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vil Appeal No. 113 of 1953. Appeal from the Judgment and Decree, dated the 25th day of March, 1952, of the High Court of Judicature at Bombay (Bavdekar and Dixit JJ.) in Appeal No. 554 of 1951, from Original Decree arising out of the Judgment and Decree, dated the 30th day of June, 1951, of the Court of the Joint Civil Judge, Senior Division of Thana, in Special Suit No. 12 of 1949. K. section Krishnaswamy lyengar, (J. B. Dadachanji, V.B. Rege and Ganpat Rai, with him) for the appellants. section B. Jathar, R. B. Kotwal and Naunit Lal for respondent No. 1. 1954. April 12. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal is brought by leave of the High Court of Bombay against the judgment and decree of a Division Bench of that Court (Bavdekar and Dixit JJ.) dated March 25, 1952, modifying the judgment and decree of the Civil Judge, Senior Division of Thana, dated June 30, 1951. The appeal arises out of a partition between 6 brothers of a joint Hindu family. The joint family carried on joint family business of a grocery shop, liquor shops, a ration shop, a motor bus service and also moneylending under the name of "Sontakke Brothers". The family also Possessed immovable and movable property. Balkrishna Sitaram Sontakke is the eldest of the brothers and is the plaintiff respondent in the present appeal. He will be referred to hereafter as the plain tiff. It is common ground that up to 1944 the brothers were living and messing together and the income from 101 the family business used to be kept with the plaintiff. From April 14, 1945, the situation changed and the parties began to appropriate the proceeds of the various businesses carried on by them separately to themselves. The plaintiff was running the liquor shops, defendants Nos. I and 2 who are the appellants, were carrying on the motor bus service business while defendant No. 4 was running the grocery shop. The parties tried to have partition effected between them through arbitrators but the attempt failed. On June 29, 1945, all the five brothers filed a suit for partition against the plaintiff of all joint family properties including the accounts of all the businesses. The suit was numbered 39 of 1945. It was compromised on March 7, 1946. By this compromise it was declared that prior to 1942 all the accounts of the various businesses had been correctly maintained and shown, that the parties had agreed to have arbitrators appointed through Court for examining the accounts from 1942 up to March 31, 1946, and for determining the amount due up to that date. Each of the brothers was to get one sixth share in the cash balance as found on March 31, 1946, upon examination of accounts by the arbitrators. All the movable property of the joint family including the stock in trade of all the family businesses was to be divided equally among all the brothers. The compromise further declared that the plaintiff was to have one sixth share in the motor garage and that defendants 1 and 2 were to pay the price of one sixth share to him. These are the material provisions of the compromise. One of the brothers was a minor and the Court finding the compromise to be for the benefit of the minor accepted it and passed a pre liminary decree in terms of the compromise on July 25, 1947. If nothing else had happened to disturb the natural course of events, the proceedings would have ended in a final decree for partition. The plaintiff, however, commenced a fresh suit on February 23, 1949, confining his relief to his share of the profits and assets Of the motor business carried on by defendants Nos. 1 and 2 after March 31,1946. His case was that the compromise was made in a hurry, that the parties omitted to provide in the compromise about the future conduct 102 of the motor business from April 1, 1946, that the motor business was still a joint family business and that he had a right to ask for accounts of that business subsequent to March 31, 1946. In defence it was pleaded that the compromise was made after due deliberation, that accounts of the motor 'business and grocery shop should actually have been taken up to April 14, 1945, the date of disruption of the joint family status, but the parties agreed by way of compromise that account of all family businesses should be taken up to March 31, 1946. It was also pleaded that the claim was barred by res judicata. Upon the issues framed in the case the Civil Judge found that the suit was not. barred by reason of the decision in the previous suit No. 39 of 1945, that the decision in that suit was not obtained by fraud and misrepresentation and that the compromise in the previous suit was not due to a mistake or misunderstanding. Despite these findings the Civil Judge held that although the motor business carried on after the partition had ceased to be a joint family business yet as it was carried on by some members of a family their position was analogous to that of a partner carrying on partnership after dissolution and applying the principle underlying section 37 of the Partnership Act he held that the two brothers carrying on the motor business were liable to account. Accordingly he passed a preliminary decree directing the accounts of the motor business to be taken from March 31, 1946, up to the date on which a final decree for payment of the amount found to be due would be made. A Commissioner was appointed to take the accounts to ascertain the profits earned by the use of the capital belonging to the shares of brothers other than those who carried on the motor business. In appeal Bavdekar 'J. with whom Dixit J. agreed modified the decree of the trial Court by directing that the accounts were to be taken up to the date when the businesses discontinued and not up to the date of the final decree. The learned Judges held that the cause of action for the present suit was different from the cause. of action in the previous suit and that the suit was not barred 103 by res judicata or by Order II, rule 2, of the Code of Civil Procedure. After delivering themselves of some conflicting observations to which reference will in detail be made hereafter they held that the consent decree did not expressly negative the right for accounts of the motor transport business. Finally the learned Judges recorded the conclusion that regardless of the pleadings in the case the defendants Nos. I and 2 had made use of the joint family property and that they stood in, the position of co owners and as contemplated in section 90 of the Indian Trusts Act were liable to render accounts for the profits which were attributable to the employment of the assets owned by the parties jointly. Learned counsel for the appellants has contested the view of the High Court upon all the points decided, ,against them. He has contended that the cause of action in a suit for partition is the desire and intention of the family to separate, that the cause of action in the two suits is identically the same and not separate and distinct and. that the suit was, therefore, barred both by the principle of res judicata and by Order II, rule 2, of the Civil Procedure Code. Learned counsel also challenged the view of the High Court about the applicability of section 90 of the Indian Trusts Act It seems to us that upon a fair reading of the compromise arrived at between the parties in the circumstances then existing, the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts upto March 31,1946, and had closed the door to reopening them beyond that date. If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the trial Court a finding which was not interfered with by the High Court it follows that a matter once concluded between the parties who were dealing with each other at arms length cannot now be reopened. What led the parties to confine the period of account to March 31, 1946, and stop further accounting which would have normally extended to the passing of the final decree will appear from the following circumstances. The plaintiff knew that the licence for the liquor shops 104 carried on by him was expiring on the 1st April, 1946, and he was anxious to run the liquor business exclusively and not jointly or in partnership with his brothers after the expiry of the licence. He gave a notice to his brothers through pleader on December 12, 1945, stating inter alia the following : "The period of (licence for) the liquor shops at the said places expires by end of March, 1946. Hence after the expiry of the said period, my client having no desire to conduct liquor shop business jointly or in partnership with any of you again, he intends to run and will run as from the date 1st April, 1946, one or more liquor shops as he pleases belonging to him alone independently. The moneys that will be required for (purchase in) auction of the shops will be paid by my client by borrowing the same from third parties on his own responsibility and my client will not allow the said moneys to have the least connection with the businesses, properties and cash which are at present in dispute in Court and with the profits and income from the said businesses or properties. My client expressly informs you by this notice of the fact, viz., that the liquor shops thus purchased by him will solely belong to him and will be run by him independently of any of you. None of you will have any legal right to meddle with or interfere in the liquor shops which will be thus purchased by my client in the Government auction for the new year beginning from 1st April, 1946, and if any of you make an attempt with malicious intention to cause even the slightest interference in the said business of my client, then my client will hold you fully responsible for any harm suffered by him and for other damages and expenses incurred by him and will take a severe legal action against you therefor. " This notice furnishes a true guide as to the intention of the plaintiff which was none other than that he should run the liquor shops exclusively for himself and appropriate the profits thereof without making himself accountable to his brothers. Although the plaintiff says that he intended to pay for the auction of liquor shops by borrowing he was really in a position of vantage for he admittedly had Rs. 13,000 cash in hand as 105 against the Rs. 3,000 his brothers had. The notice explains the significance of the provision in the compromise that accounts are to be taken only up to March 31, 1946. Since the plaintiff did not want his brothers to interfere with his exclusive running of the liquor business after March 31, 1946, he perforce had to agree that he should sever his connection with other businesses run by his brothers. This arrangement was apparently acceptable to all the brothers as being fair and reasonable and as not giving undue advantage to any party over the other. This being our construction of the compromise, it follows that the plaintiff 's conduct in going back upon that arrangement by filing a fresh suit in regard to the motor business only is anything but honest. The plaint filed in the previous suit leaves no manner of doubt that the plaintiffs in that suit ,sought a complete division of all the family property both movable and immovable and a final determination of all the accounts in respect of the family businesses. It is also significant that after the compromise the plaintiff (Balkrishna) filed an application before the Civil Judge in which he alleged that when he agreed in the compromise that the accounts of the various businesses should be up to the 31st March, 1946, he was under a misapprehension regarding his legal right inasmuch as he thought that when the accounts were to be taken up to a certain date, 'the joint family property after that date would not be allowed to be utilized by some members only of the family for making profits for themselves to the exclusion of the plaintiff. He goes on to say that he laboured under the impression that the joint family business would be either altogether stopped after the 31st March, 1946, or would be run either by the arbitrators or the Commissioners and the profits accruing therefrom would be deposited in Court for distribution among the parties according to their shares. The application was made on November 22, 1947. His pleader, however, stated on April 6, 1948: " The application is abandoned by the applicant as he wishes to pursue his remedy by way of an independent suit for the grievance in the application," and the Court passed the order, "The application is disposed of as 14 106 it is not pressed." The learned Judges of the High Court in referring to this application observe thus: " It is obvious therefrom that really speaking the idea of the profits of several businesses after the 1st of April, 1946, was present to the minds of the parties; but the parties did not care to ask that accounts of the other businesses will be taken up after the 1st of April, 1946. One of the businesses was a liquor business, which admittedly was to come to an end on the 31st of March, 1946; but there was also another business; that Was a kirana shop, which was not a very big business. But all the same it was there, and there is force, therefore, in the contention which has been advanced on behalf of the appellants that it was not as if there has been an oversight on the part of the parties, but the parties knew that the businesses might go on afterwards; but if they were carried on, they did not particularly care for providing by the compromise decree for accounts of those businesses being taken after the 1st of April, 1946. " Having said all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiff 's case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to Account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the 'final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the Court, was to divide all the property by metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking, in the partition suit as accounts would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural 107 course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants Nos. 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keenness to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business had sustained any. We hold, therefore, that the compromise closed once for all the controversy about taking any account of the joint family businesses including the motor business after the 31st March ', 1946, and the plaintiff is bound by the terms of the compromise and the consent decree following upon it. The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reaitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. We are also of opinion that the plaintiff 's claim is barred by the provisions of Order II, rule 2(3), of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 3, 1946, only, implicitly of not explicitly, relinquished his claim to the account for the subsequent period. Sub rule 3 clearly lays down that if a person Omits, except with the leave of the Court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect of 108 the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, rule 2(3), of the Civil Procedure Code. As the. suit is barred both by res judicata and Order II, rule 2(3), of the Civil Procedure Code, no further question as to the applicability of section 90 of the Indian Trusts Act can possibly arise under the circumstances. The result is that we allow the appeal and dismiss the suit with costs throughout. Appeal allowed.
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It’s a well-known legal rule that a consent decree (an agreement approved by a court) is just as binding as a court order made after a trial. If a settlement isn't based on fraud, lies, misunderstanding, or error, then the court's decision based on that settlement is final and prevents the same issue from being brought up again in court. This is called "res judicata." If a plaintiff (the person suing) limits their claim to a specific time, they are giving up any claim for later times, even if they don't say it directly. This is because a legal rule says that if someone doesn't ask for all the relief they could get in a lawsuit, they can't sue for that missing relief later, unless they got permission from the court first.
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The State of West Bengal & Ors.
1. Learned senior advocate for the State Mr. Kar
has raised the point of maintainability and
has submitted that the maintainability point
be kept open and to be decided later.
2. However, I find that there cannot be any
doubt about the maintainability of this writ
application and I am satisfied from Annexure
P-7 of the writ application that the writ
application is not delayed. Annexure P-7 is an
order passed by the appellate authority under
the Right to Information Act, 2005. From that
Annexure P-7 it appears that the Right to
Information application was made in 2018.
The first appeal in respect of the said RTI
application was filed on 23.10.2018. The
second appeal was filed before the
Commission on 10.12.2018 and the date of
hearing was 13.04.2021. Therefore, the
question of delay on the part of the petitioner
cannot come in the way of maintainability of
the writ application. The petitioner appeared
in Teachers Eligibility Test 2014.
3. Mr. Gupta, learned senior advocate for the
West Bengal Board of Primary Education, has
submitted that the petitioner's allegation in
respect of the persons named in pages 74 and
75 of the writ application is baseless as they
got one mark for one wrong question in
Teacher Eligibility Test-2014 and after getting
that one mark all of them have been qualified
in the TET and, therefore, they have been
recruited along with other candidates totalling
to 269. He further submits that this was done
as per the resolution dated 30.11.2017
communicated to the Chairperson of Hooghly,
District Primary School Council dated
04.12.2017. In respect of other set of
candidates, as appears in page 78 of the writ
application, against whom the allegation is,
they have been given appointment though
some of them were not qualified, Mr. Gupta
has submitted that he has to take instruction
in this regard.
4. Mr. Gupta has also submitted that he will file
a report before this court within a short time.
I direct the West Bengal Board of Primary
Education to file the said report in the form of
an affidavit on 15th June, 2022.
5. In this matter annexing one facebook page of
one Mr. Upendra Nath Biswas, who was the
Additional Director of CBI and also a minister
in the first five years of the present
Government, the petitioner has alleged that
he has named one “Ranjan”, who is in the
business of selling job of primary school
teachers. The petitioner has pleaded that the
actual name of this ‘Ranjan’ is Chandan
Mondal of Bagda, North 24 Parganas. It has
also been alleged that he has special tie up
with the Minister Level, Education
Department of Government of West Bengal.
6. I direct the petitioner to add said Mr. Upendra
Nath Biswas and said Chandan Mondal, who
has been termed as ‘Ranjan’ as party
respondents in course of the day.
7. Serious allegation by one responsible person,
who was none other than the Ex-Additional
Director of CBI and a Cabinet Minister of the
State Government in the first five years of the
Government, has come before this court
which is serious corrupt practice. I hold this
aspect is to be thoroughly investigated by the
CBI and such investigation is required to be
started forthwith. The Police of this State is
otherwise very efficient but controlled by
some persons in power and cannot act freely
which is common knowledge and without
showing any disrespect to the Police authority
I hold that CBI is the appropriate authority to
investigate the matter.
8. CBI shall have every power to call and
interrogate the said Chandan Mondal and it is
expected that the erstwhile Additional
Director, Mr. Upendra Nath Biswas will fully
cooperate with the CBI to expose the scam of
selling jobs as has been alleged. The CBI shall
register a case in this regard and start
investigation. CBI shall have every power to
take into custody the said Chandan Mondal
for interrogation if he does not cooperate with
9. Learned counsel for CBI, Mr. Billwadal
Bhattacharya, is present and I direct Mr.
Bhattacharya as well as learned advocate for
the petitioner, Mr. Firdous Samim, to
communicate this order immediately to CBI.
It is expected that CBI will start its action
immediately.
10. This matter will appear on 15th June, 2022
when the report of the West Bengal Board of
Primary Education will be filed in the form of
an affidavit and a status report of CBI will
also be filed before this court in a sealed
cover.
List the matter accordingly.
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On Wednesday, the Calcutta High Court ordered the Central Bureau of Investigation (CBI) to look into a case about hiring primary school teachers. The court also told the CBI to give its report in a sealed envelope by June 15.
The person who filed the case told Justice Abhijit Gangopadhyay that a former state minister and police officer, Upendra Nath Biswas, had accused Chandan Mondal. Mondal, from Bagda in North 24 Parganas, was allegedly giving primary school teacher jobs in exchange for money. It's important to know that Upendra Nath Biswas himself used to be an additional director of the CBI. The court also heard claims that Mondal was working secretly with ministers from West Bengal's Education Department.
When the court ordered the CBI investigation, it emphasized:
"A very serious accusation has come before this court. It was made by a trustworthy person, who was a former Additional Director of the CBI and a state Cabinet Minister. This accusation points to serious corruption. I believe the CBI must fully investigate this matter, and the investigation needs to start right away. While the state police are usually very good at their job, everyone knows they are controlled by some powerful people and cannot act freely. So, without disrespecting the police, I believe the CBI is the right agency to investigate this case."
