: Mr. Sonak Mishra, SC (for S & ME Deptt.)
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