The court also stated that the CBI has full power to call in and question Chandan Mondal, who is accused in the case. Former state minister Upendra Nath Biswas was also told to work completely with the CBI to help reveal this alleged scam of selling jobs.
Therefore, the CBI was told to give an update report in a sealed envelope by the next court hearing, which is scheduled for June 15.
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, right in holding that Respondent No. From the Judgment and order dated 17.10. 1986 of the Rajasthan High Court in D.B. Civil Special (Writ) Appeals Nos. 27,28 of 1983 and 224 of 1982. Tapas Ray, S.K. Jain, Mrs. P.Jain and section Atreya for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. The appeals are disposed of by the judgment herein. 1 Shri Kishan Bhageria was working under the appellant company as an Internal Auditor on a monthly salary of Rs.1186.60 per month. The appellant alleged that the respondent started absenting himself from 28.1.78 and as such was not entitled to any salary for any period beyond 28.1.78 The said respondent was thereafter placed under suspension on 30th of March, 1978. The respondent on 4th of May, 1978 filed an application under section 33C(2) of the (hereinafter called 'the Act ') claiming the total sum of Rs.4,746.40 on account of salary from Ist of January, 1978 to 30th of April, 1978 at the rate of Rs.11,86.60 per month. The appellant company objected. The main ground of objections was that the respondent was not a workman. On or about 9th of November, 1978 there was an order dismissing the respondent from service. The respondent thereafter on 2nd of January, 1979 filed an application under section 28A of the Rajasthan Shops & Establishments Act, 1958 (hereinafter called 'the Rajasthan Act '). The said application was dismissed on 31st of July 1979 on the ground of limitation. The Labour Court on 2nd of August, 1979 held that the respondent was doing clerical duties and as such was a workman under the Act and he was entitled to Rs.2,060 as salary from 1.1.78 to 9.3.78. The appellant filed Writ Petition No. 765 of 1979 in the Rajasthan High Court against the order of the Labour Court allowing the said salary. The respondent also filed another writ petition being writ petition No. 1091 of 1979 for declaration that he was entitled to receive Rs.2,066.98 as salary from 9.3.78 to 30.4.78. There was thereafter a reference under section 10 of the Act on 8.8.80 arising out of the dismissal of the respondent. The appellant filed another writ petition being Writ Petition No. 1623 of 1980 challenging the order of reference. All these aforesaid writ petitions were disposed of by the learned Single Judge of the Rajasthan High Court on 16.3.82 holding that the respondent was not a workman. The other contentions urged before the leaned Single Judge were not considered by the Division Bench in the view it took later on. On 17th of October, 1986 the Division Bench reversed the judgment of the learned Single Judge and held that the respondent was a workman. Two writ petitions of the appellant were dismissed and the writ petition of the respondent was allowed. Aggrieved by the aforesaid orders the appellant has come up in these appeals before this Court. The main question which requires consideration in these appeals is whether the respondent was a workman or not. For the determination of this question it is necessary to refer to section 2(s) of the Act which defines "workman" and states that it means any person emp 990 loyed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and includes any such person who has been dismissed discharged or retrenched in connection with or as a consequence of any dispute. But sub clause (iii) does not include any person who is employed mainly in a managerial or administrative capacity and sub clause (iv) does not include any person who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per month or duties attached to the office or by reason of the powers vested in him, discharges functions mainly of a managerial nature. In view of the said definition, we are concerned here with the question whether the respondent was a workman as not being employed in any supervisory capacity. There is no controversy that the said respondent is not employed in any managerial or administrative capacity. In this case before we deal with the facts and the relevant authorities of this Court it may be appropriate to refer to a decision of P.B. Mukharji, J. Of the Calcutta High Court as the learned Chief Justice then was in Mcleod and Co. vs Sixth Industrial Tribunal, West Bengal and others, A.I.R. 1958 Calcutta 273. There the learned Judge observed that whether a person was a workman within the definition of the was the very foundation of the jurisdiction of the Industrial Tribunal. The Court further observed that in order to determine the categories of service indicated by the use of different words like "supervisory", "managerial", "administrative", it was necessary not to import the notions of one into the interpretation of the other. It has to be broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application. The learned Judge further observed that a supervisor need not be a manager or an administrator and a supervisor can be a workman so long as he did not exceed the monetary limitation indicated in the section and a supervisor irrespective of his salary is not a workman who has to discharge functions mainly of managerial nature by reasons of the duties attached to his office or of the powers vested in him. In that case the learned Judge further held that a person in charge of a Department could not ordinarily be a clerk even though he may not have power to take disciplinary action or even though he may have another superior 991 officer above him. It was further observed that distribution of work may easily be the work of a manager or an administrator but "checking" the work so distributed or "keeping an eye" over it is certainly supervision. It is reiterated that a manager or administrator 's work may easily include supervision but that does not mean that supervision is the only function of a manager or an administrator. Bearing in mind the aforesaid indication, it would be necessary to discuss some decisions of this Court. In All India Reserve Bank Employees Association vs Reserve Bank of India, ; , this Court dealing with certain types of employees observed "These employees distribute work, detect faults, report for penalty, make arrangements for filling vacancies, to mention only a few of the duties which are supervisory and not merely clerical." At page 46 of the report Hidayatullah, J. as the learned Chief Justice then was observed that the work in a Bank involved layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision, (emphasis supplied). There the Court referred to a previous decision in Llyods Bank Ltd. vs Pannalal Gupta, , where the finding of the Labour Appellate Tribunal was reversed because the legal inference from proved facts was wrongly drawn and it was reiterated that before a clerk could claim a special allowance payable to a supervisor, he must prove that he supervises the work of some others who are in a sense below him. It was pointed out by Hidayatullah, J. that mere checking of the work of others is not enough because this checking was a part of accounting and not of supervision and the work done in the audit department of a bank was not supervision. (emphasis supplied). vs Burmah Shell Management Staff Association & Ors., ; , this Court observed that a workman must be held to be employed to do that work which is the main work he is required to do, even though he may be incidentally doing other types of work. Therefore, in determining which of the employees in the various categories are covered by the definition of 'workman ' one has to see what is the main or substantial work which he is employed to do. In The Punjab Co operative Bank Ltd. vs R.S. That did not make the respondent employed in a managerial or administrative capacity. The workman was, therefore, in that context rightly held as a clerk. 992 In P. Maheshwari vs Delhi Administration & Ors., ; the question whether a person was performing supervisory or managerial work was the question of fact to be decided bearing in mind the correct principle. The principle therefore is, one must look into the main work and that must be found out from the main duties. A supervisor was one who could bind the company to take some kind of decision on behalf of the company. One who was reporting merely as to the affairs of the company and making assessment for the purpose of reporting was not a supervisor. At page 1290, "Supervisor" has been described, inter alia, as follows: "In a broad sense, one having authority over others, to superintend and direct. The term 'supervisor ' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. " Reference may be made to the observations of this Court in Ved Prakash Gupta vs M/s. Delton Cable India (P) Ltd., ; There on facts a Security Inspector was held to be a workman. At page 575 of the report this Court referred to the decision in Llyods Bank Ltd. vs Panna Lal Gupta, (supra) and also the observations of this Court in Hind Construction and Engineering Company Ltd. vs Their Workmen, In that case the nature of the duties performed by the appellant showed that the substantial part of the work of the appellant consisted of looking after the security of the factory and its property by deputing the watchmen working under him to work at the factory gate or sending them to watch towers or around the factory or to accompany visitors to the factory and making entries in the visitors ' register as regards the visitors and in the concerned registers as regards materials entering into or going out of the premises of the factory. There it was found that he had no power to appoint. In the instant case the evidence have been summarised by the Division Bench. Reference may be made to pages 65, 73, 80, 84 to 94, 993 95, 96 and 97 of the Paper Book which indicate the nature of duties performed by the respondent No. His duties were mainly, reporting and checking up on behalf of the management. A reporter or a checking clerk is not a supervisor. The respondent herein does not appear to us doing any kind of supervisory work. He was undoubtedly checking up on behalf of the employer but he had no independent right or authority to take decision and his decision did not bind the company. In that view of the matter keeping the correct principle of law in mind the Division Bench has come to the conclusion taking into consideration the evidence recorded before the Labour Court that the respondent is a workman and not a supervisor. That conclusion arrived at in the manner indicated above cannot, in our opinion, be interfered with under Article 136 of the Constitution. It is not necessary for our present purpose to set out in extenso the evidence on record as discussed by the Division Bench. Our attention was, however, drawn by the counsel for the respondent to certain correspondence, for instance the letter at page 65 of the paper book bearing the date 14th of May, 1976 where the respondent reported that certain materials were lying in stores deptt. in absence of any decision. It was further reiterated that on inspection of the pieces that those pieces were found cracked. We are of the opinion that the Division Bench was right that these letters only indicated that the report was being made of the checking done by the respondent. A checker on behalf of the management or employer is not a supervisor. In the aforesaid view of the matter the conclusion of the Division Bench that respondent No. 1 is a workman has to be sustained. We do so accordingly. The next question that arises in this case is whether Act would apply or the Rajasthan Act would apply. In this connection section 28A of the Rajasthan Act is material. It enjoins that no employer shall dismiss or discharge from his employment any employee who has been in such employment continuously for a period of not less than 6 months except for a reasonable cause and after giving such employee at least one month 's prior notice or on paying him one month 's wages in lieu of such notice. Sub section (2) of section 28A gives every employee, so dismissed or discharged, right to make a complaint in writing in the prescribed manner to a prescribed authority within 30 days of the receipt of the order of dismissal or discharge. Section 37 of the Rajasthan Act reads as follows: "37. Saving of certain rights and privileges. Nothing in this Act shall affect any rights or privileges which an employee in any establishment is entitled to on the date this Act comes into force under any other law, contract, custom or usage applicable to such establishment or any award, settlement or agreement binding on the employer and the employee in such establishment, if such rights or privileges are more favourable to him than those to which he would be entitled under this Act. " It has to be borne in mind that section 2A of the Act was amended to permit individual workman to ask for a reference in the case of individual dispute. The Rajasthan Act received the assent of the President on 14th of July, 1958. On 8th March, 1972 Chapter 6A including section 28A was inserted in the Rajasthan Act. Therefore the material provision of the Rajasthan Act is the subsequent law. Under Article 254(2) of the Constitution if there was any law by the State which had been reserved for the assent of the President and has received the assent of the President, the State law would prevail in that State even if there is an earlier law by the Parliament on a subject in the Concurrent List. It appears that both of these Acts tread the same field and if there was any conflict with each other, then section 28A of Rajasthan Act would apply being a later law. We find, however, that there is no conflict. The learned Single Judge of the Rajasthan High Court in Poonam Talkies, Dausa vs The Presiding Officer, Labour Court, Jaipur, (S.B. Civil Writ Petition No. That decision has been upheld by the Division Bench of the Rajasthan High Court in Writ Appeal No. The Division Bench of the High Court in the instant appeal relying on the said decision held that there was no scope for any repugnancy. It appears to us that it cannot be said that these two Acts do not tread the same field. Both these Acts deal with the rights of the workman or employee to get redressal and damages in case of dismissal or discharge, but there is no repugnancy because there is no conflict between these two Acts, in pith and substance. There is no inconsistency between these two acts. These two Acts, in our opinion, are supplemental to each other. Though there may be no direct conflict, a State law may be inoperative because the Commonwealth Code is intended to be a complete exhaustive code; and 3. Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter. " Quoting the aforesaid observations, this Court in M/s. Hoechst Pharmaceuticals Ltd. and others vs State of Bihar and others; , at page 87 where A.P. Sen, J. exhaustively dealt with the principles of repugnancy and observed that one of the occasions where inconsistency or repugnancy arose was when on the same subject matter, one law would be repugnant to the other. Therefore, in order to raise a question of repugnancy two conditions must be fulfilled. The State law and the Union law must operate on the same field and one must be repugnant or inconsistent with the other. These are two conditions which are required to be fulfilled. These are cumulative conditions. Therefore, these laws must tread on the same field and these must be repugnant or inconsistent with each other. In our opinion, in this case there is a good deal of justification to hold that these laws, the and the Rajasthan Act tread on the same field and both laws deal with the rights of dismissed workman or employee. But these two laws are not inconsistent or repugnant to each other. That is not the position in this case. Learned counsel on behalf of the appellant, however, contended that in this case, there had been an application as indicated above under section 28A of the Rajasthan Act and which was dismissed on ground of limitation. Sree Shankar Ghosh tried to submit that there would be inconsistency or repugnancy between the two decisions, one given on limitation and the other if any 996 relief is given under the Act. We are unable to accept this position, because the application under Section 28A of the Rajasthan Act was dismissed not on merit but on limitation. There is a period of limitation provided under the Rajasthan Act of six months and it may be extended for reasonable cause. But there is no period of limitation provided under the . Therefore, that will be curtailment of the rights of the workmen or employees under the . In the situation section 37 declares that law should not be construed to curtail any of the rights of the workmen. It will be a well settled principle of interpretation to proceed on that assumption and section 37 of the Rajasthan Act must be so construed. Therefore in no way the Rajasthan Act could be construed to curtail the rights of the workman to seek any relief or to go in for an adjudication in case of the termination of the employment. If that is the position in view of the provisions 6 months ' time in section 28A of the Rajasthan Act has to be ignored and that cannot have any binding effect inasmuch as it curtails the rights of the workman under the and that Act must prevail. In the premises, there is no conflict between the two Acts and there is no question of repugnancy. The High Court was, therefore, right in holding that the respondent was workman and in granting relief on that basis. Before we conclude we note that our attention was drawn to certain observations of this Court that interference by the High Court in these matters at the initial stage protracts adjudication and defeats justice. Reference was made to certain observations in P. Maheshwari vs Delhi Admn. & Ors., (supra). But as mentioned hereinbefore in this case, the interference was made by the High Court not at the initial stage. In the premises, we are of the opinion that the High Court was right in the view it took. These appeals, therefore, fail and are accordingly dismissed. There will, however, be no order as to costs. Appeals dismissed.
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The first person involved worked for the company as an Internal Auditor and earned about Rs. 1186 per month. The company said that the person stopped coming to work on January 28, 1978. Because of this, they shouldn't get paid for any time after that date, according to the company. The person was then suspended from work on March 30, 1978. On May 4, 1978, the person asked for Rs. They used a specific section of the law to make this request. The company disagreed, saying the person wasn't a "workman" (someone protected by labor laws). On November 9, 1978, the company fired the person. On January 2, 1979, the person made another request under a different law, the Rajasthan Shops and Commercial Establishments Act, 1958. This request was turned down on July 31, 1979, because it was filed too late. On August 2, 1979, the Labour Court (a special court for workers) said the person did office work and was therefore a "workman." They were entitled to about Rs. 2060 as salary from March 9, 1978, to April 30, 1978. A judge from the High Court (a state-level court) dealt with all these issues on March 16, 1982, and decided the person wasn't a "workman." The company's legal papers were dismissed, while the person's legal paper was accepted. The company disagreed with these orders and appealed to a higher court. The questions were: (1) Was the person a "workman" under the definition of a specific section of the law? (2) Which law applied in this case: the main labor law or the Rajasthan Shops and Commercial Establishments Act, 1958? (a) Whether someone is doing supervisory or managerial work is a matter of fact. Someone who just reports on the company's affairs and makes assessments for reporting purposes is not a supervisor. [992A B] (b) In this case, it's clear that the person wasn't in a managerial or administrative position. Giving out work can be a manager's job, but "checking" the work or "keeping an eye" on it is supervision. A manager's job might include supervision, but supervision isn't the *only* thing a manager does. Supervision involves the power to assign duties and distribute work. (c) A checker for the management isn't a supervisor. [993E] In this case, the person's job mainly involved reporting and checking for the management. A reporter or checking clerk isn't a supervisor. The person didn't seem to be doing any supervisory work. They were checking for the company, but they didn't have the independent power to make decisions, and their decisions didn't bind the company. The court decided the person was a "workman" based on the evidence presented to the Labour Court, which showed they were a worker, not a supervisor. (a) To argue that two laws are in conflict, two things must be true: the state law and the national law must cover the same topic, and one must contradict the other. [995E] Two previous court cases were referenced. (b) In this case, it's reasonable to say that the laws—the main labor law and the Rajasthan Shops and Commercial Establishments Act, 1985—cover the same area. Both laws deal with the rights of a fired worker or employee. But these two laws don't contradict each other. The main test for contradiction is whether one law would prevent the other from being followed. That's not the situation here. [995F G] (c) The request under the Rajasthan Act was turned down because it was filed too late, not because it was wrong. The Rajasthan Act has a deadline for filing requests, which can be extended for a good reason. But the main labor law doesn't have a specific deadline. So, enforcing the deadline in the Rajasthan Act would limit the rights of workers or employees under the main labor law. Section 37 of the main labor law says that the law shouldn't be interpreted to limit workers' rights. We should assume this when interpreting laws, and Section 37 of the Rajasthan Act should be understood in this way. The Rajasthan Act shouldn't be interpreted to limit a worker's right to seek help or take legal action if they are fired. [996C] (e) So, there's no conflict between the main labor law and the Rajasthan Shops and Commercial Establishments Act, 1985, and there's no question of contradiction. The two laws support each other. [994G H; 996D]
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Criminal Appeal No. 46, of 1969. Appeal under Article 134(1)(c) of the Constitution of India from the judgment and order dated December 10, 1968, of the Patna High Court in Criminal Appeal No. 116 of 1966. section M. Mishra and section section Jauhar, for the appellant. B. P. Jha, for the respondent. The Judgment of the Court was delivered by Khanna, J. The short question which arises for determination in this appeal on certificate granted by Patna High Court is whether the appellant who was less than 21 years of age on the date of his conviction for an offence under section 326 read with section 149 Indian Penal Code, can claim the, benefit of section 6, of the (Act No. 20 of 1958). , 876 The appellant and five others, who belong to village Mandil in District Gaya, were tried in the court of Additional Sessions Judge Gaya for offences under sections 147, 148, 307, 323 and 307 read with section 149 Indian Penal Code and section 25 of the Arms Act. Jugal Kishore appellant was convicted under section 326 read with section 149 and section 148 Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years on the first count and rigorous imprisonment for a, period of two years on the second count. The sentences awarded to the appellant were ordered to run concurrently. The other five accused were also convicted for various offences and were sentenced on those counts. On appeal the Patna High Court as per judgment dated January 22, 1968 acquitted two of the accused. The conviction of the appellant for offences under section 326 read with section 149 and 148 Indian Penal Code was maintained. The sentence of the appellant for the offence under section 326 read with section 149 Indian Penal Code was reduced from five years to three years. The sentence for the offence under section 148 Indian Penal Code was, however, maintained. The conviction of the other three accused was maintained for some of the offences, and they were awarded sentences of imprisonment on that count. After the pro nouncement of the judgment by the High Court, an application was made on behalf of the appellant that his case be deal; with under the on the ground that he wag below 21 years of age at the time of his conviction by the trial court. This application was rejected by the High Court as per ,order dated December 12, 1968 on the ground that the offence for which the appellant had been convicted was punishable with imprisonment for life, and as such, the provisions of could no be invoked in his case. On prayer made by the appellant, the High Court certified the case to be fit for appeal to the Supreme Court as it involved the question relating to the applicability of the . The appellant and his companions were tried on the allegation that on October 14, 1964 at about 10 a.m., while Madho Saran was getting his field bearing No. 1678 ploughed by his ploughman Rakshya Mahto, the appellant and Raghu accused went there and questioned Madho Saran for cutting the ridge between field No. 1678 and 1719. Field No. 1719 belonged to the appellant. Madho Saran went to his house and narrated the incident to his brother Sadho Saran. Madho Saran and Sadho Saran along with others then came out of their house and while they were near a barrage, they met the accused who were accompanied by about 30 person of their village. One of the accused, namely, Hira Lal, who was armed with a gun, fired a shot as a result of which Sadho 'Saran was hit on his head. Sadho Saran fell down, whereafter 87 7 the other accused, including the appellant who was armed with a garasa, caused further injuries to Sadho Saran and his companions with sharp edged and blunt weapons. The injured were thereafter taken to Jehanabad Hospital. On receipt of intimation from the doctor incharge of the hospital, a police Sub Inspector went to the hospital and recorded the statement of Madho Saran, Nand Kishore, one of the accused, also lodged a report at the police station. The question with which we are concerned in this appeal, as mentioned earlier, is whether the appellant can claim the benefit of the . The appellant gave. his age to be 19 years in his statement under Section 342 of the Code of Criminal Procedure, and the case has been argued before us on the assumption that the appellant was less than 21 years of age at the time of his conviction by the Additional Sessions Judge. The main offence for which the appellant has been convicted is section 326 read with section 149 Indian Penal Code. Section 326 deals with the offence of voluntarily causing grievous hurt by dangerous weapons or means and the punishment prescribed for the offence is imprisonment for life, or imprisonment of either description for a term which may extend to ten years. The convicted person shall also be liable to pay fine. According to section 149 of the Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. It is. , therefore, manifest that the appellant on being convicted for the offence under section 326 read with section 149 Indian Penal Code was liable to be punished for imprisonment for life or with imprisonment of either description for a term which may extend to ten years and was also liable to pay fine. The was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation or after due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that good many crimes are the product of socioeconomic milieu. Although net much can be done for hardened criminals, considerable stress has 878 been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore provided that youthful offenders should not be sent to jail, except in certain circumstances. Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of section 6 of the Act. Sub section (1) of that section reads as under "When any person under twenty one years of age. is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the per son is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. " Mr. Misra on behalf of the appellant has urged that as the offence under section 326 read with section 149 Indian Penal Code is punishable not only with imprisonment for life but also with imprisonment which may extend up to ten years, the benefit of section 6 of the Act can be invoked by the appellant. This contention, in our opinion, is not well founded. Plain reading of section 6 makes it manifest that it deals with persons under twenty one years of age who are found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life. As imprisonment for life can also be awarded for the offence under section 326 read with section 149 Indian Penal Code, a person found guilty of such an offence would not be entitled to claim the benefit of section 6. To hold otherwise. would have the effect of ignoring the words "but not with imprisonment for life" and treating them to be otiose. Such a construction is plainly not permissible. We also cannot subscribe to the view that the offences excluded from the purview of the section are only those offences wherein punishment prescribed is imprisonment for life and not for a lesser term, for the language used in the section does not warrant such a view. On the contrary, the ,Plain meaning of the section is that the section cannot be invoked by a person who is convicted for an offence punishable with imprisonment for life. The fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of offences punishable with imprisonment for life. The policy underlying the Act appears to be that it is only in 879 cases of not very serious nature, viz., offences not punishable with imprisonment for life that the convicted person should have the benefit of provisions of the Act. Where, however, the offence for which a person has been convicted is of a serious nature punishable with imprisonment for life, the benefit of the Act would not be permissible in his case. Likewise, there are certain offences like those under the Prevention of Corruption Act wherein the convicted person cannot claim the protection of the Act. Section 18 of the Act expresser excludes such offences from the purview of the Act. In the case of Som Nath Puri vs State of Rajasthan (1) the appellant had been convicted for an offence under section 409 Indian Penal Code. Punishment for the offence under section 409 Indian Penal Code is the same as for the offence under section 326, namely, imprisonment for life, or imprisonment of either description for a term which may extend to ten years and the liability to pay fine. It was held by this Court that in such a case the provisions of section 4 of the cannot be invoked. It may be mentioned that section 4 of the, Pro bation of Offenders Act also excludes from its operation persons convicted of offences punishable with imprisonment for life. In that connection, the Court observed : "As the offence of criminal breach of trust under section 409, I.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicable to a case of a person found guilty of having comm itted an offence not punishable with death or imprisonment for life. " We, therefore, hold that the appellant cannot invoke the benefit of section 6 of the . The appeal fails and is dismissed. Appellant to surrender to the bail bond. Appeal dismissed.
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The person appealing the case was under 21. He was found guilty of a crime under a specific law (section 326, along with 6. 140 of the Indian Penal Code, or I.P.C.). He was sentenced to 3 years in jail. The question was whether he could get help from another law (section 6 of a certain Act). The court said: (1) This other law was created to release some offenders on probation (a chance to stay out of jail if they behave) or after a warning. The goal was to keep young offenders (under 21) from becoming serious criminals by being around older, hardened criminals in jail. But, if the crime someone was convicted of is very serious and can be punished with life in prison, or if it's one of the crimes listed in section 18 of the Act, then this help wouldn't be available. (2) The person appealing was found guilty under section 326 along with section 149 of the I.P.C. This meant he could be punished with life in prison. So, he can't get help from section 6 of the other law. To say otherwise would be ignoring part of the law, which you can't do. (3) Just because a shorter jail sentence could also be given for the crime doesn't mean it's no longer a crime that *could* be punished with life in prison. A previous case (Som Nath Puri vs State of Rajasthan) was used as a guide.
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Civil Appeal No. 2031 of 1977. Appeal by special Leave from the judgment and order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ Petition No. 905 of 1975. WITH Civil Appeal Nos. 136 & 137 of 1978. From the judgment and order dated the 30th June, 1977 of the Andhra Pradesh High Court in Writ Petition Nos. 796 & 922 of 1975 respectively. Ramachandra Reddy, Advocate General and B. Parthasarthi for the Appellants P. Rama Reddy and A.V.V. Nair for Respondent No. 2 in CA. 2031, R. 3 in 136 & R. 2 in 137. A. Subba Rao for RR I & 2 in CA. 136/78. A.K. Sen, e. Rajendra Choudhury, G.R. Subbaryan, I. Koti Reddy and Mahabir Singh for Respondent No. 1 in CA. 137/78. B. Ranta Rao for Respondent No. 1 in CA. 2031/77. The Judgment of the Court was delivered by CHANDRACHUD, C.J. these three appeals arise out of a common judgment dated June 30. 1977 of a Division Bench of the High Court of Andhra Pradesh, setting aside the judgment of a learned single Judge dated November 18, 1975 in Writ Petitions Nos. 1539 of 1974 and 798 of 1975. Civil Appeal No. 2031 (NCM) of 1977 is by special leave while the other two appeals are by certi 503 ficate granted by the High Court The question which these appeals involve is whether the appellant, the Government of Andhra Pradesh, has the power to evict the respondents summarily in exercise of the power conferred by the Andhra Pradesh Land Encroachment Act, 1905. This question arises on the following facts: We are concerned in these appeals with three groups of lands situated in Habsiguda, Hyderabad East Taluk, Andhra Pradesh. Those lands are: R.S. No 10/1, which corresponds to plot No. 94 admeasuring 10 acres and 2 guntas, R.S. No. 10/2 which corresponds to plot No. 104 admeasuring 9 acres and 33 guntas; and R.S. Nos. 7, 8 and 9 which correspond to plot No. 111 admeasuring 26 acres and 14 guntas. These lands belonged originally to Nawab Zainuddin and after his death, they devolved on Nawab Habibuddin. Sometime between the years 1932 and 1937, certain lands were acquired by the Government of the Nizam of Hyderabad under the Hyderabad Land Acquisition Act of 1309 Fasli, the provisions of which are in material respects similar to those of the Land Acquisition Act, 1894. The lands were acquired for the benefit of the osmania University which was then administered as a Department of the Government of Hyderabad. The University acquired an independent legal status of its own under the osmania University Revised Charter, 1947, which was promulgated by the Nizam. E The question whether the aforesaid three plots of land were included in the acquisition notified by the Government of Nizam became a bone of contention between the parties, the osmania University contending that they were so included and that they were acquired for its benefit and the owner, Nawab Habibuddin, contending that the three plots were not acquired. On February 13, 1956 the osmania University filed a suit (O.S. No. 1 of 1956) against Nawab Habibuddin, in the City Civil Court, Hyderabad, claiming that the three lands were acquired by the Government for its benefit and asking for his eviction from those lands. That suit was dismissed in 1959 on the ground that plot No. 111 was not acquired by the Government and that though plots Nos. 94 and 104 were acquired, the University failed to prove its possession thereof within twelve years before the filing of the suit. In regard to plots Nos. 94 & 104, it was found by the trial court that Habibuddio had encroached thereupon in the year 1942, which was more than twelve years before the filing of the suit. Civil Appeal No. 61 of 1959 filed by 504 the University against that judgment was dismissed on January 24, 1964 by the High Court which affirmed the findings of the trial court. The State Government was not impleaded as a party to those proceedings. On May 8, 1964 the osmania University wrote a letter to the Government of Andhra Pradesh, requesting it to take steps for the summary eviction of persons who were allegedly in unauthorised occupation of the 3 plots. On December 8, 1964, the Tahsildar, Government of Andhra Pradesh, acting under section 7 of the Land Encroachment Act, 1905, issued a notice to Nawab Habibuddin to vacate the lands and on December 15, 1964 the Tahsildar passed an order evicting him iron the lands. The appeal filed by Habibuddin to the Collector was dismissed in 1965 and the appeal against the decision of the Collector was dismissed by the Revenue Board in 1968 During the pendency of the appeal before the Revenue Board, the respondents purchased the plots from Habibuddin for valuable consideration and on the death of Habibuddin, they were impleaded to the proceedings before the Revenue Board. They preferred an appeal from the decision of the Revenue Board to the Government but that appeal was dismissed on November 26, 1973. On March 19, 1974, the respondents filed Writ Petitions in the High Court of Andhra Pradesh challenging the order by which they were evicted from the plots summarily under the provisions of the Act of 1905. The learned single Judge dismissed those Writ Petitions observing: "The question whether the lands with which we are concerned in the writ petition were acquired by the Government or not and the question whether the Government had transferred its title to the University or not are questions which cannot properly be decided by me in an application under article 226 of the Constitution. The appropriate remedy of the petitioners is to file a suit to establish their title. " The learned Judge held that: "Though the title of the Government is not admitted by the alleged encroacher, there is a finding by the Civil 505 Court that there was encroachment by the alleged encroacher. That is sufficient to entitle the Government to initiate action under the provisions of the Land Encroachment Act. " Three appeals were preferred to The Division Bench against the judgment of the learned single Judge, two of them being by the petitioners in one writ petition and the third by the petitioner in the other writ petition. The Division Bench, while setting aside the judgment of the learned single Judge, held: "The question whether the lands. belong to osmania University or not will have to be decided as and when the Government comes forward with a suit for the purpose. Even if we assume for the purpose of our judgment, as we are not pronouncing any conclusion as to whether the land vested in the Government or University, that the Government is the owner, the dispute going back from 1942 cannot be dealt with in summary proceeding under section 7 of the Land Encroachment Act. " The summary remedy provided by section 7, according to the Division Bench, cannot be resorted to "unless there is an attempted encroachment or encroachment of a very recent origin" and further, that it cannot be availed of in cases where complicated questions of title arise for decision. We are in respectful agreement with the view taken by the Division Bench, subject however to the observations made herein below. The Andhra Pradesh Land Encroachment Act, 1905, was passed in order "to provide measures for checking unauthorised occupation of lands which are the property of Government. " The preamble to the Act says that it had been the practice to check unauthorised occupation of lands which are the property of the Government "by the imposition of penal or prohibitory assessment or charge" and since doubts had arisen whether such practice was authorised by law, it had become necessary to make statutory provisions for checking unauthorised occupations. Section 2 (1) of the Act provides that all public roads, streets, lands, paths, bridges, etc. shall be deemed to be the property belonging to Government, unless it falls under clauses (a) to (e) of that section. Section 2 (2) provides that all public roads and streets 506 vested in any public authority shall be deemed to be the property of the Government by section 3 (1), any person who is in unauthorised occupation of any land which is the property of Government, is liable to pay assessment as provided in clauses (i) and (ii) of that section. Section S provides that any person liable to pay assessment under section 3 shall also be liable, at the discretion of the Collector, to pay an additional sum by way of penalty. Sections 6 (1) and 7, which are relevant for our purpose, read thus: "Sec. 6 (1) Any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 may be summarily evicted by the Collector, Tahsildar or Deputy Tahsildar and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collection Tahsildar. or Deputy Tahsildar may deem reasonable, be liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector, Tahsildar or Deputy Tahsildar and any property so forfeited shall be disposed of as the Collector, Tahsildar or Deputy Tahsildar may direct." "Sec. 7. Before taking proceedings under section 5 or section 6, the Collector or Tahsildar or Deputy Tahsildar as the case may be shall cause to be served on the person reputed to be in unauthorised occupation of land being the property of Government, a notice specifying the land so occupied and calling on him to show cause before a certain date why he should not be proceeded against under section S or section 6. " It seems to us clear from these provisions that the summary remedy for eviction which is provided for by section 6 of the Act can be resorted to by the Government only against persons who are in 507 unauthorized occupation of any land which is "the property of Government". In regard to properly described in sub sections (I) and (2) of section 2, there can be no doubt, difficulty or dispute as to the title of the Government and, therefore, in respect of such property, the Government would be free to take recourse to the summary remedy of eviction provided for in section 6. A person who occupies a part of a public road, street, bridge, the bed of the sea and the like, is in unauthorised occupation of property which is declared by section 2 to be the property of the Government and, therefore, it is in public interest to evict him expeditiously which can only be done by resorting to the summary remedy provided by the Act. But section 6 (1) which confers the power of summary eviction on the Government limits that power to cases in which a person is in unauthorised occupation of a land "for which he is liable to pay assessment under section 3 ' '. Section 3, in turn, refers to unauthorised occupation of any land "which is the property of Government" If there is a bond dispute regarding the title of the Government to any property the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by section 6 for evicting the person who is in possession of the property under a bona fide claim or title. In the instant case, there is unquestionably a genuine dispute between The State Government and the respondents as to whether The three plots of land were the subject matter of acquisition proceedings taken by the then Government of Hyderabad and whether the osmania University. for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by the University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the properly more than twelve years before the date of the suit and the University was not in possession of the property at any time within that period. Having tailed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by section 6 is not the kind of legal process which is suited to an adjudication of complicated questions of title. That procedure is, therefore, not the due process of law for evicting the respondents. 508 The view of the Division Bench that the summary remedy provided for by section 6 cannot be resorted to unless the alleged encroachment is of "a very recent origin", cannot be stretched too far That was also the view taken by the learned single Judge him self in another case which is reported in Meherunnissa Begum vs State of A.P. which was affirmed by a Division Bench.(2) It is not the duration, short or long, of encroachment that is conclusive of the question whether the summary remedy prescribed by the Act can be put into operation for evicting a person. What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts " which raise a bond fide dispute of title between the Government and the occupant must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in the sense that a person who is hl occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bonafide claim to the property requiring an impartial adjudication according to the established procedure of law. The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act. The long possession of the respondents and their predecessors in title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily. For these reasons, we uphold the judgment of the Division Bench of the High Court and dismiss these appeals with costs. 509 We do not propose to pass any orders on Civil Misc. Petitions A Nos. 18974, 18975, 18976, 18497, 18498 and 18499 of 1981 which have been filed for adding certain parties as respondents to these appeals. Those petitions involve the question of a Will alleged to have been made by Nawab Habibuddin in favour of Entashamuddin alias Anwar Siddiqui and his elder brother. We cannot go into the validity of that Will and other incidental questions in these ap peals. H.L.C. Appeals dismissed.
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The Andhra Pradesh Land Encroachment Act, passed in 1905, was created to stop people from illegally taking over government land. If someone is illegally occupying land that belongs to the government, they must pay a fee as explained in section 3 of the law. According to section 6(1), officials like the Collector (district officer), Tahsildar (revenue officer), or Deputy Tahsildar can quickly remove anyone illegally living on land if they have to pay the fee under section 3. Before doing so, they must give a "show cause notice," as described in section 7, which is a chance for the person to explain why they shouldn't be evicted. This lawsuit was rejected in 1959 because the court said one of the pieces of land wasn't taken over by the government. For the other two pieces, the university couldn't prove they had control of the land within 12 years before filing the lawsuit. The trial court (original court) found that the person who inherited the land from the original owner had illegally moved onto those two pieces of land in 1942. The High Court (higher court) agreed with the trial court's decision in 1964. The State Government was not involved in these court cases. The University then asked the State Government to quickly evict the heir of the original owner from the three pieces of land. The Tahsildar started the process and ordered the eviction under section 6(1) of the Act on December 15, 1964. Appeals (requests to change the decision) against this order were rejected by the Collector in 1965 and by the Revenue Board (another government body) in 1968. The people who bought the land while the appeal was with the Revenue Board were added as parties to the case after the original owner's heir died. Their appeal from the Revenue Board's decision was rejected by the Government in 1973. A single judge of the High Court dismissed this petition, saying that the High Court could not decide who owned the land under Article 226. However, the judge said that the Civil Court had already found that there was illegal occupation, which was enough for the Government to start action under the Land Encroachment Act. The people's appeal was allowed by a group of judges (Division Bench), who said that a dispute from as far back as 1942 couldn't be handled in a quick eviction process under the Land Encroachment Act. The quick eviction process should only be used if someone is currently trying to illegally occupy land or if the illegal occupation is very recent. It also shouldn't be used if there are complicated questions about who owns the land. Dismissing the appeals, the court HELD: (I) The government can only use the quick eviction process in section 6 of the Act against people who are illegally occupying government land. If there's a real disagreement about whether the government owns the land, the government can't simply decide that it owns the property and then use the quick eviction process. In this case, there was a clear disagreement between the State Government and the people about whether the three pieces of land had been taken over by the government of Hyderabad and whether the University had lost its claim to the land because of the law of limitation (a law about how long you have to make a claim). The people had a real reason to fight for their claim, and they couldn't be evicted without a proper legal process. The quick eviction process in section 6 wasn't suitable for deciding complicated questions about who owns the land. So, that process wasn't the right way to evict the people. The view of the judges that the quick eviction process in section 6 should only be used if the illegal occupation is "very recent" shouldn't be taken too literally. It's not just about how long the illegal occupation has been going on. What matters more is the type of property and whether the person's claim to the land is legitimate. If there are facts that create a real disagreement about who owns the land between the government and the person living there, it must be decided by the regular courts. How long someone has been occupying the land matters because someone who has been openly living on a property for a long time can be seen as having a legitimate claim to the property. In this case, the long period of possession by the people and their family created a real dispute between them and the Government about who owned the land. Whether the government had become the owner of the property because of the takeover, and whether the original owner's heir had illegally moved onto the property and gained ownership through adverse possession (claiming ownership by openly living on the land for a long time), had to be decided in a proper lawsuit.
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1. By this petition, the petitioner seeks transfer of investigation in case
FIR No. 243/2021 under Sections 302/34 IPC registered at P.S.Hari Nagar
from respondent No.3 to CBI, directions to preserve CCTV footages of the
relevant time and compensation to the petitioner/mother of the deceased.
2. According to the petitioner, her son was taken into custody in FIR
Nos. 178/2019, 179/2019 and 180/2019 on 13th June 2019 and since then, he
was in judicial custody. On 14th May 2021, son of the petitioner died on
being taken to the hospital and in this regard, FIR No. 243/2021 was
registered at P.S.Hari Nagar under Sections 302/34 IPC. According to the
petitioner, on looking at the photos and videos of the deceased body, deep
cut wounds on his thighs and hands were found which could not be caused
due to the simple cricket bats, as alleged and such wounds would have been
inflicted only by a sharp object. Daughter of the petitioner i.e. sister of the
deceased had received a call from the deceased one day prior to the date of
incident wherein, she claims that her brother told that he would be murdered
by the jail officers. Further, at the time of incident itself, a PCR call was
received from the jail which was not from the officers of the jail wherein,
the caller stated that ‘my brother has been got murdered by R.N.Meena; I am
in jail and R.N.Meena is also in jail, who is D.S. in jail and has assaulted
me yesterday and also assaulted my brother with sticks; my brother has
been moved to DDU Hospital name Shreekant Rama Swami; my brother has
been murdered’. When Shrikant was admitted in hospital, after some
treatment, he was declared dead. In view of the fact that the deceased died
in custody, judicial enquiry is in process.
3. According to the learned Standing Counsel for the State, report of
Magisterial enquiry has not been received, however, FIR No. 243/2021
under Sections 302/34 IPC was registered on the same day. The
investigation of the FIR is being conducted by the investigating officer from
P.S.Hari Nagar and based on the investigation conducted, a status report has
been filed which is reproduced here-in-under:-
“Most respectfully it is submitted that on 14/5/21 a PCR call
was received in P.S Hari Nagar vide DD No – 41-A that, “ Tihar Jail
No-2, “Caller is stating that, “My brother has been got murdered by
R.N Meena . I am in the Jail and R. N Meena also in Jail, who is D.S
in jail and has assaulted me yesterday and also assaulted my brother
with sticks. My brother has been moved to DDU hospital Name
Shreekant Rama Swami, My brother has been murdered”. On receipt
of information SI Kavish was informed to take necessary action. In
the meanwhile information was received from Safdarjung hospital
that Srikant @ Appu was admitted in hospital where he was declared
dead during treatment. As per direction of senior officer Insp.
Praveen and SHO sir also reached at the spot and in the meanwhile
SI Kavish also reached there. In Jail No-2 Tihar jail eyewitnesses of
the incident Warder Lalit was enquired and his statement was
recorded. He stated that on 14/5/21 he alongwith warder Praveen
was present on duty on ward No-2 of jail No -2. As per routine the
barracks of inmates were opened at about 6 PM and after opening the
barracks he alongwith warder Praveen were present in the guard
room near main gate of the ward. Suddenly at about 7 AM they heard
hue and cry from side of barrack No-4. On hearing the rush towards
the barrack where inside the barrack inmates Arun @ Mandwa,
Ganpat, Kishan and Akash were found assaulted inmate Srikant @
Appu with cricket bats. Both the warders controlled the assaulters
with help of other inmates. During this, all the assaulters committed
crossing (a common term used for mutual giving injuries to each
other just to create defense) with each other. During this assaulter
Arun also received injuries on his head and started bleeding profusely.
They locked the other assaulters in another barrack and tried to take
both the injured inmates namely Srikant @ Appu & Arun @ Mandwa
for treatment, but Srikant refused for the same and warder Lalit took
injured inmate Arun to jail dispensary for treatment and warder
Praveen remained in ward for duty. Senior jail officials were also
informed by the warders. When after treatment of Arun Jail warders
and other officials were taken round of the ward. Inmate Srikant
complained of pain and he was rushed to jail dispensary, from where
he was referred to Safdarjung hospital, where he was declared dead.
Information in this regard was also conveyed to concerned duty M.M.
Ld. Ms. Anjani Mahajan. The scene of crime was inspected and some
blood stains were noticed on the floor and a bedsheet with blood
stains was also recovered. The jail officials also provided two cricket
bats having blood stainds which were snatched from the accused
persons and wearing blood stained clothes of inmate Arun. On
statement of warder Lalit present FIR was registered and
investigation was started. In the meanwhile PCR calls were also
received from unknown numbers that inmate Srikant has been
assaulted by Jail official R.N.Meena. During investigation of the case
other eyewitnesses were enquired Eye witness Warder Praveen was
also enquired and his statement was recorded in which he
corroborated the statement of Warder Lalit. Other inmates were also
enquired and they also supported the version of complainant and
stated that the deceased used to bully other inmates and also demand
money from them. It was also revealed that just a day prior to this
incident i.e. 13/5/21 the deceased has again harassed accused Arun
@ Mandwa & another inmates Vikas Jain and Arun has also made a
written complaint to Jail authorities in this regard and Arun and
Vikas have requested for change of their barracks and after this they
were shifted to barrack No. 6 from Barrack No. 4. Notice was given to
jail authorities to provide CCTV footage of incident. But they stated
that the CCTVs in Ward No. 2 are not in working condition. The
number from which PCR call with regard to death of Srikant was
made is not reachable since then. Even no brother of deceased
Srikant was found to be lodged in Tihar Jail as alleged in the PCR
call. Post mortem of the deceased was got conducted in Safdarjung
hospital on 15/5/21 and as per post-mortem report cause of death is
given as “Death is due to shock as a result of multiple injuries to head,
both upper limbs and both the lower limbs consequent to blunt force
impact”. After this all the four accused persons were arrested in the
present case after permission of Hon’ble Couret. During
interrogation they stated that deceased Srikant used to harass and
bully all other inmates and even demand money from them. Arun
stated that he was a new inmate in barrack No. 4 of Jail No. 2 and
Srikant used to harass and bully him and used to demand money from
him. Due to this constant torture he has also made a complaint to jail
authorities and has requested to change his barrack and due to this
reason on 13/5/21 he was shifted to barrack No. 6 from No. 4. He has
discussed all this with other accused persons, who all were also
having grudge against Srikant due to his constant torture and they all
hatched a conspiracy to kill Srikant. On the day of incident after
opening of barracks, all accused persons entered in barrack of
decease and assaulted him with cricket bats which subsequently
caused his death. Blood sample of all the accused persons have been
obtained and have been sent to FSL alongwith other seized exhibits
for opinion. The registered owner of mobile phone No. 9311898547
(from which PCR call with regard to involvement of Deputy
Superintendent Sh.R.N.Meena in murder of deceased was made) Ms.
Mukundpur Delhi was also enquired and she stated that she has lot
her mobile phone having above sim and due to ignorance she has not
lodged any complaint in this regard and she does not know Srikant
and none of her acquaintance is lodged in Tihar jail.
Sh. R.N.Meena Deputy Superintendent was also enquired and
he stated that deceased Srikant used to bully other inmates and his
conduct in jail was very bad which is evident from the list of several
punishment tickets issued to him in jail and at the time of incident he
was not even on duty and his name is dragged into this offence just
because he is trying to maintain discipline in the jail.
The investigation of the case is in final stage and from the
investigation conducted so far sufficient evidence has come on record
to prove involvement of above mentioned four accused namely Arun,
Ganpat, Kishan & Akash in the present case.
Report may kindly be submitted please”.
4. No post-mortem report of the deceased has been placed on record
before this Court. When this petition came up before this Court on 8th July
2021, this Court while issuing notice directed the State to submit a status
report, whereafter, the petitioner’s plea for transfer of investigation to CBI
was to be considered.
5. A report had been received from the Superintendant, Central Jail No.2
indicating that on the day of incident, Sh.Lalit, Warder and Sh.Parveen,
Warder were deployed on duty as Head Warder and Warder respectively in
Ward No. 2 in morning shift. At about 7:00 hours, they heard some hue and
cry in Barrack No. 4 of Ward No. 2. They rushed towards Barrack No. 4 of
Ward No. 2 where four UTPs/inmates namely Arun @ Mandva, Akash @
Hunny, Ganpat @ Niranjan and Kishan s/o Tejman were giving beatings to
inmate Shrikant @ R.Srikant @ Appu with cricket bat. Inmate Arun was
also injured and blood was oozing out of his head when the officials
intervened and separated the UTPs. Immediately, inmate Arun @ Mandav
was taken to jail dispensary where he was given stitches and UTP Shrikant
was asked to come to the jail dispensary however, he refused to go to the jail
dispensary. Thereafter, a team comprising of Assistant Superintendent
visited Ward No. 2 again where they found that UTP Shrikant was taking
bath. When the team enquired from Shrikant, he complained of trepidation
and pain in the body. The team also noted the injury in his body and took
him to jail dispensary from where he was referred to Safdarjung Hospital.
The search team also found one mobile phone and one iron patti from UTP
Shrikant. As claimed in the status report, at around 12.20 pm, a message
was received about the death of Shrikant @ Appu at about 11.50 am.
6. Vide order dated 8th July 2021, this Court directed the Director
General (Prisons) to file a detailed report indicating as to where and how
many CCTVs are installed in and around Barrack No. 4 of Ward No. 2. It
was also directed that the affidavit would be accompanied by a complete site
plan giving the locations of the said CCTVs and the place of incident and in
case, CCTVs are installed, explanation was also directed to be rendered that
why, immediately on receiving the information of the incident at the said
place, CCTV footages of the entire area were not preserved at that time.
7. A reply has been filed by the Director General (Prisons) along with
the site plan. As per the reply, most of the old CCTVs installed in Tihar Jail
have become non-functional and thus, a mega plan of installation of the
CCTVs is underway and at most of the places, they have been installed.
Director General (Prisons) who appears in person through video
conferencing states that the project of installation of CCTVs got delayed due
to Covid-19, however, efforts are being made to ensure that the newly
installed CCTVs become functional expedituously. He states that out of
6967 CCTVs to be installed, more than half of the CCTVs installed are
functional and rest would be functional by 15th August 2021.
8. It is thus evident that no CCTV footage of the incident is available.
However, the prime issue which now concerns this Court besides the
manner in which the death of the inmate has been caused, is, why no proper
investigation could be carried out despite the fact that a PCR call was made
from a phone number from the jail and the said phone number is duly
recorded in the PCR Call.
9. As noted above, in the status report, it is stated that the registered
owner of the mobile number 9311898547 from which PCR call was made is
one Ms. Hina, wife of Md. Irfan from whom enquiry was made and she
stated that she has lost her mobile phone having the said SIM and due to
ignorance, she had not lodged any complaint in this regard. She stated that
she does not know deceased Srikant and none of her acquaintance was
lodged in Tihar Jail. From the status report, it is apparent that the
investigation based on the mobile phone number as noted in the PCR still
appears to be incomplete. Claim of the sister of the deceased was that she
received a phone call from the deceased himself a day prior to the incident
from the jail, informing her that he would be murdered, however, there is no
investigation on the said point nor has the mobile of the sister been taken
nor have the call records been analysed which would have revealed
something nor has any investigation been carried out from the call records of
the mobile number 9311898547 from which PCR call was made. It has
been two months since the FIR in question has been registered.
10. Considering the fact that as per status report filed by the
Superintendent Jail, there was no apparent injury on the deceased, however,
the case of the petitioner is that there were deep injury marks on the
deceased and an indepth investigation is required to be conducted to find out
the circumstances under which the deceased made a phone call to his sister
expressing his apprehension of death and his subsequent death in the judicial
custody, this Court finds it fit to transfer the investigation of the case FIR in
question to CBI.
11. Status report will be filed by the concerned S.P., CBI after
investigation into the FIR in question well before the next date of hearing.
12. List on 29th September 2021.
13. Order be uploaded on the website of this Court.
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The Delhi High Court recently handed over the investigation into the supposed killing of a prisoner to the CBI. This happened after the court decided that a full and thorough investigation was needed. The prisoner was waiting for his trial inside Tihar Jail when he died.
Judge Mukta Gupta noticed that no one had looked into the dead man's sister's claim. She said her brother called her a day before he died, saying he was afraid he would be killed.
The Court ordered, "A report from the prison superintendent said there were no clear injuries on the dead man. However, the mother, who filed this case, claims there were deep wounds. A full investigation is needed to find out why the dead man called his sister, fearing for his life, and then died while in prison. For these reasons, this Court believes it is right to give this police case (FIR) to the CBI to investigate."
The dead man's mother started the legal process. She asked for the CBI to investigate and also for the security camera videos from around the time of his death to be saved.
The man who died had been in prison, waiting for his trial, since June 13, 2019, at Tihar Jail. He was announced dead on May 14, 2021, after being taken to Safdarjung Hospital. A police case (FIR) was then filed under sections for murder and common intention in Indian law.
According to a report from the prison superintendent, four other prisoners (also waiting for trial) were beating the dead man with a cricket bat. As a result, one of the other prisoners and the dead man got hurt. The dead man was then taken to the prison clinic and sent to Safdarjung Hospital for treatment, where he was pronounced dead.
The mother argued that pictures and videos of the dead body showed deep cuts on his legs and hands. She said these injuries could not have come from a cricket bat and must have been made by something sharp.
About the security camera videos, the Director General of Prisons said the old cameras in Tihar Jail weren't working. He added that a big project to install new cameras was happening, and most areas now had them.
They also said that out of nearly 7000 cameras planned, more than half of the installed cameras were working. The others would work by August 15, 2021.
The Court observed, "It's clear that there are no security camera videos of what happened. However, the main problem for this Court now, apart from how the prisoner died, is why a good investigation wasn't done. This is especially puzzling since someone made a police emergency call (PCR call) from a phone in the prison, and that phone number was officially noted in the police call record."
When the Court ordered the CBI to take over the investigation, it also asked for an update report to be handed in before the next court date.
The case will be discussed again on September 29.
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Appeal No. 383 of 1961. Appeal from the judgment and order dated July 21 1959, of the Special Bench of the Calcutta High Court in Matter No. 76 of 1952. D. R. Prem and R. L. Dhebar, for the appellant and respondents NOS. 2 and 3. section P. Desai and B. P. Maheshwari, for respondent No. 1 565 1962. April 30. The brief facts necessary for present purposes are these. The respondent had imported 2,000 drums of mineral oil. Out of this quantity, the appellant, the Collector of Customs, Calcutta, confiscated 50 drums by order dated September 20, 1950. He also imposed a personal penalty of Rs.61,000/on the respondent under the , No. 8 of 1878, (hereinafter referred to as the Act). The respondent appealed to the Central Board of Revenue under section 188 of the Act, and this appeal was dismissed in April 1952. Thereupon the respondent filed a petition under article 226 of the Constitution in the High Court. We are in the present appeal not concerned with the merits of the case put forward by the respondent, for the matter has not yet been heard on the merits. When the petition came up before a learned Single Judge a question was raised as to the jurisdiction of the High Court to hear the petition in view of the decision of this Court in Election Commission India vs Saka Venkata Subba Rao.(1) As the learned Single Judge considered the point important, he referred the matter to a larger bench; and eventually the question was considered by a Full Bench if the High Court. The Full Bench addressed itself two questions in that connection, namely, (i) whether any writ could issue against the Central Board of Revenue which was a party to the writ petition and which was permanently located outside the jurisdiction of the High Court, and (ii) whether if no writ could issue, against the Central Board of Revenue any writ could be issued against the appellant, which was the original authority to pass the order under challenge, when the appellate (1) ; , 566 authority (namely, the Central Board of Revenue) had merely dismissed the appeal. The Full Bench held on the first question. that the High Court, had no jurisdiction to issue a writ against the Central Board of Revenue in view of the Precision in the case of Sake Venkata Subba Rao.(1). On the second question, it held that as the Central Board of Revenue had merely dis missed the appeal against the order of the Collector of Customs Calcutta, the really operative order was the order of the appellant, which was located within the jurisdiction of the High Court, and therefore it had jurisdiction to pass an order against the Collector of Customs in spite of the fact that order had been taken in appeal (which was dismissed) to the Central Board of Revenue to which no writ, could be issued. The Full Bench further directed that the petition would be placed before the learned Single Judge for disposal in the light of its decision or, the question of jurisdiction. Thereupon there was an application for a certificate to appeal to this Court, which was granted; and that in how the matter has come up before us. The only question which 1ells for decision before us in the second question debated in the ' High Court,. namely, whatever the High Court would have jurisdiction to issue a writ against the Collector of Customs Calcutta in spite of the fact that his order was taken in appeal to the Central Board of Revenue against which the High Court could not issue a writ and the appeal had been dismissed. There seems to have been a difference of opinion amongst the High Courts in this matter. The Rajasthan High Courts in Barkatali vs Custodian General of Evacuee Property (1) held that where the A.I.R. (1904) Raj. 567 original authority passing the order was within the jurisdiction of the High Court but the appellate authority was not within such jurisdiction, the High Court would still have jurisdiction to issue a writ to the original authority, where the appellate authority had merely dismissed the appeal and the order of the original authority stood confirmed without any modification whatsoever. On the other hand, the PEPSU High Court in Joginder Singh Waryam Singh vs Director, Rural Rehabilitation. Pepsu Patiala, the Nagpur High Court in Burhanpur, National Textile Workers Union, vs Labour Appellate Tribunal of India at Bombay ( 2) and the Allahabad High Court in Azmat Ullah, vs Custodian, Evacuee Property (3 ) held otherwise, taking the view that even Where the appeal was merely dismissed, the order of the original authority merged in the order of the appellate authority, and if the appellate authority was beyond the territorial jurisdiction of the High Court, no writ could issue even to the original authority. It may be mentioned that the Rajasthan High Court had occasion to reconsider the matter after the decision of this Court in A. Thangal Kunju Mudaliar vs M. Venkita chalam Potti ( 4 ) and held that in view of that decision, itsearlier decision in Barkatali 's case (5) was no longer good law. The High Court has however not noticed this later decision of the Rajasthan High Court to which the learned Chief Justice who was party to the earlier Rajasthan case was also a party. The main reason which impelled the High Courts, which held otherwise, was that the order of the original authority got merged in the order of the Appellate authority when the appeal was disposed of and therefore if the High Court had no territorial jurisdiction to issue a writ against the appellate authority it could not issue a writ (1) A.I.R. (1955) Pepsu 91 (3) A. I. R. (1955) All 435. (2) A. I. R. (4) ; (5) A.I.R. (1954) Raj. 568 against the original authority, even though the appellate authority had merely dismissed the appeal without any modification of the order passed by the original authority. The question therefore turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first tori kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to bold even in a case where the appellate 569 authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order or the original authority even though it has DO territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it at issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal. It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision whether of reversal or modification or mere confirmation. This matter has been considered by this Court on a number of occasions after the decision in Saka Venkata Subba Rao 's case.(1) (1) ; 570 In A. Thangal Kunju Mudaliar 's case (1), though the point was not directly in issue in that case, the Court had occasion to consider the matter (see p. 1213) and it approved of the decisions of the PEPSU, Nagpur and Allahabad High Courts, (referred to above). Then in Commissioner of Income tax vs Messrs. Amritlal Bhogilal and Company (2), a similar question arose as to the merging of an order of the income tax officer into the order of the Appellate Assistant Commissioner passed in appeal in connection with the powers of the Commissioner of Income tax in revision. Though in that case the order of registration by the Income tax officer was held not to have merged in the order of the Assistant Commissioner on appeal in view of the special provisions of the Income tax Act, this Court observed as follows in that connection at p. 720 : ",There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmable of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. The matter was considered again by this Court, in Madan Gopal Rungta vs Secretary to the Government of Orissa (3) in connection with an order of the (1) (1955)2 S.C.R.1196. 12) (1959) S.C.R. 713, (3) (1962) (Supp.) 3 S.C.R. 966. 571 Central Government in revision under the Mineral Concession Rules, 1949, framed under the Mines and Minerals (Regulation and Development) Act, (No. 53 of 1948) and it was held that when the Central Government rejected the review. petition against the order of the State Government under the Mineral Concession Rules it was in effect rejecting the application of the appellant of that case for grant of the mining lease to him. The question of the original order with the appellate order was also considered in that case though it was pointed out in view of r.60 of the Mineral Concession Rules that it is the Central Government 's order in review which is the effective and final order. Learned counsel for the respondent sought to distinguish Madan Gopal Rungla 's case (1) on the ground that it was based mainly on an interpretation of r. 60 of the Mineral Concession Rules 1949, though he did not pursue this further when section 188 of the was pointed out to him. The main reliance however of the respondent both in the High Court and before us is on the decision in the State of Uttar Pradesh vs Mohmmed Nooh (2). That was a case where a public servant was dismissed on April 20, 1948 before the Constitu tion had come into force. His appeal from the order of dismissal was dismissed in May 1949 which was also before the Constitution came into force. His revision against the order in the appeal was dismissed on April 22, 1950, when the Constitution had come into force, and the question that arose in that case was whether the dismissed public servant could take advantage of the provisions of the Constitution because the revisional order had been passed after the Constitution came into force. In that case, this Court certainly held that the order of dismissal passed on April 20, 1948 could not be said to have merged in the orders in appeal and in revision. It (1) (1962) (Supp.) 3 S.C.R. 906. (2) ; 572 was pointed out that the order of dismissal was operative of its own strength as from April 20, 1948 and the public servant stood dismissed as from that date and therefore it was a case of dismissal before the Constitution came into force and the. public servant could not take advantage of the provisions of the Constitution in view of the fact that his dismissal had taken place before the Constitution had come into force. As was pointed out in Madan Gopal Rungta 's, case(1) Mohammad Nooh 's case (2) was a special case, which stands on its own facts. The question there was whether a writ under article 226 could be issued in respect of a dismissal which was effective from 1948. The relief that was being sought was against an order of dismissal which came into existence before the Constitution came into force and remained effective all along even after the dismissal of the appeal and the revision from that order. It was in those special circumstances that this Court held that the dismissal had taken place in 1948 and it could not be the subject matter of consideration under Art.226 of the constitution, for that would be giving retrospective effect to the Article. The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, (i) that the principle of merger applicable to decrees of courts would not be applicable to departmental tribunals, and (ii) that the original order would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision. in effect, this means that even if the principle of merger were applicable to an order of dismissed like the one in Mohammad Nooh 's case, (2) the fact would still remain that the dismissal was before the Constitution came into force and therefore the person dismiss could not take advantage of the provisions of the Constitution, so (1) (1962)(Supp.)3 S.C.R.906. (2) ; 573 far as that dismissal was concerned. That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Mudaliar 's case (1) as well as in Messrs. Amritlal Bhogilat 's (2) that the order of the origin%] authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original autbority which is within its jurisdiction so long as it can not issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority. We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition with costs. Appeal allowed. (1) ; (2) (1959) S.C.R. 713.
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Someone brought in 2,000 containers of mineral oil. The government took 50 containers and fined that person. The Central Board of Revenue (a tax court) said no to the person's appeal. The person then asked the Calcutta High Court for help, using a part of the Constitution (article 226). The High Court said it couldn't tell the Central Board of Revenue what to do, based on a past court case (Saka Venkata Subbha Rao). But, since the Central Board of Revenue only said no to the appeal of the government’s order, the High Court said it *could* tell the government what to do. The government then went to a higher court (this Court) after getting permission. This Court said that the government's actions were now part of what the Central Board of Revenue decided. So, the High Court couldn't tell the government what to do. Once an appeal is decided, only the decision from the appeal matters. It doesn't matter if the appeal changes the original order, fixes it, or agrees with it. The decision from the appeal is just as important as if it had changed the original order. Since the Central Board of Revenue was outside the High Court's area, the High Court couldn't tell the government what to do, even though the government was in its area. Election Commission, India vs Saka Vankata Subba Rao, , A. Thangal Kunju Mudatiar vs M. Venkitachalam Poiti, ; , Commissioner of Income tax vs M/s. Amritlal Bhogilal & Co. [1959] section C. R. 713 and Madan Gopal Rungta vs Secretary to the Government of Orissa, (1962) (Supp.) 3 S.C.R. were followed. Barkatali vs Custodian General of Evacuee Property, A. 1. R. , was overruled. Joginder Singh Waryam Singh vs Director, Rural Rehabilitation, Pepsu, Patiala, A. 1. R. 1955 Pepsu 91, Burhanpur National Textile Workers Union vs Labour Appellate Tribunal of India at Bombay, A. I. R. , and Azmat Ullah vs Custodian, Evacuee Property, A.I.R. 1955 All 435, were approved. State of U. P. vs Mohammed Nooh, ; , was distinguished.
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Each of these appeals is by special leave and is directed against the Award made in different disputes by the Labour Court. The common justification for ignoring the High Court and approaching this Court directly by way of special leave, according to Mr. Jitendra Sharma for each of the appellants, is that there are a couple of Full Bench decisions of the Punjab and Haryana High Court holding that the Irrigation Department of the State Government of Punjab is not an 'industry ' and no useful purpose would have been served by routing the matters through the High Court as the Full Bench decision would have been followed. The appellant in the remaining appeal was an operator in the Mechanical Division, Rohtak under the Irrigation Department of Haryana State. In each of these cases challenge was advanced by the governmental authority to the maintainability of the application before the Labour Court on the ground that the employer was not an 'industry ' and the did not apply. The common question in these appeals, therefore, is as to whether the Irrigation Department of either Government is an 'industry '. The amended definition of "industry" is as follows: "Industry means any systematic activity carried on by co operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, (i) any capital has been invested for the purpose of carrying on such activity; or (ii) such activity is carried on with a motive to make any gain or profit, and includes (a) any activity of the Dock Labour Board established under Section 5A of the ; (b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include (1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one, Explanation: For the purposes of this sub clause, 'agricultural operation ' does not include any activity carried on in a 621 plantation as defined in clause (f) of Section 2 of the ; or (2) hospitals or dispensaries; or (3) educational, scientific, research or training institutions; or (4) institutions owned or managed by organisation wholly or substantially engaged in any charitable, social or philanthropic service; or (5) khadi or village industries; or (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or (7) any domestic service; or (8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or (9) any activity, being an activity carried on by a cooperative society or a club or any other like body of individuals, if the number of persons employed by the cooperative society, club or other like body of individuals in relation to such activity is less than ten;" Since the amended statutory definition is not yet in force, the parent definition and judicial pronouncements have to be referred to for finding the law. In case the Irrigation Department is accepted to be "industry", there is no dispute that each of the appellants would be a "workman" and each of the claims would constitute an "industrial dispute" as defined in Section 2(s) and (k) respectively. Mukherjee & Ors., 622 ; considered the scope of the definition of industry. Chandrashekhara Aiyer, J. speaking for the Court stated: "It is therefore incumbent on us to ascertain what the statute means by industry and industrial dispute, leaving aside the original meaning attributed to the words in a simpler state of society, when we had only one employer perhaps, doing a particular trade or carrying on a particular business with the help of his own tools, material and skill and employing a few workmen in the process of production or manufacture, and when such disputes that occurred did not go behind individual levels into acute fights between rival organisations of workmen and employers; and when large scale strikes and lock outs throwing society into chaos and confusion were practically unknown. We can assume therefore that it was to meet such a situation that the was enacted, and it is consequently necessary to give the terms employed in the referring to such disputes as wide an import as reasonably possible. Though the word undertaking in the definition of industry is wedged in between business and trade on the one hand and manufacture on the other, and though therefore it might mean only a business or trade undertaking, still it must be remembered that if that were so, there was no need to use the word separately from business or trade. Undertaking in the first part of the definition and industrial occupation or avocation in the second part obviously mean much more than what is ordinarily understood by trade or business. The ratio in Mukherjee 's case was relied upon by a three Judge Bench in State of Bombay & Ors. "Besides, it would be relevant to point out that too much reliance cannot be placed on what are described as the essential attributes or features of trade or business as conventionally understood. Industrial adjudication has necessarily to be aware of the current of socio economic thought around; it must recognise that in the modern welfare State healthy industrial relations are a matter of paramount importance and its essential function is to assist the State by helping a solution of industrial disputes which constitute a distinct and persistent phenomenon of modern industrialised States in attempting to solve industrial disputes, industrial adjudication does not and should not adopt a doctrinaire approach. Negatively stated the activities of the Government which can be properly described as regal or sovereign activities are outside the scope of section 2(j). An attempt is, however, made by the appellant to suggest that in view of the Directive Principles enunciated in of the Constitution and in view of the ideal of a welfare state which has been placed before the country, Governments, both at the level of States as well as at the Centre undertake several welfare activities; and the argument is that the field of governmental or regal activities which are excluded from the operation of section 2(j) should be extended to cover other activities undertaken by the Governments in pursuit of their welfare policies. The activities which do not fall within section 2(j) and which are described as governmental or regal or sovereign have been pithily described by Lord Watson as 'the primary and inalienable functions of a constitutional Government '; and it is only these activities that are outside the scope of section 2(j). Within a couple of weeks from the Hospital Mazdoor Sabha 's case (supra), the same Bench in the case of Corporation of the City of Nagpur vs Its Employees, ; , this time Subba Rao, J., as he then was, speaking for the Court examined the self same question. Before the Court were available two precedents Mukherjee 's case 625 (supra) and Hospital Mazdoor Sabha 's case (supra) and it was stated: "Before considering the positive aspects of the definition, what is not an industry may be considered. However wide the definition of industry may be, it cannot include the regal or soveriegn functions of State. While the learned counsel for the Corporation would like to enlarge the scope of these functions so as to comprehend all the welfare activities of a modern State, the learned counsel for the respondents would seek to confine them to what are aptly termed the primary and inalienable functions of a constitutional Government " The Court analysed the activities of the various departments of the Corporation and observed: "We can also visualize different situations. A particular activity of a municipality may be covered by the definition of industry. But there may be cases where the said two departments may not only be in charge of a particular activity or service covered by the definition of industry but also in charge of other activity or activities falling outside the definition of industry. If an activity falls under either part of the definition it will be an industry within the meaning of the . (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (6) If a department of a municipality discharges many functions some pertaining to industry as defined in the and the other non industrial activities, the predominant functions of the department shall be the criterion for the purposes of the . " Applying these tests, this Court examined as to whether the various departments of the Corporation came within the definition or not. Then came the decision of a Constitution Bench in the case of Management of Safdarjung Hospital vs Kuldip Singh Sethi; , where Chief Justice Hidayatullah spoke for the Court. the learned Chief Justice observed: "This definition is in two parts. The first part says that it means any business, trade, undertaking, manufacture or calling of employers and then goes on to say that includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen . "Therefore, an industry is to be found when the employers are carrying on any business, trade, undertaking, manufacture or calling of employers. If they are not, there is no industry as such. The normal cases are those in which the production or distribution is of material goods or wealth and they will fall within the expressions trade, business or manufacture. ' Then came the case of Bangalore Water Supply and Sewerage Board vs A. Rajappa & Ors ; This time the same point was before a seven Judge Bench of this Court. 628 "Industry as defined in section 2(j) and explained in Banerjee (supra) has a wide import. the employer employee basis, bears resemblance to what we find in trade or business. The dominant nature test: (a) Where a complex of activities, some of which qualify for exemption others not, involves employees on the total undertaking, some of whom are not workmen as in 630 the University of Delhi vs Ram Nath; , or A some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be the true test. In paragraph 149 of the judgment, the learned Chief Justice observed: "In his heroic efforts, my learned brother Krishna Iyer, if I may say so with great respect, has not discarded the tests of industry formulated in the past. Banerjee 's case, and, after that, in Corporation of the City of Nagpur vs Its Employees, and State of Bombay vs The Hospital Mazdoor Sabha to their pristine glory. " For objectivity, we have to look first to the words 631 used in the statutory provision defining industry in an attempt to find the meaning. It raises doubts as to what could be meant by the calling of employers even if business, trade, undertaking or manufacture could be found capable of being more clearly delineated. In paragraph 165 of the judgment, the learned Chief Justice added: G "I have contended myself with a very brief and hurried outline of my line of thinking partly because I am in agreement with the conclusions of my learned brother Krishna Iyer and I also endorse his reasoning almost wholly, but even more because the opinion I have dictated 632 just now must be given today if I have to deliver it at all. Therefore, I have really no time to discuss the large number of cases cited before us, including those what are known as sovereign functions. " added a note by saying: "We are in respectful agreement with the view expressed by Krishna Iyer, J. that the appeal should be dismissed. The learned Chief Justice (because by then he had assumed that office) referred to several authorities and tests and in paragraph 181 of the judgment stated: ". The remaining two learned Judges added their separate opinion and in the concluding part stated: "In view of the difficulty experienced by all of us in defining the true denotation of the term industry and divergence of opinion in regard thereto as has been the case with this Bench also we think, it is high time that the Legislature steps in with a comprehensive bill to clear up the fog and remove the doubts and set at rest once for all the controversy which crops up from time to time in relation to the meaning of the aforesaid term rendering it necessary for larger Benches of this Court to be constituted which are driven to the necessity of evolving a working formula to cover particular cases. " Bare Acts and Commentaries on the have, however, brought in the new definition by deleting the old one with a note that the new provision has yet to come into force. We may extract a part of the Report: "The irrigation department which was set up more than 100 years ago is mainly responsible to provide water supplies for the substance and development of agriculture in the 30.36 hectare cultivable area of the State covered by canal command. This requires harnessing of the surface and grounds water resources of the State and their equitable distribution to the beneficiaries, within Canal Command area. This task involves construction of multipurposes, major, medium and minor irrigation projects, maintenance of net work of channels, regulation of canal supplies, enforcement of water laws etc. Besides the irrigation the department also provides water for drinking purposes to villages and towns in the State. The canal water supplies are also being made available for the industrial development in areas where no other source for water supplies exists". This work is also done by the Department." "Having shared with the neighbouring States almost entire water resources of the rivers flowing through the Punjab water has now become a constraint to keep the tempo of the development of irrigated agriculture in the State. There is a full Bench judgment of the Punjab and Haryana High Court in the case of Om Prakash vs M/s Executive Engineers, SYL, Kurukshetra & Ors. 349 where the question that came up for consideration before the full Bench was thus stated; whether the irrigation department of the State (of Punjab) comes within the ambit of industry in section 2(j) of the Industrial disputes Act, 1947? The Court took into account the judgment of another full Bench decision of the same Court in the case of State of Punjab vs Kuldip Singh & Anr., where the question for consideration was whether the Public Works Department of the State Government was an industry. It also took into account the position of the Irrigation Department in Punjab keeping in the background the provisions of the of 1873 and stated: "The irrigation department is a branch of the public works department. All these projects have been carried out by the state at the state expense. It is understandable that such projects could not at all be undertaken by private enterpreneurs or could be left in their hands for execution. Thus it would be evident that the water has at all times been a State subject and the State can exercise full executive powers in all matters connected with the water. The State supplies water to the farmers through the network of canals. In other words, the State does not sell water to the farmers. Merely this fact that water is supplied by charging certain rates cannot warrant a finding that the state is indulging in trade or business activity or an activity which is analogous to trade, business or economic venture. From what has been stated above, there can be gainsaying that the functions of the irrigation department cannot at all be left to private enterprise. The facts which weighed in holding that the construction and maintenance of national and state highways by the State does not come within the ambit of industry in Kuldip Singh 's case (supra) are present so far as the irrigation department is concerned . In this view of the matter, I hold that the functions of the irrigation departments are essentially government functions and that these functions neither partake of the nature of trade and business nor are even remotely analogous thereto and that this department does not come within the ambit of industry as defined in section 2(j) of the Act." Mr. Shalma for the appellants placed before us some cases of different High Courts in support of his stand that the Irrigation Department should be considered as industry. On the facts found therein, the High Court came to the conclusion that it came within the definition under section 2(j) of the Act. In State of Rajasthan vs The Industrial Tribunal, Rajasthan, the question for consideration before the Rajasthan High Court was whether the Survey and Investigation Division of Irrigation Department was an industry. In paragraph 26, the learned Judge came to the conclusion by saying: "In view of the aforesaid decisions of the Supreme Court, I find it difficult to hold that the activities of the 639 State Government by organising its Survey and Investigation. Division in the Irrigation Department through which the State Government rendered services in the matter of supplying water by constructing canals and dams does not fall within the ambit of the sovereign or regal functions of the State. If in the opinion of the learned Judge, it was difficult to hold that the activities did not fall within the ambit of the sovereign or regal functions, then the conclusion should have been different. vs State of Bihar & Ors. 207, a Division Bench of the Patna High Court was considering if the Public Health Engineering Department of the State of Bihar was an industry. In paragraph 8 of the judgment, reliance was placed on the Bangalore Water Supply case (supra) and the Nagpur Corporation case (supra) and it was held that the said department of the State Government of Bihar was an industry. In Chief Engineer, Irrigation, Orissa vs Harihar Patra & Anr., a Division Bench of the orissa High Court was considering whether the Salandi Irrigation Project in that State was an industry. The High Court relied upon the earlier full Bench decision of its own Court and some of the decisions of this Court which we have referred to above, and came to hold that the irrigation project was an industry. On the tests, as already laid down in the judgments, we do not think these facts found in this case can take out the Irrigation Department outside the purview of the definition of 'industry '. We have not been able to gather as to why even six years after the amendment has been brought to the definition of industry in section 2(j) of the Act the same has not been brought into force. This Court on more than one occasion has indicated that the position should be clarified by an appropriate amendment and when keeping in view the opinion of this Court, the law was sought to be amended, it is 640 appropriate that the same should be brought into force as such or with such further alterations as may be considered necessary, and the legislative view of the matter is made known and the confusion in the field is cleared up. We make it clear that in the event of the definition of industry being changed either by enforcement of the new definition of industry or by any other legislative change, it would always be open to the aggrieved Irrigation Department to raise the issue again and the present decision would not stand in the way of such an attempt in view of the altered situation.
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These appeals were made to challenge the Labour Court's decisions. The first appellant, a foreman for the Irrigation Department, asked the Labour Court to help him get back pay for annual raises. The second appellant was a worker in the P.W.D. Drainage Division. He was fired without following the proper legal steps, so he took his case to the Labour Court. The last appellant was an operator for the Irrigation Department in Haryana State. He was also fired, and he challenged his firing in the Labour Court. In each case, the government argued that the Labour Court didn't have the authority to hear the case because the employer wasn't an "industry," and the relevant labor laws didn't apply. The Labour Court agreed and denied the workers' requests. The higher court allowed the appeals, making these points: The main question was whether the Irrigation Department counted as an "industry." The law defines "industry" in Section 2(j) of the Act. This definition was changed by an amendment, but that change hasn't taken effect yet. Because the new definition isn't in use, the old definition and past court rulings must be used to understand the law. Previous court cases already address this issue, so it's not necessary to look beyond those precedents. If the Irrigation Department is an "industry," then each worker would be considered a "workman," and their complaints would be "industrial disputes," as defined in the law. The court noted that Haryana and Punjab used to be one state, and Haryana became separate in 1966. The Irrigation Department of the old Punjab State was fulfilling the state's duties under the law. The Irrigation Department's report from 1981-82 was presented to the Court. The workers' lawyer presented cases from other High Courts to support the argument that the Irrigation Department should be considered an industry. Based on previous court rulings, the Court didn't believe the details of this case removed the Irrigation Department from the definition of "Industry." The Irrigation Department's main jobs, when tested using the "Dominant Nature" test from a previous case, clearly fit within the meaning of industry. Perhaps keeping the earlier judges' thoughts in mind, the definition of "industry" was changed in the law. However, the Court couldn't understand why, even six years after the change to the definition of "industry," it still hadn't been put into effect. The court had previously suggested that this issue should be clarified with an amendment. When the law was being amended, based on the Court's advice, it should have been put into effect, either as it was or with any necessary changes, to make the legal view clear and remove confusion. Law books now include the new definition but note that it hasn't taken effect, which adds to the confusion. The appeals were successful. The Court clarified that if the definition of "industry" is changed in the future, either by putting the new definition into effect or by another legal change, the Irrigation Department can raise the issue again. This decision won't prevent them from doing so if the situation changes.
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iminal Appeal No. 60 of 1962. Appeal by special Leave from the judgment and order dated October 25, 1961, of the Punjab High Court in Criminal Appeal No. 890 of 1961 of Murder Reference No. 74 of 1961. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for appellant. Gopal Singh, D. Gupta, P. D. Menon, for respondent. April 27. The Judgment of the Court was delivered by DAS GUPTA, J. The Appellant was convicted by the Sessions Judge, Patiala, of an offence under s.302 of the Indian Penal Code for the murder of Gurdev Singh and sentenced to death. The Punjab High Court dismissed his appeal and confined the sentence of death. The present appeal is on the strength of special granted by this Court. The prosecution case is that at about 2.30 p.m. on November 18, 1960 when Gurdev Singh was passing the tea stall of Cbaran Singh, not far from the courts at Barnala on a motor cycle, the appellant Sewa Singh, who was at that time in that shop with a double barrel gun stood up and fired a shot at him. Gurdev Singh was hit on the right side of his chest and died instantaneously. The appellant and one Gogar Singh, who was with him, ran away. The accused pleaded not guilty. It was not disputed that Gurdev Singh had died of a gun shot 547 injury at the time and place as alleged. It was satr entiously contended, however, that he was not the culprit. According to the prosecution this occurrence was witnessed by Charan Singh, the owner of the shop and Mukhtiar Singh, a Student, and Bakhtawar Singh, the two persons who were having tea in the shop. At the trial Charan Singh denied any knowledge as to who had fired the shot and was declared hostile by the prosecution. The other two witnesses gave evidence that they saw the present appellant, who was known to them from before, firing the shot from a double barrel gun. Their evidence was believed by the Trial Judge and also by the High Court. In support of the appeal it is contended by Mr. Sethi that we should look at the evidence ourselves as the High Court does not appear to have taken into consideration, in appreciating the evidence, the Characteristics of the injuries caused by the shot. He has drawn our attention to a decision of this Court in Zora Singh vs The State of Punjab (Criminal Appeal No. 81 of 1957: Judgment delivered on 10.5 1957). According to the learned Counsel these features of the injury as they appear from the Doctor 's evidence clearly show that when the gun was fired it was held in close contact with the body of the victim or within two or three inches of it. This, argues the learned Counsel, shows that the witnesses who have claimed to have been the occurrence did not actually see the occurrence as they give a totally different version as regards the distance of the gun from the body of the victim. It has to be mentioned that the judgment of the High Court contains no discussion on this point and it does not appear that the attention of the learned Judges was 548 drawn to the features of the injury on which we are now asked to hold that the shot which killed Gurudev Singh was fired from a very close range, not exceeding a few inches. Even so, we have thought it proper to hear the Counsel on this question, ,.is in our view these features ought ordinarily to be taken into consideration in assessing the value of the evidence of the eye witnesses. The doctor 's evidence shows: (1) that the wound caused was a roundish, wound 1 1/2"x 1 1/4" communicating with the right chest cavity; (2) that the wound was plugged with a cork wadding and card board disc of 12 bore cartridge; (3) that the right fourth and fifth ribs were blown off under the wound and also the right lung was punctured over an area 2 1/2"x 2" about in its middle lobe about its interior margin in the middle which was blown off, (4) that the woollen coat, which was on the body of the deceased, was bloodstained with a corresponding rent blackened charred; the shirt was also blood stained with a corresponding rent blackened. The doctor gave the opinion that the distance from which the shot was fired might be three to four feet. There was some cross examination of the doctor in the Committing Court but the correctness of this opinion was not challenged. The doctor did not appear to give evidence before the Sessions Court. His deposition as recorded by the Committing Court was treated as evidence in the Sessions Court under the provisions of s.509 of the Code of Criminal Procedure. Turning first to the size of the wound it appears to us that far from supporting the theory of death having been caused by a contact shot it indicates that the shot was fired from about a yard away. Speaking of ordinary shot guns, Sir Sidney Smith in his Forensic Medicine, 9th Edition; page 182 says : "At about a yard the charge of shot will enter as one mass,. making a whole with irregular 549 edges about an inch in diameter." Major Sir Gerald Burrard in his Identification of firearms and Forenisic Ballistics says at P.73 : "It may be assumed for all practical purposes that if the diameter of the wound is an inch, or less, than the distance of the shot was 18 inches or under, irrespective of the gauge of the shotgun or the degree of choke. Up to 2 feet there is very little difference in the spread between guns of various and different obokes, the hole at this distance being slightly over an inch in diameter. At 3 feet the hole is nearly 1 1/2 inches in diameter, and the difference between the two extremes of boring, true cylinder and full choke, begins to be evident. ' In Lyon 's Medical Jurisprudence, 10th Edition, we find stated at p. 279 thus: "At a distance of 3 feet the shot mass begins to spread, the wound is an inch or slightly more in diameter. " In Taylor 's Principles and practice of Medical Jurisprudence, 11th Edition, 'the matter is described thus at page 334: In the case of shot guns the distance from which the weapon was fired may be deduce d from the amount of scattering of the charge. Up to about a yard the whole of the charge enters in a mass, producing a round hole about the size of the bore of the weapon. . . In view of these authorities, it is reasonable to hold even without knowing whether the gun had an unchoked or a choked barrel that a roundish wound of 1 1 /2" x 1 1/4" would be caused if the gun is fired at a distance of about a yard. We are unable to agree that the burning of the clothes as described by the doctor is any indication that the shot was fired from within a few inches. Mr. Sethi has drawn our attention to the statement made in the several text books that whet the gun is fired from a distance of only a few inched; the wound would be surrounded by a zone of black ening and burning. in the Present case no mark 550 of blackening or burning were noticed by the doctor on the skin round the wound or in the depths of the wound; but the rent in the woollen coat was found blackened and charged and the rent in the shirt blackened. On this question it is important to mention the opinion as given in the Taylor 's Principle and Practice of Medical Jurisprudence, 10th Edition at p. 441 thus: "The amount or degree to which the clothes and body of a person may be burnt by the near discharge of firearms has given rise to a medico legal inquiry. The facts in any given case can be determined only by experiments with the actual weapon used, and loaded as nearly as possible in the same manner as it was when used for the purpose which are being investigated. It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver." According to this view therefore marks of burning may be found in the clothes or body of a person if the shot was fired at a distance of a yard or a yard and a half with a shot gun. Even though this opinion is not reiterated in Taylor 's 11th Edition, it seems clear, in view of this opinion that the presence of the burning marks in the clothes cannot from a reasonable basis for holding that the gun was fired in this case from the close range of a few inches only. It is necessary next to consider the fact that the cork was found lodged in the body. Glaister 551 in Medical Jurisprudence and Texicology, 9th Edition at p. 265 says, while speaking of a shot fired close to the body surface up to a few inches that "the wad may be forced in the wound. " It appeas to be clear that in a contact wound the wad is likely to enter the body. But the authorities are not so clear to the maximum distance at which the wad may enter the body. The nearest statement appears to be given by Sir Sidney Smith in his Forensic Medicine, 9th Edition at p. 182 thus : " 'the wads enter with the projectile in near discharges. " Reading this statement in the light of the discussion in the previous paragraphs, it appears to us that a discharge up to yard has been considered by the learned author as a near discharge. The fact that the wad was lodged in the wound appears therefore to be quite consistent with the shot having been fired from about a yard. It remains to consider what the doctors has described as the "blowing off" of the ribs and a part of the right lung. This description, if correctly given, indicates the entry of gas into the wound and that, it is true, ordinarily takes place only if the shot is fired within a few inches of the body, As we have already noticed however, the dimension of the wound itself is a clear indication that shot was fired at a distance of about a yard. There is thus some apparent inconsistency between what is indicated by the size of the wound and what the doctors has described as "the blowing off" of the ribs and a par of the right lung. As there is less likelihood of any mistake being made in the measurement of the wound than about the doctor 's view about the "blowing off" of the ribs. , we are of opinion that what the doctor has described as "blowing off" is not a good reason for thinking that the shot was fired only a few inches off from the body. 552 On a consideration of all the features of the wound as described by the doctors together, we have come to the conclusion that the doctor 's opinion as given in his examination in chief, which was not challenged in cross examination before the Committing Magistrate, that the shot may have been fired about three to four feet away should be accepted as correct. We find no reason therefore interfere with the assessment of evidence as made by the High Court and also with the order, of conviction and sentence passed by it. The appeal is accordingly dismissed. Appeal dismissed.
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Someone was found guilty of murder and was sentenced to death. Two people who saw the crime said that he shot and killed the person who died from a store. The person who died was riding a motorcycle. The doctor who looked at the body after death said the shot could have been fired from three or four feet away. No one asked the doctor questions to challenge this information in court. The person who was found guilty appealed to the High Court, but the court agreed with the first decision. The case was then brought to the Supreme Court for review. The main argument for the person found guilty was that the High Court didn't consider important details about the wound. These details could have shown the person was shot from only a few inches away, not the distance the witnesses claimed. It was argued that if the High Court had looked at these details, they might not have believed the witnesses. The court decided that the details of the deadly wound should be considered when deciding how much weight to give to what the witnesses said. After looking at all the details of the wound that the doctor described, the court agreed with the doctor's opinion. Since no one questioned the doctor's opinion that the shot was fired from three to four feet away, the court believed it was correct.
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
hri Abhinav Dhanodkar - Advocate for the petitioner (WP
1408/2016).
Shri L.C.Patne - Advocate for the petitioner (WP No. 5052/2016).
Shri Himanshu Joshi - Dy. Solicitor General for the respondent/UoI
hri Bhuwan Deshmukh - Government Advocate for the respondent/State.
Shri Piyush Dubey - Advocate for the respondent/intervener.
Heard on I.A.Nos. 3612/2024 and 3613/2024 applications for intervention.
These applications have been filed by the Doctors who have completed their six months training nominated for "Fundamental Abdomino- Pelvic Ultrasonography : Level 1 and aspiring to appear in the Competency - Based Evaluation test (CBE). On account of the interim orders passed in this petition, they are unable to appear in the examination in order to register themselves for performing sonography.
Keeping in view the reasons mentioned in the application and the fact that there is no reply filed by the petitioner or respondents the intervention applications, the same is allowed. The interveners are permitted to intervene in the present writ petition.
I.A.Nos. 3612/2024 and 3613/2024 are allowed and disposed of.
2 WP-1408-2016 Vide order dated 06.11.2023 application for vacating stay was disposed of with a direction to list the case for final hearing in the month of January, 2024. Even after lapse of about a year, the petitions could not be heard finally. Vide order dated 13.07.2016, this Court stayed the operation of Annexure P/4 dated 26.02.2015 and notification dated 23.06.2016. Thereafter, vide order dated 19.10.2023 fresh notification for conducting the CBE test in the month of November, 2023 was also stayed.
Learned counsel for the respondents and interveners submit that due to the interim orders passed by this Court, they are unable to appear in the CBE test under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 and Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 to register themselves as Sonologist.
Shri Abhinav Dhanodkar, learned counsel for petitioners submits that the members of petitioner No.1/society are qualified for registration under the Rules of 1996 as Sonologists as each one of them was registered medical practitioner and had six months training or one year experience in sonography. Hence, this vested right accrued to them cannot be taken away by compelling them to undertake six months training as provided in the Rules of 2014. In this case, the notification was issued for conducting examination in the year 2016 and thereafter in the year 2023. But due to interim order passed by this Court, no examination could be conducted and the medical practitioners are unable to practice as sonologist. At the most, the interest of members of petitioner No.1 society can be protected by 3 WP-1408-2016 observing that the impugned Rule 3(3)(b) of Rules of 1996 and Rules 6 & 9 of the Rules of 2014 shall not come in the their way during the pendency of the petitions and simultaneously respondents may be directed to conduct the examination Competency Based Evaluation test (CBE) in confirmation with the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014.
Considering the aforesaid, respondents are directed to complete the examination process initiated vide notification dated 12.10.2023. It is made clear that this examination will not come in the way of the members of petitioner No.1/society working as Sonologists.
List for final hearing in due course as similar issue is pending consideration before the Apex Court.
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The Madhya Pradesh High Court heard a case involving doctors who had finished six months of training. These doctors asked to join the case so they could take a special exam called the Competency-Based Evaluation (CBE) test. Two judges, Vivek Rusia and Binod Kumar Dwivedi, allowed these doctors to join the case. In this matter, these doctors had applied to join because they completed their training and wanted to take the CBE test. However, the Court had issued temporary orders that stopped these CBE tests. This prevented the doctors from becoming officially registered as Sonologists, who are doctors trained in using ultrasound. The Court had put a hold on a document from 2015 and an official announcement from 2016. Later, in October 2023, the Court issued another temporary stop, blocking the CBE test planned for November 2023. Requests to remove these stops were handled in November 2023, and the Court decided the main case would be heard in January 2024. Despite this, the core issue was still not settled.
The group that first brought the case, called the petitioner society, argued that its members were already qualified to register as Sonologists. They said this was according to the 1996 Rules, which aim to prevent doctors from telling parents the sex of their baby before birth. To qualify under these rules, doctors needed six months of training or one year of experience in using ultrasound. The society argued that new rules from 2014, which require an *additional* six months of training, should not take away the legal rights their members already had.
The Court realized that its temporary orders were stopping doctors from working and trainees from taking important exams. This meant the situation needed to be fixed. The Court carefully considered the existing legal rights of the original group's members. It also considered the need for the doctors who joined the case to complete their registration process. After weighing these points, the Court allowed the new doctors to join the case. The Court then ordered the opposing side to hold the CBE test, following the official announcement from October 2023 and the 2014 Rules. The Court also explained that this exam would not stop members of the original group who were already working as Sonologists. This was to make sure their established legal rights remained protected while the case was still being decided.
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399 of 1952. Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus, Godavari Parutekar, the petitioner, in person. M. C. Setalvad, Attorney General for India, (G.N. Joshi and P. A. Mehta, with him) for the respondent. December 5. The Judgment of the Court was delivered by BosE J. This is a habeas corpus petition under article 32 of the Constitution. The petitioner was detained the, 16th of October, 1951, under the of 1950 as amended in 1951. Her detention was actually longer than this but the earlier detentions were under a different set of orders which are not relevant to the present matter. The present detention is based an order of the District Magistrate, Thana, and merely says that the petitioner be detained, without specifying any period. The order of confirmation was passed the 4th of January, 1952, and there again no period was specified. The petitioner 's case is that as no period was specified in the order her period of detention expired the 31st of March, 1952, because of the amending Act of 1951 ; or at the outside the 30th of September, 1952, because of Act XXXIV of 1952 which effected a further amendment. The reply behalf of the State of Bombay is that the of 1950 was again amended by Act LXI of 1952 and that the effect of this amendment was to carry the petitioner 's detention to the 31st of March, 1953, because of section 11 A which was added to the original Act of 1950. The petitioner counters by saying that the new Act does not apply to cases in which the order of detention is not silent about its duration and so section 11 A does not serve to extend the period of her detention. She relies the following portion of section II A (2) ". every detention order which has been confirmed under section 11 before the commencement of the Preventive Detention (Second Amendment) Act 1952, shall, unless a shorter priod is specified in the order, continue to remain in force until the Ist day of April, 1953. " The petitioner concedes that no shorter period is specified in her order of detention but contends that as her detention would have expired either the 31st of March, 1952, or the 30th of September, 1952, one of those two dates must now be read into the order and when that is done we have an order which specifies as shorter period, therefore section 11 A (2) does not serve to extend her detention. We are unable to accept this contention. The section is clear and unless a shorter period is specified in the order, section I 1 A(2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the section. We hold therefore that section 11 A(2) validly extended the period of detention till the Ist of April, 1953. 1 The petitioner 's next point is based articles 14 and 22(i)(b) of the Constitution. ' It arises in this way. Section 3 (1) (a) of the of 1950 classifies grounds of permissible detention into three categories. Article 22 (7) (b) empowers Parliament to prescribe the maximum period for which any person may "in any class or classes of cases" be detained. The petitioner argues that this permits only one maximum for each class and that if different maxima are provided for "equals" within a class it offends not only article 22 (7) (b) but also article 14 as interpreted by the decisions of this Court, She next argues that section 11 A, now introduced by the second amending Act of 1952 (Act LXI of 1952), does just that and so is ultra vires. Her point is put as follows. Sub section (1) of section 11 A states that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 1 1 shall be twelve months from the date of detention. But sub section (2) qualifies this by dividing detentions into two classes; 213 (a) those in which the detention order was confirmed before 30th of September, 1952, and (b) those in which the confirmation was after that date, and it provides that. in the former case, unless a shorter period is specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later. This, she says, introduces a fresh classification which divides detentions into those before the Act and those after. That, she says, is ultra vires, first, because it introduces a discriminatory classification in the class to which she belongs under section 3 of the Act and, second, because it entails discrimination even in the fresh class into which she has been thrown by the new sub division, made by the second amending Act of 1952. As regards the first point, the ratio decidendi in Shamrao V. Parulekar vs The District Magistrate, Thana, and Others(1) applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time. The life of the Act of 1950, which was the principal Act, was extended till the 1st of October, 1952, by section 2 of the amending Act (Act XXXIV of 1952), and the effect of section 3 was to prolong the ' life of all detentions in force on 14th of March 1952, (provided they had been confirmed before that date) for so long as the principal Act was in force. At that date this meant till the 1st of October, 1952. But the second amending Act of 1952 extended the life of the principal Act till the 31st of December,1954. Therefore, in the absence of section 11 A all those detentions would have been extended till that date. But section 11 A modified that and put 1st of April,1953, as the latest date for these old detentions, (1) ; at 691 and 693. 214 It therefore conferred a benefit and cannot be deemed unreasonable. Sub section (3) of 'section 11 A shows that that was the object. But the petitioner attacked the provisions on the ground of discrimination. She said that even assuming the new classification of detentions into those before and after the 30th of September, 1952, to be good, section 11 A is nevertheless discriminatory because it discriminates amongst those in her class,, namely those whose detentions were made and confirmed before the 30th of September. She put it in this way. Taking the case of her own detention, she pointed, out that if section II A is good, it will continue till the 1st of April, 1953, that is to say, her detention will have been for a period of 17 1/2 months from the 16th of October, 1951, till the 1st of April, 1953. 'On the other hand, a person detained after her on, say, the last of September, 1952, would also be due for release on the 1st of April, 1953, and so would have had only six months ' detention. This, in our opinion, is not discrimination within the meaning of article 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting an outside limit, land it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time. Government is not bound to detain everybody for the same length of time. , It has a discretion. Moreover, the appropriate Government has boon left power to revoke or modify the detention order at any earlier time. This point was considered in Shamrao V. Parulekar vs The District Magistrate, Thana, & Others (1) and was decided against the detenu. The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague. She relies on Shamrao V. Parulekar vs The State, of Bombay (2) where (1) ; at 691 at 693. (2) Petition No. 86 of 1952. 215 another detenu was released by another Bench of this Court in circumstances which., according to her, are very similar. We are unable to allow this as her petition has already been rejected on the merits. She was only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court. The application is dismissed. Application dismissed.
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Section 11A was added to a law from 1950 by an update in 1952. It said that the longest time someone could be held under a detention order (an order to keep someone in custody) that was approved under section 11, was 12 months from when they were first detained. But subsection (2) made this rule more specific. It split detentions into two groups: (a) those approved before September 30, 1952, and (b) those approved after that date. For the first group, unless the detention order said a shorter time, the detention would last until either April 1, 1953, or 12 months from when they were detained, whichever was later. It was decided that this section did not go against article 14 or article 22 (7) (b) of the Constitution just because it created a new way to group detentions (before and after the law). This grouping was seen as fair. The section didn't unfairly treat people whose detentions were approved before September 30, 1952. This is because, as a result of the section, some people might be held for longer, and others for shorter periods. This follows the decision in the case of Shamrao Parulekar vs The District Magistrate, Thana and Others. Also, a detention order made on October 16, 1951, that didn't say how long the detention would last, was not a case where "a shorter period was specified in the order" according to section 11A (2). This is true even if the detention would have ended on either March 31, 1952, or September 30, 1952, if the law had not been changed.
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Appeal No.122 of 1956. Appeal from the judgment and order dated March 5, 1954, of the Bombay High Court in Appeal from its Original Jurisdiction Misc. 1 of 1954. H. N. Sanyal, Addl. Solicitor General, G. N. Joshi and R. H. Dhebar, for the appellants. N. A. Palkhivala, section N. Andley, J. B. Dadachanji, P. L. Vohra and Rameshwar Nath, for the respondent. The Judgment of the Court was delivered by GAJENDRAGADKAR J. This is an appeal by the Income tax Officer, Companies Circle I (1), Bombay and the Union of India and it raises a short question about the construction of section 35 of the Income tax Act read with section 1, sub section (2) and section 13 of the Indian Income tax (Amendment) Act, 1953 (XXV of 1953). The Income tax Officer, by his assessment order made on October 9, 1952, for the assessment year 1952 53, assessed the respondent, the Bombay Dyeing and Manufacturing Co. Ltd., under the Act. In the said assessment order the respondent, was given credit for Rs. 50,603 15 0 as representing interest at 2% on tax paid in advance under section 18A of the Act. This credit was given to the respondent in pursuance of the provisions contained in section 18A, sub section (5) of the Act as it then stood. Section 1, sub section (2) of the Amendment Act provides that " subject to any special provision made in this behalf in the Amendment Act, it shall be deemed to have come into 705 force on the first day of April, 1952 ". By section 13 of the Amendment Act, a proviso was added to section 18A (5) of the Act. The effect of the amendment made by the insertion of the said proviso to section 18A (5) was that the. assessee was entitled to get interest at 2% not on the whole of the advance amount of tax paid by him as before but only on the difference between the payment made and the amount at which the assessee was assessed to tax under the regular assessment under section 23 of the Act. After the Amendment Act was passed, the first appellant exercised his power under section 35 of the Act and purported to rectify the mistake apparent from the record in regard to the credit for Rs. The first appellant held that the assessee was really entitled to a credit of only Rs. 21,157 6 0 by way of interest on tax paid in advance as a result of the retrospective operation of the amendment made in section 18A (5) by the Amendment Act. In accordance with this order a notice of demand under section 29 of the Act was issued against the assessee for the sum of Rs. 29,446 9 0 on the ground that the assessee had been given credit for this excess amount through mistake. Aggrieved by this notice of demand, the respondent filed a petition in the High Court of Bombay on January 4, 1954, under article 226 of the Constitution praying for a writ against the appellants inter alia prohibiting them from, enforcing the said rectified order and the said notice of demand. It appears that this petition was admitted by Tendolkar J. on January 6, 1954, and a rule issued on it. Accordingly on March 5, 1954, the petition was heard by Chagla C. J. and Tendolkar J. and a writ was issued against the appellants. The High Court held that section 35 of the Act had no application to the facts of the case because the mistake apparent from the record contemplated by the said section is not a mistake which is the result of the amendment of the law even though the amending law may be retrospective in operation. In other words, in the opinion of the High Court, the 706 mistake mentioned by section 35 had to be apparent on the face of the order and it can only be judged in the light of the law as it stood on the day ,When the order was passed. The appellants then applied for and obtained a certificate from the High Court on October 8, 1954; on their behalf it is urged ' that the High Court of Bombay has erred in law in taking the view that the appellant No. I was not entitled to rectify the mistake in question under section 35 of the Act. Thus the short question which arises before us in the present appeal is whether an order which was proper and valid when it was made can be said to disclose a mistake apparent from the record if the said order would be erroneous in view of a subsequent amendment made by the Amendment Act when the Amendment Act is intended to operate retrospectively ? It is unnecessary to refer to the provisions of section 18A (5) as well as the provision of the proviso which was subsequently added by section 13 of the Amendment Act. It is common ground that, in the absence of the subsequently inserted proviso, the assessee would be entitled to obtain a credit for Rs. It is also common ground that, if the subsequently inserted proviso covered the assessee 's case, he would be entitled to a credit only of Rs. It is thus obvious that the order giving the relevant credit to the assessee was valid when it was made and that it would be erroneous under the subsequent amendment. In deciding this question it would be necessary to determine the true legal effect of the retrospective operation of the Amendment Act. Section 1, sub section (2) of the Amendment Act expressly provides that subject to the special provisions made in the said Act it shall be deemed to have come into force on the first day of April 1952. The result of this provision is that the amendment made in the Act by s, 13 of the Amendment Act must, by legal fiction, be deemed to have been included in the principal Act as from the first of 707 April, 1952, and this inevitably means that, at the time when the Income tax Officer passed his original order on October 9, 1952, allowing to the respondent credit for Rs. 50,603 15 0, the proviso added by section 13 of the Amendment Act must be deemed to have been inserted in the Act. As observed by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. vs Finsbury Borough Council (1), " if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs ". Thus, there can be no doubt that the effect of the retrospective operation of the Amendment Act is that the proviso inserted by the said section in section 18A (5) of the Act would, for all legal purposes, have to be deemed to have been included in the Act as from April 1, 1952. But it is urged for the respondent that the retrospective operation of the relevant provision is not intended to affect completed assessments. It is conceded that, if any assessment proceedings in respect of the assessee 's income for a period subsequent to the first of April 1952 were pending at the time when the Amendment Act was passed, the proviso inserted by section 13 would govern the decision in such assessment proceedings; but where an assessment proceeding has been completed and an assessment order has been passed by the Income tax Officer against the assessee, such a completed assessment would not be affected and cannot be reopened under section 35 by virtue of the retrospective operation of the Amendment Act. In support of this contention, reliance is placed on the observations of the Privy Council in Delhi Cloth and (1) , 132. 90 708 General Mills Co. Ltd. vs Income tax Commissioner, Delhi and Anr. Lord Blanesburg who delivered the judgment of the Board referred to the Board 's earlier decision in the Colonial Sugar Refining Company vs Irving (2) where it was in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The learned Judge then added that " Their Lordships have no doubt that the provisions which, if applied retrospectively, would deprive of their existing finality orders which, when that statute came into force, were final, are provisions which touch existing rights. " The argument for the respondent is that the assessee has obtained a right under the order passed by the Income tax Officer to claim credit for the specified amount under section 18A(5) and the said right cannot be taken away by the retrospective operation of section 13 of the Amendment Act. The same argument is put in another form by contending that the finality of the order passed by the Incometax Officer cannot be impaired by the retrospective operation of the relevant provision. In our opinion, this argument does not really help the respondent 's case because the order passed by the Income tax Officer under section 18A(5) cannot be said to be final in the literal sense of the word. This order was and continued to be liable to be modified under section 35 of the Act. What the Income tax Officer has purported to do in the present case is not to revise his order in the light of the retrospective amendment made by section 13 of the Amendment Act alone, but to exercise his power under section 35 of the Act; and so the question which falls to be considered in the present appeal. The respondent then urged that the Amendment Act should not be given greater retrospective operation than its language and its general scheme render necessary. This convention is based on the provisions of section 3, sub section (2), section 7, sub section (2) and section 30, sub section (2) of the Amendment Act. Since section 13 does not specifically authorise the reopening of concluded assessments it should be held that its retrospective operation is not intended to cover such concluded assessments. That in brief is the argument. We are, however, not satisfied that this argument is wellfounded. Section 3, sub section (1) of the Amendment Act makes several additions and modifications in section 4 of the principal Act. Section 3, sub section (2) then provides that, the amendments made by sub cl. (b) of sub section (1) shall be deemed to be operative in relation to all assessments for any year whether such assessments have or have not been concluded before the com mencement of the Amendment Act of 1953. It would be noticed that the main object of this sub section is to extend the retrospective operation of the relevant provisions of the Amendment Act beyond the first of April 1952 mentioned by section 1, sub section (2) of the Amendment Act. Since it was intended to provide for such further retrospective operation of the relevant provision the legislature thought it advisable to clarify the position by saying that the said extended retrospective operation would cover all assessments whether they had been completed or not before the commencement of the Amendment Act. Section 7, sub section (1) adds two provisos to section 9 of the principal Act by cls. (a) and (b). Sub section (2) of section 7 then lays down that the amendments made in cl. (a) of sub section (1) shall be deemed to be operative for any assessment for the year ending the 31st day of March, 1952, whether made before or after the commencement of this Act and, where any such 710 assessment has been made before such commencement, he Income tax Officer concerned shall revise it whenever necessary to give effect to this amendment. The position under section 30, sub section (2) of the Amendment Act is substantially similar. By sub section (1) of this section certain additions and amendments are made in the schedule to the principal Act by cls. (a), (b), (c) and (d). sub section (2) then provides for the retrospective operation of the amendment made by sub section (1) in terms similar to those used in section 7, sub section It is clear that the Provisions in sections 7 and 30 are intended for the benefit of the assessees and so the legislature may have thought it necessary to confer on the Income tax Officer specific and express power to revise his orders in respect of the relevant assessments wherever necessary to give effect to the amendments in question. The effect of this provision is to make it obligatory on he Income tax Officer to revise his original orders in he light of the amendments and also to confer on the assessee right to claim such revision. It may be con ceded that in respect of the other retrospective provisions of the Amendment Act such a power to revise the earlier orders cannot be claimed or exercised by the Income tax Officer. In other words, a distinction can be drawn between there two provisions of the Amendment Act and the rest in respect of the power which the Income tax Officer can purport to exercise to give effect to the amendments made by the Amendment Act. Whereas, in respect of the amendments made by section 7 and section 30 of the Amendment Act, the Income tax Officer can and must revise his earlier orders covered by section 7, sub section (2) and section 30, sub section (2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act. Even so, we do not think it would be legitimate or reasonable to hold that the provisions of section 7(2) and section 30(2) lead to the infference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever. In this connection, it would be pertinent to remember that the power to revise which has been conferred on 711 the Income tax Officer by section 7(2) and section 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which the Income tax Officer can exercise under section 35 of the Act. It is in the light of this position that the extent of the Income tax Officer 's power under section 35 to rectify: mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression " mistake apparent from the record " has to be ascertained. At the time when the Income tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603 15 0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under section 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of section 18A(5) of the principal Act as from April 1, 1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record. That is why we think that the Income tax Officer was justified in the present case in exercising his power under section 35 and rectifying the said mistakes. (1)(1957) 712 In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner of [Income Tax, Bombay Presidency and Aden vs Khemchand Ramdas (1). In Khemchand 's case, the assessees were registered as a firm and they were assessed under section 23(4) on an income of Rs. Being a registered firm no super tax was levied. A notice of demand was also made before March 1927. On February 13, 1928, the Commissioner, in exercise of his powers under section 33, cancelled the order registering the assessee as a firm and directed the Income tax Officer to take necessary action. The Income tax Officer accordingly assessed the firm to super tax on May 4, 1929. The Privy Council held that the assessment made on January 17, 1927, was final both in respect of the income tax and super tax. The fresh action taken by the Income tax Officer on May 4, 1929, was out of time though it had been taken in pursuance of the directions of the Commissioner and that the order of May 4, 1929, was one which the Income tax Officer had no power to make. One of the points raised before the Privy Council was whether, under the relevant circumstances the Income tax Officer had power to make the impugned order in view of the provisions of sections 34 and 35 of the Act. The Privy Council dealt with this question on the footing that the Commissioner 's order cancelling the registration had been properly made. On this basis their Lordships thought that it was unnecessary to consider whether the. case would attract the provisions of section 34 " inasmuch as in Their Lordships ' opinion the case clearly would have fallen within the provisions of section 35 had the Income tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents ". The judgment shows that Their Lordships took the view that looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents ' registration and the order effecting the cancellation would have formed part of the record it would be apparent that a mistake (1)(1938) L.R. 713 had been made in stating that no super tax was leviable. This decision clearly shows that the subsequent cancellation of the assessees ' registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under section 35 of the Act. It is because Their Lordships thought that section 35 would have been clearly applicable that they did not decide the question as to whether section 34 could also have been invoked. This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression " the mistake apparent from the record " occurring in section 35. We must accordingly hold that the High Court of Bombay was in error in coming to the conclusion that the notice issued by the Income tax Officer calling upon the respondent to pay 9the sum of Rs. The result is the order passed by the High Court issuing a writ against the appellant is set aside and the appeal is allowed with costs throughout. Appeal allowed.
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The Income Tax Officer made an order on October 9, 1952. This order said the person had to pay taxes for the year 1952-53. The order also gave the person credit for about 50,603 rupees. This was for interest on taxes paid early, as allowed by a rule in the Income Tax Act. On May 24, 1953, a change to the Income Tax Act became law. This change added a condition to the rule about interest on early tax payments. The new condition said the person would get interest only on the difference between what they paid early and the final amount they owed. They wouldn't get interest on the whole early payment. The changed law said it was to be considered in effect from April 1, 1952. The Income Tax Officer used another rule in the Act to correct the original order. He said the person should only get about 21,157 rupees in interest because of the change to the early tax payment rule. This change was applied to the past. The officer then sent a notice to the person demanding about 29,446 rupees, which was the difference. The person filed a request with the High Court of Bombay. They asked the court to stop the tax authorities from enforcing the corrected order and demand for payment. They used a part of the Constitution to make this request. The High Court agreed with the person and issued an order stopping the tax authorities. They said the rule used to correct the order did not apply in this case. The court said the mistake had to be clear just by looking at the original order. The court also said the order had to be judged based on the laws at the time it was made. However, it was decided that the Income Tax Officer was right to correct the mistake using the rule. Because of the way the changed law was written to apply to the past, the new condition must be seen as part of the original early tax payment rule from April 1, 1952. This means the Income Tax Officer's first order, from October 9, 1952, did not follow the new condition. It had a mistake that was clear from the record. Two previous cases were mentioned as relevant examples. The order made by the Income Tax Officer about early tax payments was not truly final. It could be changed later under the rule about correcting mistakes. It is also not right to say that the change to the early tax payment rule was not supposed to affect past situations that were already settled.
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